Re: Vyner v Vyner - [1999] QSC 198

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.7769 of 1996
Before the Hon. Mr Justice Shepherdson
[re: Vyner v Vyner]

RE: ALEXANDER JAMES VYNER DECEASED AND
  LYNETTE MARCIA VYNER DECEASED
GAVIN JOHN VYNER
  Plaintiff
  and
LESLIE JAMES VYNER
  Defendant
BY ORIGINAL ACTION
LESLIE JAMES VYNER
  Plaintiff
  and
GAVIN JOHN VYNER
  Defendant
BY COUNTER-CLAIM

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 24 August 1999
CATCHWORDS: WILLS, PROBATE AND LETTERS OF ADMINISTRATION -CONDITION, FORFEITURE AND GIFT-OVER - LEGALITY AND PUBLIC POLICY - plaintiff claims entitlement under the wills of his mother and his father - both wills left estate to plaintiff and defendant in equal shares - cross-claim that plaintiff precluded from taking his share - plaintiff admits that he shot and killed both his parents - plaintiff claims that his actions were excused at law due to his unsoundness of mind which was operating at the time of the killings - whether the forfeiture rule precluded the plaintiff from taking under each will - whether at the time of each killing the plaintiff’s mental condition was such as to bring him within s27 of the Criminal Code.

Counsel: Mr K Lynch with Mr C Clark for the plaintiff
No appearance for the defendant

Solicitor: Walker Pender for the plaintiff
No appearance for the defendant

Hearing date: 12 and 13 August 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.7769 of 1996
Before the Hon. Mr Justice Shepherdson
[re: Vyner v Vyner]

RE: ALEXANDER JAMES VYNER DECEASED AND
  LYNETTE MARCIA VYNER DECEASED
GAVIN JOHN VYNER
  Plaintiff
  and
LESLIE JAMES VYNER
  Defendant
BY ORIGINAL ACTION
LESLIE JAMES VYNER
  Plaintiff
  and
GAVIN JOHN VYNER
  Defendant
BY COUNTER-CLAIM

REASONS FOR JUDGMENT - SHEPHERDSON J.
Judgment delivered 24 August 1999

The plaintiff and the defendant are brothers. Their parents were Alexander James Vyner and Lynette Marcia Vyner both of whom lived at Lot 6 Garden Road, Cedar Creek near Beenleigh in Queensland.
On or about 31 July 1992 at their home the plaintiff shot and killed his parents.
Each of his parents left a will dated 28 November 1980. In terms of each will each parent's estate passed to the plaintiff and defendant in equal shares.
In each parent's estate this Court, on 23 August 1993 granted to the defendant letters of administration with the will annexed.
On 18 September 1996 the plaintiff began this action by issuing a writ. In his statement of claim, the plaintiff has sought the following relief:
1.A declaration that he is entitled to share as a beneficiary under the will of his father.
2.An order that the defendant distribute to the plaintiff all that to which he is entitled as a beneficiary under the will of his father.
3.A declaration that he is entitled to share as a beneficiary under the will of his mother.
4.An order that the defendant distribute to the plaintiff all that to which he is entitled as a beneficiary under the will of his mother.
5.Interest.
Other relief was sought to which it is unnecessary to refer.
In his defence and counter-claim, the defendant:
(a)admitted the dates of deaths of the parents, the terms of each will and the grants of letters of administration with the will annexed;
(b)denied that the plaintiff was entitled to any relief;
(c)alleged that the plaintiff unlawfully shot and killed each of his parents and thereby forfeited his entitlement to share in the estate of each parent;
(d)sought declarations that the plaintiff is not entitled to share as beneficiary under the will of either parent.
By his reply and answer to the counter-claim the plaintiff admitted that or about 31 July 1992 he shot and killed his parents but pleaded "that his actions were excused by law by virtue of the fact that he was of unsound mind at the time this occurred".
The principal issue in the case is whether or not each of the admitted killings was excused by law. Resolution of this issue depends on whether or not at the time of each killing the plaintiff was not criminally responsible for each killing in accordance with s 27 of the Criminal Code of Queensland.
The phrase "excused by law" used in the reply comes from s 291 of the Criminal Code which provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law.
I note that in terms of s 300 of the Criminal Code, any person who unlawfully kills another is guilty of a crime which is called murder or manslaughter according to the circumstances of the case. In the present case the defence alleges the plaintiff unlawfully killed the parents - in effect that in each case he was guilty of the crime of manslaughter.
"Chapter 5 - Criminal Responsibility" is contained in ss 22 to 36 (both inclusive) of the Criminal Code.
By s 26 of the Code "Every person is presumed to be of sound mind and to have been of sound mind at any time which comes in question, until the contrary is proved".
Thus, in the present case the plaintiff is presumed to have been of sound mind at the time of each killing.
Before me, the plaintiff bears the onus of establishing by evidence that at the time of each killing his mental condition was such as to bring him within s 27 of the Criminal Code. Section 27 provides:
"Insanity
27 (1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person's doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of sub-section (1) is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist."
In the present case, I am concerned only with sub-s 27(1).
The defendant did not appear at the trial of this action. His former solicitors on the record, Mahoney and Hesford of Beenleigh, did appear out of courtesy to the court. Mr Oliver of counsel represented them and later Mr Porter of Mahoney and Hesford appeared to instruct Mr Oliver. They then withdrew before the trial began.
Exhibit 1 before me consisted of two facsimile documents being first a single page letter dated 6 August 1999 from the defendant addressed to:
"The Supreme Court
Brisbane
C/o Mahoney and Hesford
............................................
Attn Mr Greg Porter
Fax 0061 738072191."
The second document consisted of two pages the first being entitled in the heading of this action followed by "Notice that Party Acting in Person" and addressed to the plaintiff, Gavin John Vyner and his solicitors. This latter document stated that Leslie James Vyner was no longer represented in this action and counter-claim by Mahoney and Hesford and that Leslie "is now acting in person".
Both documents in Exhibit 1 contain facsimile copies of signatures of Leslie James Vyner. Each document contained an address in Brunei and also an E-Mail address. The two page document contained the following address for service:
"Unit 4
Mark Place
92-94 Wynyard Street
CLEVELAND QLD 4163"
After hearing from Mr Oliver, I was satisfied that Mahoney and Hesford having received Exhibit 1 from Leslie Vyner, then by virtue of Rule 986 (3) of the Uniform Rules of Court, ceased to be his solicitors on the record.
I turn now to the letter dated 6 August 1999 which is part of Exhibit 1. It relevantly said:
"TO WHOM IT MAY CONCERN
The following acts as advice to whom ever it may concern that I, Leslie James Vyner, in the matter of Vyner vs Vyner to be held on the 12th and 13th of this month, am unable to field any representation for the following reasons.
a)I am currently residing in Brunei, Borneo and due to insufficient funds am unable to return to Australia at this time to be present at the hearing
b)I am currently unemployed and can see no way to be able to produce these funds in the foreseeable future.
c)I am unable to retain the services of Mr. Greg Porter at this time due to my current financial situation.
d)I hereby request that this case be heard fairly and without prejudice despite my inability to provide representation or to be present and will have no bearing on the outcome of the said hearing."
In this letter the defendant Leslie James Vyner did not seek any adjournment of the trial. On 14 May 1999 the trial had been set down for hearing on 12 and 13 August 1999.
From the bar table Mr Oliver informed me that Mr Porter had communicated with Leslie Vyner in Borneo by E-Mail on the Internet, and that in telephone discussions Mr Porter had with Leslie on Wednesday 11 August 1999, Leslie did not ask that the trial be adjourned.
As the transcript shows, I decided to proceed with the trial in the absence of Leslie James Vyner. I did this for a number of reasons which are:
1.Leslie did not seek any adjournment and in fact in Exhibit 1 requested that the case "be heard fairly and without prejudice despite my inability to provide representation or to be present and will have no bearing on the outcome of the said hearing".
2.The only issue to be tried concerned proof by Gavin that he was of unsound mind at the time of each admitted killing.
3.The killings occurred over seven years ago; there had been no attempt made by Leslie's solicitors to obtain evidence to rebut the psychiatric evidence on which the solicitors knew Gavin would rely at the trial of the present action (due in part I am satisfied to lack of funds from Leslie); although Leslie had not been sent copies of the reports of the three psychiatrists on which Gavin's counsel would rely at the trial, Leslie had been present during all the proceedings of the Mental Health Tribunal in 1993 concerning Gavin and was aware of the nature of those proceedings and findings made by that Tribunal. Consequently, Leslie must have heard the evidence from these same three psychiatrists then given albeit some six years ago.
4.Mr Oliver informed me from the bar table that Leslie was told that the evidence at the trial in the present action "would be presented by the psychiatrists who appeared in the Mental Health Tribunal [and] would be very difficult to rebut". (T18)
5.In Exhibit 1, Leslie has said that he currently resides in Brunei, and due to insufficient funds is unable to return to Australia "at this time to be present at the hearing", that he is currently unemployed and can see no way to be able to produce these funds in the foreseeable future.
6.The justice of the case really demanded the action be tried on 12 and 13 August - both sides must have signed a certificate of readiness - I did not see that Leslie's absence would prejudice his defence and counter-claim.
I should now state that a number of witnesses were called to give oral evidence before me. All witnesses (apart from the three psychiatrists) had signed statements not long after 31 July 1992. These statements were made while these witnesses' memories of events relevant to the killings were no doubt better than they are today. Photocopies of the witnesses' signed statements were tendered in evidence and each witness swore to the correctness of his and her statement.
Copies of these statements had been provided to the psychiatrists who gave evidence before me. Not all the evidence placed before the psychiatrists before each gave his and her opinions in 1993 was put before me. It appeared the statement evidence before me was from those witnesses which Mr Lynch and Mr Clark who appeared for the plaintiff Gavin, regarded as necessary. This is not to say that other evidence placed before the psychiatrists and not called before me was irrelevant to the formation by the psychiatrists of their respective opinions. Had all that other evidence been called before me the costs in this case would have ballooned unnecessarily. I thought their approach to the presentation of Gavin's case before me was reasonable and cost saving given that all three psychiatrists agreed on the issue of Gavin's unsoundness of mind at the time of each killing.
Before turning to the evidence given before me, I should say that I was informed from the bar table when Mr Oliver was present that Gavin was charged with murder of each of his parents, that there were committal proceedings in respect of these charges, but that Gavin was never tried on either charge because at a hearing of the Mental Health Tribunal that Tribunal found that at the time of each killing Gavin was of unsound mind and within s 27 of the Criminal Code. That finding by the Tribunal is not relevant to the present action.
The plaintiff who I shall refer to as Gavin and who was born on 8 June 1966 gave oral evidence before me. He is pre-lingually deaf, and gave evidence through a properly qualified interpreter. He wore a hearing aid or aids and was to some extent able to hear; he was able to lip read and to a limited extent make himself understood by the spoken word. I thought he was a truthful witness. When asked in evidence before me what he remembered of the circumstances of his parents' death he said "I remember the gun and I shot my parents that's about all". He told me he could not remember anything of what was going on in his mind when his parents were shot. He recalled having seen Dr Jill Reddan (a psychiatrist) and said that when he spoke to her he was trying his best to tell her the truth. Gavin was able to tell me that on the morning after the shootings he saw Nicole Eisel and Alfred Eisel who had come to his parents' home and that he was able at that time to communicate with these two persons.
Nicole Eisel gave oral evidence. On 1 August 1992 she was aged 16 years and lived with her parents Alfred and Karen not far from Lot 6 Garden Road, Cedar Creek. She gave police a signed statement on 1 August 1982 and that statement is Exhibit 2 before me. She had an arrangement with Lynette Marcia Vyner to help clean the house at lot 6 each fortnight. At about 8.25 am on 1 August, she arrived at lot 6 and found both Mr and Mrs Vyner still in bed. It appears from her statement that this was rather unusual and Nicole believed they were asleep. She had walked to the door of their bedroom and looked in. On the way she saw what she described as little bullet shells along the hallway to their room. Believing the Vyners to be asleep she did not start her usual routine. She knew Gavin who also resided at lot 6. She did not see Gavin that morning until he arrived at about 9.15 am. She told him (by acting out) that his parents were asleep and in response to his question as to when she had arrived at lot 6 she said "eightish". Gavin told her he was tired and was going to sleep too and went outside the house. After four or five minutes he returned and walked down the hallway stopping at the shells in the hallway. She saw Gavin pick up a shell and said he looked at her with a puzzled expression on his face. She followed Gavin into the bedroom and then saw Mr and Mrs Vyner had been shot. On p 5 of her statement she said, on speaking of events after she had entered the bedroom:
"I saw that Gavin was really mad and he kicked the screen door open really hard and went outside and stood there. I went outside and tried to put my hand on his back put he did not want anybody."
Nicole then telephoned her father, Alfred Eisel and asked him to come to the house.
Alfred Eisel's signed statement is dated 3 August 1992 and is Exhibit 3. Alfred Eisel who in 1992 was a house painter gave oral evidence. He and his family were "pretty friendly" with the Vyners and regularly visited them. He knew Gavin was partially deaf and lived with his parents. Following his daughter's telephone call on 1 August, he immediately went to lot 6 accompanied by his wife. Inside the house he saw Mr and Mrs Vyner lying in bed with several bullet holes in their heads. He caused the police to be called. He saw Gavin crying and asked him "Do you know who done it?" but Gavin raised his hands, shrugged his shoulders and mouthed "I don't know". He later said to Gavin "Gavin be strong", but Gavin just shook his head.
Karen Margaret Eisel gave a signed statement dated 2 August 1992 (Exhibit 5). She was then a Wardsperson Supervisor at Princess Alexandra Hospital, Brisbane. Mrs Eisel accompanied her husband Alfred to the Vyners' house on the morning of 1 August. She did not enter with her husband. She telephoned the police. In her statement to police (Exhibit 5) she made the following comments:
"I knew that Lyn was pretty hard on Gavin, she rode him a bit and treated him like a child and put a lot of restrictions on him. I think Gavin wanted to be treated like a normal person. I saw that Lyn and Charlie were happy together and there were times that I was there that Lyn would embarrass Charlie and Gavin, she would sometimes have an acid tongue towards them. She was alway very generous towards my whole family. Charlie was very easy going and everyone liked him he would do anything for. [anyone?] Gavin was good bloke he would get stroppy sometimes but all he wanted was to be friendly. We used to see a lot of him but over the last two years he drifted away. ... I also knew that Lyn and Gavin had gone to counselling about three months ago because of an argument they had had. Lyn told me that it was because their differences could not be resolved and she thought that counselling may help. I know that they did not see through the counselling to the end but gave it away because they seemed to be going well."
(I ignore the last two sentences above quoted on grounds of hearsay). Karen Eisel gave oral evidence before me.
Maria Kelleher was another witness who gave oral evidence before me. On 6 August 1992 she gave police a signed statement (Exhibit 6). Mrs Kelleher was a married woman residing with her husband and two children at Kingston. She knew Gavin having first met him through a support group for the deaf which was called Breakthrough. At that time she acted as interpreter for that group which had been in operation for about two years. Gavin Vyner first came to the group about 12 months prior to 6 August 1992 - the group met every Monday at the Kingston East Neighbour Centre. She was able to say that Gavin was able to speak although he spoke in a very soft tone, that his dictation (sic) was not always clear and his speech sounded as if it was slurred - he could also lip read.
In her statement she spoke of Gavin generally getting along with everybody until about three to four months prior to 6 August 1992. She said Gavin then stopped coming to the support group and she later heard that his grandmother had died. He also stopped coming to Mrs Kelleher's home. In her statement she said this:
"About two to three months ago he came to my home and he told me that he had been to the hospital about his brain. Physically, Gavin looked very gaunt and had obviously lost weight. Even his dress was not as he normally dressed in that he appeared very untidy. Gavin also spoke about his grandmother's death and that there were problems about the settling of her possessions. Gavin was talking about reading lots of books and I wondered about what kind of books they were as he sounded very confused.
Gavin had stopped into my home very briefly on a couple of occasions after this date but I do not recall any particular conversations, however I did notice that he was still losing a lot of weight.
About a month ago Gavin came around to my home and he spoke about a box that his grandfather owned and that his grandfather and he could speak to aliens through this box. His conversation was very confusing and he was jumping from one subject to another. He mentioned that his grandfather was a very powerful man but he was indicating that he had special powers. He mentioned that his grandfather had a lot of books and I believe that it was these books that were making Gavin confused. I told Gavin to look after himself and to start eating and he later left my home.
About two weeks ago on a Thursday, Gavin Vyner came around to my home and I was about to go out. Gavin stayed and had a talk to my husband and I left. Later my husband told me that Gavin believed that it was a Sunday and was surprised to find us home. My husband had to show Gavin a newspaper for him to believe that it was a Thursday. I never saw Gavin Vyner after that day. I never met Gavin Vyner's parents."
(Excluding the final sentence the three preceding sentences in the above extract contain hearsay evidence which I ignore)

In her oral evidence before me, Mrs Kelleher told me that she thought Gavin's claim that he could speak to aliens through the box was very strange and that she was very concerned. She emphasised that she was very, very concerned about Gavin's health when he called to see her a couple of weeks before 6 August 1992.
Allan John Paulsen in 1992 was a community correctional officer. He gave police a statement on 3 August 1992 and gave oral evidence before me. He first met Gavin a short time before October 1990 when he interviewed Gavin for a presentence report to a District Court Judge in Brisbane, relating to Gavin having pleaded guilty to a charge of assault occasioning bodily harm with a circumstance of aggravation, that offence having occurred in January 1990. The judge had asked for psychiatric and psychological assessments on Gavin. Gavin kept appointments to see Dr Walsh a psychiatrist with the Brisbane Psychiatric Clinic, and Mr Russell Wilson a psychologist. Mr Paulsen received reports from these two persons and they were sent to the judge in late 1990.
Gavin was placed on probation for three years and was required to perform 200 hours unpaid community service. One condition of the probation order was that Gavin undergo such appraisals and assessments by the Queensland Deaf Society or any like organisation as the Community Correctional Officer might require. In February 1991, Mr Paulsen instructed Gavin to attend the deaf club held at the Kingston East Community Centre on Monday nights and he did this on a regular basis. Mr Paulsen later became aware that Gavin began to attend Garden City Outreach Centre at Mt Gravatt as a result of the influence of some people Gavin had met at the deaf club. He spoke of dealings with Gavin in late 1991 and early 1992 when Gavin believed he was madly in love with a young woman named Rebecca who was not interested in a serious relationship with Gavin.
This aspect appears not to have been of any major concern. However, the following passages in Mr Paulsen's statement appear to have been of concern and I now set them out:
"I recall a conversation on the 9th April 1992 at my office with Gavin when he began talking about "spirits" which he claimed he could see in crystal balls. I recall him mentioning that he was very concerned that Rebecca was in possession of some sought (sic) of crystal ball and that he knew it was dangerous for her to be involved with it.
I became concerned at this stage with Gavin and made an appointment for Gavin and I to see Mt (sic) Ray Hilsden, a counsellor, with the Queensland Defa (sic) Society. Before attending this appointment Gavin and his parents went to Victoria on 19th April 1992 to attend the funeral of Gavin's grandmother. (Gavins fathers mother)
On 6th May 1992 I received a phone call from Lyn Vyner advising me that she had become very concerned about Gavins reaction to the grandmothers death and funeral. As a consequence she advised me that she had got Gavin to see a psychiatrist at Woodridge Psychiatric Clinic by the name of Dr Leong. She told me that she was very concerned about Gavins interest in things associated with the "spirit world". I advised her that I shared those concerns which resulted in making the appointment with Ray Hilsden (sic).
(This conversation with Lyn Vyner is hearsay and I ignore it)
On 13th May 1992 I notified Gavin about the appointment when he was at my office. He spoke to me about his close relationship with his grandparents in Mount Beauty, Victoria, when he was a child. On this occasion he gave me to understand that his grandmother use (sic) to speak to him alot about the bible and his grandfather gave him some exposure to books and symbols associated with the grandfathers Buffalo lodge.
On 26th May 1992 Gavin spoke at length to Ray Hilsden (sic) and myself at the office of the Queensland Deaf Society about the special nature of the books and objects in his possession passed on to him from his grandparents. Gavin spoke about how he often saw shados (sic) moving around his bedroom whilst he was lying in bed in the caravan. He also spoke about how his mothers eyes changed colour. He said he could see the eyes change colour and he associated that with evil.
On 2nd June 1992 I visited Gavin at his parents property I spoke with him in the annex of his caravan. He showed me the books about which he had been talking about on the 26th May. I saw that these books were mainly old bibles, hymn books and there was one significant high school mathematics book. Gavin kept repeating to me 'that these books were special'. It appeared to me that Gavin cheerished (sic) many of his grandparents possessions wheich (sic) he now had.
On 18th June 1992 I again spoke with Gavin in my office. He gave me to understand that he was still unpacking boxes of his grandparents possessions which had come up from Victoria. I asked Gavin whether he had seen the shadow since we last spoke on the 2nd June 1992 and he advised me that he had only seen the shadow briefly on one occassion (sic) since then.
On 15th July 1992 I spoke with Gavin at my office. He was trying to explain things about words and books but I was unable to follow him because whenever I asked him to clarify something he invariably shrugged and said 'its very difficult'. Because of his ongoing fascination with these books I encouraged him to stop spending his time reading them and to get himself involved in phsicalk (sic) activity around the family property. On this occassion (sic) he admitted to me that his grandparents books confused him.
Since this last meeting with Gavin I received a telephone call from his mother, Lyn, in which she advised me that she was most concerned about Gavin and that she even feared that he maybe becoming suicidal. During this conversation she also advised me that Gavin had yelled at her and stormed out of the house because he saw some craft work she had made which featured some type of blue stone in it. I have not had any contact with the family since. I became aware at about 1pm on Saturday 1st August 1992 that Lyn and Charlie Vyner had died."
(The conversation with Lyn Vyner is hearsay and I ignore it)
Raymond Russell Hilsdon gave oral evidence before me and verified a photocopy of a statement dated 18 August 1992 which he had given to the police (Exhibit 8). At that time he was employed by the Queensland Deaf Society in the capacity of Community Services Co-ordinator. Mr Hilsdon held at the time a "Master in Education, Diploma in Community Welfare and a National Accreditation and Authority of Translators and Interpreters Level 2". Part of his duties included providing counselling to the many pre-lingually and post-lingual deaf persons which attended the Deaf Society Centre. He first met Gavin Vyner during 1990. In his statement he said:
"I recall a meeting with Gavin and Alan Paulsen on 26 May 1992. Alan was concerned with Gavin talking about 'spirit' forms and 'secret books'. Gavin seemed to relate these items and events to either the Masonic or Buffalo Lodges and to various interactions with his grand-father. He indicated that the objects and forms communicated messages to him. He was the custodian of special objects some of which had been given to other family members after the grand-parent's death and the dissemination of the collection of pieces was of immense concern to him. Gavin referred in particular to a special book which gave him the secret meanings of terms and messages. Alan and I reviewed various lodge symbols and rituals seeking additional leads to aid our comprehension of some of Gavin's communication. (The rituals associated with blood, knives and sacrifice were a hypothetical link with the previous offence at the service station. I intended pursuing that further at a later date). As a result of this discussion Alan visited the Vyner residence to examine the books and objects Gavin was talking about, hoping to clarify the content, source and names of the books. I told Alan that the content of the conversations had changed considerably from the previous discussions. It was not characteristic of the deaf but was quite atypical and with similar clients had been indicative of a mental health problem. It was decided to arrange an appointment with a psychiatrist for Gavin.
The appointment with the psychiatrist was made for the 3 July 1992. I attended with Gavin, expecting to attend the interview but only an Interpreter was present with Gavin. Mrs Vyner and I waited outside.
On the 23 July 1992 Gavin Vyner unexpectedly visited the Queensland Deaf Society. He ushered me to the privacy of a room to tell me a special secret. He could tell me (and only me) because I knew about the lodge and his father (who he believed was dead) approved of my knowing the special secret. Gavin told me he had special/unusual feelings under the right foot, the result of an experience with "something". It was not an image or a light but a force. He expected me to see the mark but there was no mark. I reassured him that I accepted his story. Usually Gavin does not initiate conversation but in this instance he was enthusiastic and having told me about the experience he was keen to leave the office. I reminded him of his psychiatric appointment and reassured him that I would be there.
Later that day I phoned Mrs Vyner and asked her about the symbols. I suggested to her that a Lodge member, with myself interpreting, explain clearly to Gavin the concept of the lodges and the associated symbolism. Mrs Vyner believed the Buffalo lodge to be the more dominant and she agreed to locate a lodge member.
On 28 July 1992 Mrs Vyner phoned to inform me that she had located a lodge member who was willing to explain about the lodge to Gavin. She had contacted Alan and informed him that Gavin had particularly frightened her that day. He indicated a relationship between her blue eyes and a blue cross on a quilt; her slipper earrings and evil (ordered mum to take them off) and her cooking and efforts to poison him. I phoned Alan Paulsen and mentioned (a) Mrs Vyner's concerns (b) the plan to provide accurate conceptual information about the lodge and (c) my inability to access the psychiatric interview and general dissatisfaction with that psychiatric service.
(The last 2 of these paragraphs contain hearsay inadmissible evidence which I ignore)
I next saw Gavin at the family residence when called by police to the scene of the crime."
Mr Hilsdon attended lot 6 Garden Street on 1 August 1992. I should add that Mr Hilsdon did not do any interpreting at all when police were present with Gavin. Mr Hilsdon said he spoke to the police and asked permission to speak with Gavin and instructed the police that he would need to undertake the role of a community worker and that the police would need to bring in a qualified interpreter.
I mention now that the evidence from the witnesses Kelleher, Paulsen and Hilsdon indicates that not long before 31 July 1992 each of these persons was concerned about the thought processes and conduct of Gavin.
I heard oral evidence from police officers namely then Constable Alvyn John Servin of Beenleigh Police and then Constable Helen Susan Payne of Logan City Criminal Investigation Branch. Constable Servin's 26 page statement is Exhibit 9, and Constable Payne's 23 page statement is Exhibit 10. Constables Servin and Payne each recorded his and her recall of conversations with Gavin on 1 August. Gavin told the police officers that he lived in a caravan with his dog Bluey, and his parents lived "up at the house" on land which had an area of about nine to twelve acres. He told police that at about 9 pm on 31 July he left with Bluey for a drive and did not return until about 9 am on 1 August. I note that during Servin's interview with Gavin, Gavin gave him a deaf society card saying "you can give Ray a call he is a friend". This is an obvious reference to Mr Hilsdon who later that day came to Lot 6. Gavin spoke of having driven in the Beenleigh area and in Brisbane and having stopped on occasions. He told the police in effect that he had driven around for 12 hours up till 9 am on 1 August, that he had not slept at all and that he liked driving around with Bluey. He readily admitted that he had a .22 rifle and that he had bullets for that rifle.
Mr Clark also tendered a statement by Elizabeth Ackerman dated 4 August 1992 (Exhibit 11). This document was admitted under s 92 of the Evidence Act 1977 as Mrs Ackerman was too ill to attend court. It contained quite a large quantity of hearsay evidence from Mrs Lyn Vyner the dead woman. I ignore that evidence. I do however accept the following evidence in Mrs Ackerman's statement - "I am aware that Lyn Vyner's eyes are a green colour."
I thought all witnesses called were credible. I regard the contemporaneous statements from the witnesses as particularly reliable given that in my view each maker of a statement was credible and at the time of making the statement doing his and her best to recall correctly events recorded in his or her statement.
I come now to the psychiatric evidence. The principal evidence was given by Dr Jill Georgina Reddan. Exhibit 4 is a 38 page report on Gavin Vyner which Dr Reddan prepared having regard to matters specified in s 30 of the Mental Health Act 1974-1991. The report is addressed to Dr Harvey Whiteford Director of Mental Health Brisbane. Dr Reddan was initially retained by the Legal Aid Office of Queensland to examine Gavin in relation to the two murder charges. In her report Exhibit 4 she sets out the sources of information. These include clinical interviews she had with Gavin at the Wacol Remand and Reception Centre on 13 November 1992, 27 November 1992, 4 December 1992 and 14 December 1992 and further clinical interviews conducted at the Royal Brisbane Hospital at Rosemount on 15 December 1992, 17 December 1992, 19 December 1992, 23 December 1992, 29 December 1992, 6 January 1993, 13 January 1993, 14 January 1993 and 15 January 1993. Her report Exhibit 4 is dated 17 January 1993. She had statements from many witnesses who were police officers and they included the statements of Constable Payne (Exhibit 10) and Constable Servin (Exhibit 9). She also had the statements of the witnesses Hilsdon, Paulsen, Nicole Eisel, Karen Eisel, Alfred Eisel, Maria Kelleher and Elizabeth Ackerman, as well as statements from other persons and other documents mentioned in her report. I do not propose to go through her thorough report in detail. Such a course is unnecessary. I do note the following matters in Exhibit 4:
1.Many of Dr Reddan's interviews with Gavin took place in the presence of Ms Maree Spring a level 3 interpreter from the Queensland Deaf Society; Dr Reddan also interviewed him alone.
2.Dr Reddan reported that Gavin has the features of a congenital rubella syndrome and is therefore pre-lingually deaf, he has a small amount of hearing and communicates by lip reading and Ausland sign language but can also speak.
3.In discussing the offences, during the first interview on 13 November 1992, Gavin told Dr Reddan that he had been experiencing alterations in his perceptions which he called "the coma" for quite sometime. Initially he estimated that he had had them for at least six months or more but later said he had had them since childhood. He described "the coma" which he sometimes called "the picture" as at times he both experienced "the hearing" and could see "things". He said "the comas" or "the pictures" were not always clear but sometimes it was like seeing the future. At other times during "the comas" he would hear footsteps which were like Morse code and which were a little bit like a form of communication. Sometimes he would also catch a glimpse of a foot. Initially, Gavin told Dr Reddan that during these comas he would see two particular people, one who was connected with heaven and was like he said his "real mother" and the other was someone that he would not at that stage "speak about". He explained this to Dr Reddan by saying "the boss told me I can't tell you". Later in another interview he revealed that these two people were the "lady in red" who was really his mother, Marianna, and the other person was the man he called "the Pastor" his real father who communicated with him in both spoken word and by sign language. Later he said the pastor wore white gloves and his name was Pastor Glendale. He told Dr Reddan that if he told his solicitor about these matters something terrible would happen but he felt he could tell some people such as Dr Reddan a little more. As I read Exhibit 4, Gavin told Dr Reddan the above matters during her first interview with him.
4Dr Reddan's discussion of "THE OFFENCES" and what she had been told by Gavin record that during one interview Gavin informed her that he had known for quite a long time that his parents were involved in the devil, but he was not sure how the people he saw in the comas, that is the lady in red and the pastor knew about them. Her report (at p 7) contains the following:
"Gavin stated that he knew that his parents were involved with the devil by several means. In later interviews he mentioned that he could see it in his parents' faces particularly his mother Lynette whose eyes were frequently changing colour from black to blue to green etc. In earlier interviews he stated that he had learned through associating with his grandparents in Victoria and their church which he described as like a Masonic lodge but, a much higher order, that his parents were involved with evil. He stated that his father Alex (who was also known as Charlie) would go [to] the lodge but every time he would arrive there he would just fall down and that the person in charge of the lodge would not let him through. The President of the lodge he stated would ask Alex to stand up and he would then be taken out. Gavin had stated that the pastor told him that his father had been taken out and that he wasn't going to be accepted into the lodge. Gavin stated 'the boss wouldn't have him it was as if he got a message from a higher source that he wasn't to be accepted'. Gavin took this to mean that his father was to be 'kicked out'. Gavin stated that initially he understood very little of the messages he was receiving through 'the comas' and 'the hearing' and it was only much later on that he reached any understanding of what it all meant." As previously mentioned Gavin stated that he had seen his parents in "the comas". He went on to add in another interview that the pastor had grabbed both of them and had arrested them and that he had 'put them in the can'. Gavin stated that this happened very fast and it was almost like they had been dissolved. To fully describe what he meant Gavin actually drew us a can and he was implying that his parents were put into a place of confinement by the Pastor. Gavin found the visions of the Pastor and the lady in red very comforting. He stated that the Pastor told him that 'all will be well' and not to talk to his solicitor or other people about many of his experiences. He stated that the Pastor and the lady in red did not want anybody to know about them. Gavin later added that the Pastor and the lady in red were his real parents and he added 'those two people who are dead they looked after me but it was a bit of a mix up really'. He stated that the Pastor and the lady in red could switch him on and off and that they would frequently tell him what to do and make him do things but generally speaking he found their presence comforting. He describes seeing the Pastor and the lady in red as like looking into glass or like looking through a plastic sheet. Their outlines and features were not sharp or clear.
In the interview of 17 December 1992 Gavin stated that ‘they (meaning Lyn and Alex) were getting worse and worse and they stepped over the line until they died)’. I asked him if he was sorry that they had died and he answered 'I'm a little bit sorry but I've put them out of my mind and I don't think about them'. When directly asked if he had killed his parents he stated 'I can't say; they said not to talk about it and I can't give a full story as I don't know all the details. Alex and Lyn might be released or it would be bad for you and Maree."
[I interpret the reference to "Maree" to be to "Maree Spring" the interpreter]
He was asked if he remembered when Lyn and Alex died and did he remember finding their bodies and he stated "only a little bit". [at p 10 of the report]

At p 13 of her report Dr Reddan recorded:
"Recently Gavin told me that he knew that his mother had an evil identity inside her. As alluded to earlier he mentioned the changing colour of his mother's eyes and he also mentioned that his mother had a little Dutch shoe like a clog with a clear crystal in it which she had worn on a necklace around her neck. This had belonged to his grandmother. He informed me that he asked his mother Lynette not to wear it as it was causing changes in her face. He stated that when he was young his grandparents told him that his mother shouldn't wear the Dutch shoe necklace. He stated that the crystal changed colour when his mother wore it and that this had a special significance. He also mentioned that his mother was putting blue stones into crosses on craft work she had done and again this had a special significance. Previously he had been unable to date the time course over which he realised his parents were evil but in a recent interview he stated that he realised that somebody evil was inside Lynette and Alexander in July 1992.
(the emphasis is mind)
At p 13 of Exhibit 4, Dr Reddan has recorded that on 14 January 1993, Gavin stated that the comas had disappeared and that "the hearing" was much less and that the only voice he was then experiencing was that of another young female patient he had met who was then in another ward. She recorded that by this stage Gavin had been in hospital for approximately one month - Dr Reddan had had him regulated on about 14 December 1992 and he had been on the neuroleptic haloperidol. [I understand from Dr Moyle's report (Exhibit 12) this drug is an anti-psychotic agent used to relieve symptoms such as hallucinations and delusions]. Dr Reddan has recorded (also at p 13):
"It was also on this day that he directly admitted that he had killed his parents for the first time (sic). Up until then he had always maintained that he drove all night and would be at a loss to explain how the rifle used to kill his parents was his rifle."
Under the heading "PREVIOUS FORENSIC HISTORY" Dr Reddan has recorded in Exhibit 4 details of Gavin's conviction on 19 October 1990 of assault occasioning bodily harm, and his being ordered to perform unpaid community service and a community corrections order. She has recorded his past medical and surgical history, his personal history and the results of his "MENTAL STATE EXAMINATION". In respect of this latter matter MENTAL STATE EXAMINATION, Dr Reddan noted that his mental state examination had changed over time but that there were several features which had been consistent. She described his verbal expression as simple and concrete as would be expected to be associated with his pre-lingual deafness and his educational history. She saw no evidence of mannerisms and saw his affect as having always been normal and reactive to the topics under discussion. She said he always presented as a "very thin indeed underweight young man who was always neatly and cleanly dressed and his self-care skills have always been good". She described him as always socially appropriate, warm and friendly. At p 23 she said:
"The belief that his parents were in league with the devil was a delusion and there has been a grandiose religious flavour to his thinking however true formed or encapsulated grandiose delusions have not been elicited. He has described phenomena which are consistent with delusions of self-reference such as believing that there were messages in some of his bibles meant for him personally. He has also described a belief that he could be controlled or control others (delusions of influence) when in a 'coma'."
Dr Reddan stated (also at p 23 of Exhibit 4) there has been objective evidence of hallucinatory phenomena. There had been auditory and visual hallucinations. She recorded (at p 23):
"On several occasions Gavin has stopped and responded to auditory hallucinations and on two occasions he told me that he has seen the Pastor and the lady in red standing behind myself and the interpreter. Interestingly however he has always been aware that we were unable to see them or hear them.
'The hearing' appears to have been auditory hallucinations which have been of several different forms. There has been a subjective sense of being directly spoken to, of other parties conversing and echo du pensee. There have also been command hallucinations."
At p 24 Dr Reddan recorded that there had also been visual hallucinations such as seeing the pastor and the lady in red and illusions based on mistaken beliefs, for example, when the stone in his mother's Dutch clog changed colour slightly he grossly misinterpreted this. She described Gavin as appearing to be of low average to average intelligence with no evidence of cognitive decline.
Dr Reddan has described in some detail Gavin's treatment in hospital on and after 14 December 1992, when she regulated Gavin under the Mental Health Act 1974. In her "OPINION AND RECOMMENDATIONS" part of Exhibit 4, Dr Reddan opined that Gavin Vyner was suffering from a psychotic disorder which was active, pervasive and marked by intense perceptual disturbance and secondary delusional thinking at the time he killed his parents on 31 July 1992. She went on (at p 29 of Exhibit 4):
"It would appear from the clinical history and the material available (i.e the statements of witnesses etc) that he believed that his parents were possessed by evil forces and that they had gone 'too far' in their dealings with the devil. This was the predominant motivation for Gavin killing his parents. Additionally but I think of much less weight his motivation arose from some long standing resentment of his parents due to several factors. Firstly there was the abuse he was subjected to at the school in Melbourne which his parents had denied and ignored for a long time. Secondly, his generalised anger over the curtailment of his life by his pre-lingual deafness. Thirdly, his resentment at his mother nagging him. Early in 1992, Gavin lost his grandmother to whom he had been extremely attached and I believe that the bereavement process was also relevant. His grandmother was particularly important in so far as he saw her as warm and protective and as possessing special knowledge in regard to religious matters. This helped him maintain his attachment to her. It seems as best as I can determine that his psychotic symptomatology probably started earlier than her death but was certainly intensified during the bereavement period."
Dr Reddan described as unclear "the precise etiology of the psychotic state Gavin was suffering from in late July 1992 and continued to suffer from until recently." (p 30 of Exhibit 4)
At p 35 of the report Dr Reddan said, in a passage which is important in respect to the issue now before me:
"In my opinion the atypical psychosis that Gavin was suffering from at the time he killed his parents Alexander and Lynette Vyner was a mental disease which deprived him of the capacity to understand what he was doing and of the capacity to control his actions. It is less clear to me whether he was deprived of the capacity to know that he ought not to do the act or make the omission. Although it is likely that Gavin believed that what he was doing was the right thing, the significance of it had a massive impact on him all the same. He has denied that he killed them in response to the imperatives of command hallucinations. Thus, in summary it is my opinion that Gavin Vyner has a defence of unsoundness of mind as defined in s 27 of the Criminal Code of Queensland."
On 6 April 1993, Dr Reddan gave a further report (Exhibit 16). Later, I shall come to this report which is addressed to the Mental Health Tribunal.
I mention now three reports from Dr Robert John Moyle, a psychiatrist who was asked by the Mental Health Tribunal to examine Gavin under s 28E(1) of the Mental Health Act 1974-1991, paying particular attention to the question of unsoundness of mind, the question of diminished responsibility and the question of fitness for trial and Gavin's future management. His first report is dated 18 February 1993 (Exhibit 12), his second report is dated 18 March 1993 (Exhibit 13) and his third report received by the Mental Health Tribunal on 8 April 1993 is Exhibit 14.
First report Exhibit 12 is a detailed and thorough document. For the purpose of the report Dr Moyle had read many documents including depositions, Dr Reddan's report of 17 January 1993 the statements by Alan Paulsen, Nicole Eisel, Alfred Eisel, Karen Eisel, Raymond Hilsdon, Maria Kelleher, Elizabeth Ackerman, Constables Servin and Payne mentioned earlier in these reasons. He had read statements from other witnesses and documents including psychiatric and psychological reports concerning the 1990 offence. It is apparent also that Dr Moyle examined the Royal Brisbane Hospital case records for Gavin after he was admitted on 14 December 1992. Dr Moyle interviewed Gavin (Ms Maree Madden interpreted) for over three hours on Monday 15 February 1993. In Exhibit 12, Dr Moyle has discussed in some detail what he calls "Mr Vyner's account". I do not propose to go in detail to this account. He did note the following:
1.Gavin was unable to clearly chronicle changes that led up to the Vyners' deaths, but he did indicate that his relationship with his parents had been deteriorating.
2.Gavin's delusional mood and sense of perplexity changed to one of "confusion" when his parents told him for the first time in January 1992 that he was fostered - as Dr Moyle says "from then on a series of symptoms developed that are pathognomic of paranoid schizophrenia". (see p 6-7 Exhibit 12)
3.Gavin's confusion about his mother's movements became delusional perceptions - he would interpret a necklace that she wore around her neck as meaning that she was possessed by evil; he would interpret her movements with a cup of coffee prior to his entering the kitchen as indicating that she was trying to poison him. He didn't understand the reason why he was her target for death, but by one month prior to the death of his foster parents he was tipping out cups of tea and coffee that she had made him and making new cups.
4.Gavin became terrified for his own safety and was probably misinterpreting his mother's reactions to his frightened behaviour as evidence that his mother was possessed by a devil.
5.These sensations were accompanied by various visual phenomena which were described by Dr Reddan and included real hallucinations which Gavin called "comas".
6.Gavin had auditory hallucinations including the voice of the lady Marianna who he thought to be his real mother (biological mother). "This voice would have an influence on him in that he felt unable to resist its instructions". Dr Moyle noted that at night Gavin had often auditory hallucinations.
7.There were also visual distortions either hallucinatory or illusory - Dr Moyle could not distinguish between them.
8.Gavin interpreted his parents' reaction to his behaviours as indicating their character had changed because they were the devil.
9.Gavin mentioned one incident when his father flicked what may have been methylated spirits from the sink into his eyes and left his eyes burning. His father denied he intended to do anything but Gavin clearly felt his father meant him harm.
10.Secondary delusional beliefs that his parents were evil arose out of Gavin's visual distortions.
11.By July, Gavin was feeling frightened to go to bed and to go to sleep - he would stay up at night preferring to shrug off the feeling that he was at risk by going for a drive with his dog Bluey.
12."By July his nights in particular had become frightening worlds of visions, hallucinations, laughter, voices and somatic sensations that left him suspicious and on edge. He would avoid food for up to 2 days at a time and was noticed by Mrs Kelleher to be getting thinner." (at p 10 of his report)
13.The final portion of Dr Moyle's report dealing with Gavin's account reads:
"A mood 'depression' (his word), was identified as being due to a spirit that he would see walking off and he described this as a very strong force. This spirit could both enter his body and make him do things ie. take over his actions. 'Some times it was like a marriage inside me, sometimes, sometimes it might be a heart. It would go in and out. I don't want to know about it anyway.
His appreciation of this situation at night was one of confusion. A situation where there seemed to be multiple parents, two visualised parents, and two parents that fostered him, similarly confusing religious beliefs between the Bible of his grandmother and the Masonic lodge writings, confusing somatic visual and auditory and delusional mood that would lead him to increasingly believe that he was not only under threat from his foster parents but from unknown and unexpected forces that he called spirits or shadows. They would sneak up on him and on occasions he recalls being hit unconscious on some occasions up to four times."
When Dr Moyle in Exhibit 12 discussed "the material time" he recorded:
"On the morning of his foster parents' death he believes he woke up as usual but by breakfast he had noticed the food looked different and the two people in front of him were not his real parents 'there was someone inside them'. He reasoned they were spirits because their eyes had changed and he thought 'that they were from hell because things don't happen because of that. They had a laughing voice."
Later in his recording of the events of the 31 July, Dr Moyle said that at one stage when Gavin went for a drive with Bluey his parents said "off you go" and he interpreted this as rejection by them, and further evidence they were not his parents and he was being persecuted (see p 11 of Exhibit 12). Dr Moyle then wrote:
"On subsequent questioning he indicated that he had little memory at this stage of what happened from there but as many as ten of the phenomena I described were occurring and he was in a very frightened confused state. In this confused state he can picture only one aspect of what happened next and that is he can see himself down in the caravan picking up a rifle. He told me that the memory of what had happened that night had only come back to him to this degree since he had been at the Royal Brisbane Hospital (Rosemount). His initial memory was his parents watching television, leaving, his driving and his return the next morning. However, he now tells me that his parents were dead when he left, although the clear memory of the events leading up to their death is not there at this stage. Therefore the motivation at the time the trigger was pulled is also not present. What is clear is that he became frightened when they did not respond to him in the manner that he expected, but more importantly he noticed that they hadn't responded in their usual manner and asked them 'what's wrong' and his mother had said 'mind your own business'. Realising that he wasn't going to get an answer he was left with only his own fantasies and the influence of various psychotic phenomena that were occurring at that time. He stated when I asked him if he killed his parents 'yes I shot them something was controlling me I can't say I don't know why'."
Dr Moyle continued:
"His thoughts again became disordered as he described the possession by this spirit 'It takes me over and is given to me, it bounces off, one event, a spirit it could be, it wasn't me. The person who knows about it put it in, take it over and then take it back'. He believes he felt the spirit leave his body once his parents were shot."
In the summary portion of his report Dr Moyle has referred to the plaintiff having a delusional mood which "developed into a firm delusional system involving good and evil, life and death, where he was a pivotal character between "the boss" and various devilish characters. Dr Moyle describes this theme as "frequent in paranoid schizophrenic illnesses", and went on:
"He described delusional perceptions and passivity experiences involving those spirits and his foster parents. They indicated to him that he was under threat and that ultimately he was going to be killed." (p 13 Exhibit 12)
At p 14 of Exhibit 12, Dr Moyle said this:
"Diagnostically he suffers a paranoid schizophrenic illness, and has done for a prolonged period of almost a year if not longer. This illness remained untreated despite the efforts of his probation officer and others. [Dr Moyle is here referring to the evidence of Mr Paulsen, Mr Hilsdon and Mrs Kelleher]. The illness is severe and acute and at the time of the offence he was confused, frightened and his will was overwhelmed by alien spirits who took control of his body his mind and his judgment. He responded by killing the devil and protecting himself from being poisoned. As such he believed then as he does now that it was the correct thing to do.
His state of mind at the time of the death of his foster parents was that of suffering a mental disease called paranoid schizophrenia that deprived him of the capacity to control his actions (in the sense that his control was taken over by his spirit) and the capacity to know that he ought not to do the act or make the omission (it is correct to kill God, the devil and protect your own life). He cannot remember behaviour as he did other than picking up the rifle but the complexity of the behaviours lead me to believe that he did understand what he was doing.
The Tribunal might well have concerns about his not owning up to killing the foster parents. The fact that he didn't run and hide and that he pointed out where the rifles were are not unusual in mentally disordered people who kill."
When Dr Moyle came to discuss "the question of unsoundness of mind" he said: (at p 15 of Exhibit 12).
"It is my opinion that Mr Vyner was of unsound [mind] at the time of the death of his foster parents as described by section 27 of the Criminal Code. He suffered paranoid schizophrenic illness that deprived him of the capacity to control his actions and the capacity to know that he ought not do the act of shooting his parents. At the time of the death of his foster parents his mind was affected by delusions believing that they were evil and a threat to his continuing existence."
Dr Moyle's second report (Exhibit 13) resulted from a suggestion obtained from certain video taped interviews that Gavin was feigning insanity. The interviews were between Gavin and a Debbie Louise Meeuwsen on 12 September 1992, and Gavin and Debbie Louise Meeuwsen and Leslie Vyner undated. Dr Moyle viewed these tapes and in his second report concluded:
"I found little conclusive in both the transcripts and the video tapes. I found nothing that would indicate any pretence of madness was being planned by Gavin, only reference to a sense of confusion about feelings that he had been places before and a cautious and suspicious attitude to talking, not only about the death of his parents but also the Lodge. There was mention of a name like the name of one of the devils he told me about and an overall atmosphere of reticence and caution in what he would discuss. How much of his reticence is the appropriate caution often advised by solicitors is not easily decided. His presentation is also consistent with a paranoid illness but would not in itself be conclusive without positive evidence of such an illness. I feel that Gavin gave the positive evidence of such an illness in my examination of him already reported on in my report of 18 February 1993."
In this report Dr Moyle expressed the desire to re-examine Gavin while watching the video tape.
Dr Moyle's third report (Exhibit 14) followed a request made by the Mental Health Tribunal that the Crown Solicitor write to Dr Whiteford the Director of the Mental Health Branch, expressing the Tribunal's concern about two aspects of the case namely the level of security provided to Mr Vyner at Rosemount, and the lateness of Dr Moyle's medico-legal report to the Tribunal. Dr Moyle's report Exhibit 14 dealt with these matters and then at p 2 of Exhibit 14 recorded that Dr Moyle had subsequently reinterviewed Gavin and observed the two video taped interviews. He said that on Monday 29 March 1993 he spent a further two and a half hours reviewing Gavin and allowed him to have his (Dr Moyle's) copy of the transcripts of the video taped conversations and added "We also observed the video tapes at Rosemount, Royal Brisbane Hospital". He recorded that Dr Reddan was present for most of this time as was Ms Madden a deaf interpreter. He recorded in Exhibit 14:
"Mr Vyner was cooperative but cautious. He informed me that he had been unaware of the video taping of the visits at the time these tapes were made. He could not watch the entire taped interview and became worried about discussing the Lodge and his adoptive parents. He remained concerned that they are still potential malicious influences even though dead."

I do not propose to say anything further concerning Exhibit 14 other than to record the following statement by Dr Moyle:
"My conclusions remain unchanged. I can find no evidence to support the claim that Gavin was faking madness. The core symptoms of schizophrenia are not easily described by actors unless they are well trained and intelligent."
I mention now Exhibit 16 the further report from Dr Reddan dated 6 April 1993. In this report Dr Reddan recorded having seen the two video tapes which I referred to in discussing Exhibit 13 and Exhibit 14. At p 6 of Exhibit 16 after describing the quality of the two tapes and transcripts as being poor, Dr Reddan said:
"Neither tape supports the contention that Gavin has been feigning insanity. He does not for example say that voices told him to kill his parents nor does he come out with clear cut delusions. However, some of the experiences he alludes to and his general unwillingness to discuss the phenomena or the events in any detail are consistent with his early presentation. Generally those consciously feigning insanity draw a great deal of attention to their symptoms and usually claim command hallucinations. They usually act 'mad' in the way lay people conceive mentally ill persons to behave. Gavin has denied that he said to Ms Meeuwsen at any time that he was going to act dumb and mad in court. Whether he said this or not does not however substantially alter my opinion."
The final psychiatrist's report (Exhibit 15) was provided by Dr Francis Thomas Varghese on 6 April 1993. It was requested by and given to the Mental Health Tribunal. Dr Varghese was then an Associate Professor in the Department of Psychiatry of the University of Queensland and Director of Psychiatry at Princess Alexandra Hospital. He had a number of documents including witness reports and the psychiatric reports of Drs Reddan and Moyle but he probably did not have Dr Reddan's report Exhibit 16. He also viewed two video tapes together with the transcripts of those tapes. He interviewed Gavin for about two hours - an interpreter was present. Dr Varghese agrees with Drs Reddan and Moyle that Gavin had a schizophrenic illness and he said "I do not consider that there is any likelihood that he is feigning the disorder". In his report he said:
"Mr Vyner described a number of psychotic symptoms occurring around the time of the alleged killing. These symptoms are very typical of schizophrenia and for him to have feigned such symptoms would have required serious study of schizophrenia for several years. I note that Mr Vyner was most reluctant to talk about his symptoms and I had to coax and persistently insist that he answer questions as he wished to put the events behind him. Such behaviour is not characteristic of someone who is attempting to feign mental disorder."
As p 2 of Exhibit 15, Dr Varghese said:
"Thus it is clear that Mr Vyner was in a severely psychotic state at the time of the killings. What is more important is that he had persecutory delusions directed towards his mother, believing that she was attempting to poison him and also believing that she was in some way involved with evil. It is also clear that he was very angry with his mother and had been for some time because of what he called her 'nagging', which occurred repeatedly and consistently. With respect to his father he had only positive things to say about him stating that he was quite devoted to him and that he was a 'good father'. When asked how his father fitted into his beliefs about his mother he was quite puzzled. He stated that he did not quite know what was happening with his father. At some level he expected that he was involved with her evil doings, but at another level he felt he did not know. However he was most reluctant to elaborate on what might have been going on in his mind with respect to his father at the time of the killings."
In response to certain questions asked of him Dr Varghese gave the following opinions:
"1.I consider that Mr Vyner was suffering from 'unsoundness of mind' at the time of the killing. By this I mean that he was in 'a state of mental disease' namely schizophrenia.
2.With respect to deprivation of capacity I consider that at least with respect to his mother, he was deprived of the capacity to understand what he was doing. By this I mean that in his psychotic state he considered that his life was in danger from his mother and that his mother was a cause of a number of symptoms he was having and further she was involved in some kind of witchcraft. Thus in his mind at the time of killing her he was not in fact killing a human person but rather some kind of evil person with peculiar powers. Whether the capacity to understand what he was doing was deprived in the case of the killing of his father I am unable to say.
3.With respect to the 'capacity to control his actions' I do not consider that there is any evidence that he was deprived of this capacity in that the action he took to kill them required a degree of control. The actions do not appear to be related to passivity phenomena. However, I am not as clear on the nature of the 'the comas' as the doctors who saw him earlier.
4.With respect to the 'capacity to know he ought not to do the act" I consider that he was deprived of this capacity with respect to the killing of his mother, in that as a result of his illness producing delusions and hallucinations what he was doing was correct and related to self-preservation. I also consider that he was deprived of this capacity with respect to the killing of his father although the data I have from him is not as clear cut as with respect to his mother."
Thus, Dr Varghese was of the opinion that in respect of the killing of his mother, Gavin was deprived of two of the capacities referred to in s 27 of the Criminal Code. In respect of the killing of his father, Dr Varghese is of the opinion that at the time of the killing Gavin was deprived of one of the three capacities mentioned in s 27 namely, the capacity to know he ought not to do the act.
I turn now to the law. The principle, operation of which the plaintiff has to negative, was stated by Mahoney JA (as he then was) in Troja v Troja (1994) 33 NSWLR 269 at p 294 as follows:
"The principle ... is ... that the law will not enforce “rights directly resulting to a person asserting them from the crime of that person”."
His Honour pointed out that those words represented the formulation adopted by Dixon, Evatt and McTiernan JJ in Helton v Allen (1940) 63 CLR 691 at 709.
At p 295 Mahoney JA went on:
"Their Honours (at 710) referred to “the principle that by committing a crime no man could obtain a lawful benefit to himself". That the formulation adopted by Lord Atkin in Beresford v Royal Insurance Co Ltd (1938) AC 586 at 596. Reference was made, both by the High Court and the House of Lords, to the statement of the principle by Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156:
"... no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person”."
That plaintiff Gavin starts with the presumption of sanity against him (s 26 Criminal Code). Gavin admits killing his parents by shooting them. If the evidence before me is such that I am persuaded to the relevant standard of proof that the killings occurred at the time when the plaintiff, Gavin, was in such a state of mental disease as to deprive him of one of the three capacities stated in s 27(1) of the Criminal Code (R v Dillon (1939) 27 Cr App R 149 at 152) then the presumption of sanity is rebutted and Gavin will not be criminally responsible for the shooting and killing of his parents.
If at the time of each of the shootings Gavin was insane within s 27(1) then Gavin is to be regarded as innocent and will not forfeit his share in the estate of each parent (re:Beiers dec'd; Walker v Beiers (1954) QWN 9).
A verdict in a criminal trial of "not guilty on the ground of insanity" is the equivalent of an acquittal on a murder charge (see inre Pitts, Cox v Kilsby (1931) 1 Ch 546 at 550) or a manslaughter charge.
The standard of proof required of Gavin is on the balance of probabilities. In R v Schafferius (1987) 1 Qd R 381, the Court of Criminal Appeal held that the standard of proof of unsoundness of mind required in any proceedings before the Mental Health Tribunal is proof on the balance of probabilities but such a finding should be made only in reliance on clear and convincing evidence and upon a firm satisfaction consistent with the gravity of the proceeding. The court referred to Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and Rejfek v McElroy (1965) 112 CLR 517.
I see no reason why the same standard should not be applied by me in this case albeit that it is not a proceeding before the Mental Health Tribunal. As Thomas J (as he then was, with whose reasons other members of the court agreed) said in Schafferius. I find clear and convincing the opinions of Drs Reddan, Moyle and Varghese that at the time of each shooting and killing Gavin was in a state of mental disease which deprived him of one or more of the capacities stated in s 27 of the Criminal Code.
I am very well satisfied that at the time of each killing Gavin was insane within s 27 of the Criminal Code.
In the case now before me, all three psychiatrists, Drs Reddan, Moyle and Varghese, agree that at the time of each of the killings by shooting Gavin was in a state of mental disease. The name of the disease varied. Dr Reddan called it an atypical psychosis, Dr Moyle described it as paranoid schizophrenia. Dr Varghese called it schizophrenia and also said he agreed with Drs Reddan and Moyle that Gavin had a schizophrenic illness.
Dr Reddan said that at the time of each killing the mental disease deprived Gavin of the capacity to understand what he was doing and the capacity to control his actions. She said it was less clear whether he was deprived of the capacity to know that he ought not to do the act, that is, shooting.
Dr Moyle said that at the time of death of each of Gavin's foster parents the mental disease deprived Gavin of the capacity to control his actions and the capacity to know that he ought not to do the act.
Dr Varghese said that at the time of killing each parent the mental disease deprived Gavin of the capacity to know that he ought not to do the act.
All three psychiatrists did not agree on the identity of the capacity of which the mental illness deprived Gavin at the time of each killing. All however agreed that in respect of each killing the mental disease did deprive Gavin of at least one of the three capacities.
Thus, each act of killing was not unlawful and in my view the plaintiff Gavin has not forfeited his share in the estate of each parent. The present proceedings are not criminal in nature and the criminal standard of proof is not applicable. In the result I make the following declarations:
1.I declare that Gavin John Vyner is entitled to share as a beneficiary under the will dated 28 November 1980 of Alexander James Vyner, late of Lot 6 Garden Road, Cedar Creek in the State of Queensland who died on or about 31 July 1992.
2.I declare that Gavin John Vyner is entitled to share as a beneficiary under the will dated 28 November 1980 of Lynette Marcia Vyner, late of Lot 6 Garden Road, Cedar Creek in the State of Queensland who died on or about 31 July 1992.
The statement of claim seeks further relief namely orders that the defendant Leslie distribute to Gavin all that to which he is entitled as a beneficiary under each will, and also interest. In addition orders are sought that each estate may be administered by the court, damages and costs.
I note that the writ was issued over three years after letters of administration with the will annexed were granted. Whether each estate has been distributed, I do not know. From the tenor of the defence and counter-claim, I suspect that Leslie has regarded himself as the only beneficiary in the estate. I propose to have posted to Leslie a copy of these reasons for judgment, a copy of the transcript and a copy of each of the reports by Drs Reddan, Moyle and Varghese.
It is my intention that these reasons enable Leslie to understand why I have reached the result which I have. The evidence of the three psychiatrists was not contradicted. Indeed, given the lapse of time since 1992, I should have thought that it was difficult to the point of being impossible for another psychiatrist to now enter the picture, interview witnesses and particularly Gavin with a view to giving an opinion as to the unsoundness of mind or otherwise of Gavin at the time of each killing.
So far as concerns the remaining relief sought, I propose to adjourn the action to a date to be fixed. I ask the parties to attempt to achieve some agreement in respect to this further relief.
I dismiss the defendant's counter-claim. As to the plaintiff's costs of the action to date including costs of the defence and counter-claim I propose to order that they be assessed and paid by the defendant as administrator with the will annexed of each estate. However, before making such order, I should like to hear submissions from plaintiff's counsel as to whether those costs should be on a solicitor and client rather than party and party basis.