REGINA v Christopher Alan Daniels

[2005] NSWSC 745

CITATION:	REGINA v Christopher Alan DANIELS [2005] NSWSC 745
HEARING DATE(S):	24 June 2005, 27, 28, 29, 30 June, 1, 4, 7, 22 July 2005, Order: 10 August 2005
JUDGMENT DATE :	22 July 2005
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Mathews AJ
DECISION:	I formally enter verdict that Christopher Alan Daniels is not guilty of murdering Anthony John Wood on the ground of mental illness; the formal order I make pursuant to s 39 of the Mental Health (Criminal Procedure) Act is that Christopher Alan Daniels be detained in a psychiatric hospital within the prison system until released by due process of law.

LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900 Mental Health (Criminal Proceedure) Act 1990
PARTIES:	REGINA - Crown Christopher Alan DANIELS - Accused
FILE NUMBER(S):	SC 2004/3166
COUNSEL:	Crown: A J Robertson Accused: W Barber with Mr M Smith
SOLICITORS:	Crown: S C Kavanagh Accused: I Rolfe

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	H19078850
LOWER COURT JUDICIAL OFFICER :	J Huber

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

MATHEWS AJ

22 July 2005

2004/3166

REGINA v Christopher Alan DANIELS
REASONS FOR VERDICT

1 HER HONOUR: On 27 June 2005 Christopher Alan Daniels was arraigned before me on a charge that on 7 October 2003 at Sydney he murdered Anthony John Wood. He pleaded not guilty to this charge. He had previously signed an election, pursuant to s 132 of the Criminal Procedure Act 1986, to have the trial conducted by a judge alone, and the Crown had consented to this course.

2 The killing of the deceased took place shortly before midnight on 6 October 2003 at Regimental Square, Sydney city. This square runs between George Street and Carrington Street near Martin Place. The deceased, a street dweller, was asleep on a ventilation grille when he was struck on the head several times with a blunt instrument. Considerable force must have been used, for the injuries were very severe. His skull was fractured and the brain surface was torn and bruised. A passer-by saw the deceased, with blood around his head, at about 12.40 am on 7 October. He immediately rang the police and the ambulance, but by that time the deceased was already dead.

3 Police enquiries elicited accounts of a man who had been seen walking in the City a little earlier, carrying a sledgehammer. At about 4.00 am the accused was seen walking northwards in George Street, towards Regimental Square. He had nothing in his hands at the time, but he fitted the description of the man who had earlier been seen carrying the sledge-hammer. He was apprehended by the police at the corner of Bathurst and George Streets, and taken to the Rocks Police Station. There he telephoned his solicitor, Mr Rolfe. He declined to make any comments pending Mr Rolfe’s arrival at the Police Station. However he did volunteer the following information:

“I am not trying to hide anything. I was at home anyway all night. I couldn’t sleep so I walked down to the Mobil Service Station on George Street and bought a United Dairy Farmers Milk and then walked into the city.”

4 After seeking legal advise, the accused again declined to answer any questions.

5 At 3.20 that afternoon, investigating police went with the accused to his then residence at 1/15 Sloane Street, Summer Hill. This was a room in a boarding house. Before they arrived, the owners had sought to evict the accused by throwing his belongings into a pile beside the driveway. The police went through these belongings and also went into the accused’s room, but they found nothing of relevance to the investigation.

6 At about 5.30 pm on 7 October the accused was released from police custody as there was insufficient evidence to charge him.

7 The following day, 8 October 2003, the accused was arrested at his parents’ home at Balgowlah in circumstances I shall describe later. It was suspected that he might be mentally ill, and he was taken to the psychiatric unit of Manly Hospital (generally known as “East Wing”) where he remained under observation for two days. In the meantime, a forensic examination of the shoes the accused was wearing when he was arrested on 7 October, returned a positive screening test to blood. Subsequent analysis showed that the blood on the accused’s shoes exactly matched the DNA profile of the victim. Accordingly, when the accused was discharged from Manly Hospital, at 9.30 am on 10 October 2003, he was immediately arrested and taken to Manly Police Station. Later that morning an ERISP interview took place during which the accused made full admissions as to the killing of the deceased. He told police where he had put the sledgehammer after the killing. Police went to this location and found the sledgehammer in precisely the position described by the accused.

8 Later that afternoon the accused accompanied the police to the Macdonaldtown Railway Station and showed them where he had found the sledgehammer which he later used to strike the deceased. They then went to Regimental Square where the accused described striking the deceased with the sledgehammer and gave an account of his subsequent movements. All of this was recorded by way of video recording, and was played back in court.

9 There was no issue at the trial as to the identity of the accused as the killer of the deceased. Nor was there any issue as to the mental element of murder, namely that he intended at the time to kill or inflict grievous bodily harm. Nevertheless, it is incumbent upon me to make a finding on this matter. In the light of the DNA evidence and the admissions made by the accused, I have no difficulty in finding, beyond reasonable doubt, that the accused killed the deceased intending at the time to kill him or to inflict grievous bodily harm.

10 The only issue remaining is the mental state of the accused at the time of the killing. In this regard, the primary defence raised by the accused was that he was not guilty by reason of mental illness. Alternatively a defence of “substantial impairment” under s 23A of the Crimes Act was raised. However this was very much a fallback position. The primary focus throughout the trial was on the defence of mental illness.

11 In order to discuss this issue I need to say something more about the background of the accused and his actions leading up to the killing and immediately after it.

The accused’s background

12 The accused was born on 28 October 1973. He has an older brother, Matthew and a younger sister, Kate. His family has always lived in the Northern Beaches area. The accused had his schooling first at Balgowlah and later at North Sydney.

13 Until he was about sixteen and in year ten the accused was, on all accounts, a normal boy who had good friends, enjoyed his sport, worked hard and was in the top ten percent in all his subjects. Between 1987 and 1988 all this changed. His father said that in a single year he went from the top ten percent in his class to the bottom ten percent. It transpired that he was smoking marijuana at this time, probably in large quantities. On at least two occasions he was suspended from school for smoking marijuana. On each occasion the suspension was temporary and he resumed his schooling. He managed, with some difficulty, to complete his Higher School Certificate and to get more or less average marks.

14 After leaving school the accused had a variety of jobs, none of them for any length of time. On three occasions, between the ages of twenty and twenty-eight, he worked for his father, who owned an automotive workshop. His father said that it was difficult to keep the accused motivated and to keep his mind on the job. The first two occasions finished when the accused decided he did not want to continue with this work. The third occasion finished when the accused had a car accident on his way to work. This was in January 2001. He sustained some back and neck injuries and was kept in hospital overnight. His complaints of back pain date from that accident.

15 Between January 2001 and May 2002 the accused was receiving regular workers compensation payments arising out of this accident. Some of this time he was living at home with his family, at other times he moved out and lived with friends. In May 2002 the insurance company ceased making these payments.

16 It would appear from the accused’s answers during the ERISP interviews, that he had an unnatural fixation about this accident and its aftermath, particularly about the circumstances in which his workers compensation payments ceased in May 2002. He returned to these events several times during these interviews, in a manner that was generally quite unresponsive to the questions he was asked.

17 It is difficult to know when the accused first displayed signs of serious mental disorder. His sister, Kate, described him as having been a difficult person for a number of years. She said that he used to mumble and mutter to himself, and if he was asked a question he would answer with something completely different from what he had been asked. In June 2002 he presented himself to the emergency department of Manly Hospital complaining of loss of sensation in both legs and an inability to stand because of lower back pain. The hospital notes show that there were serious inconsistencies in his complaints. One must suspect that his presentation at the hospital was prompted by the cessation of his workers compensation payments the previous month. Of particular interest is a notation in the hospital records relating to a telephone call from the accused’s general practitioner, Dr Chang:

“Says has been concerned for this patient’s mental health for while and gave him letter for psychiatric review but not been yet. Did work for his father who sacked him and on workers compensation now who apparently have stripped his payments. Gave GP a cheque recently for $53,000,000,000.”

18 Commencing in January 2003, the accused’s unusual behaviour brought him into conflict with the law on a number of different occasions. On 31 January 2003 he was stopped by the police for a driving offence. He gave his name as David Jones and flatly denied being Christopher Daniels. He was eventually identified through his fingerprints. He was charged and placed before Manly Local Court. The magistrate, Mr George, was so concerned about his mental state that he referred him for assessment to Manly Hospital pursuant to s 33 of the Mental Health (Criminal Procedure) Act. A psychiatrist, Dr Goyer, examined him and noted that he would not give any logical history as to why he was there. She noted that he spoke in circles and would not answer direct questions. She considered that he had a “paranoid flavour” but went on to find that there was no evidence of psychosis. The accused was therefore discharged.

19 On 2 April 2003 the accused’s vehicle, which had stopped at traffic lights at North Manly, remained there after the lights had turned green. The police arrived and asked the accused what was wrong. He said that the gear box was broken. The police got into his car and found that the gears were working normally. A roadside breath test showed a positive (0.07) reading. When told that he would be arrested, the accused said “fine. Can I get my banana?” He was then taken to Manly Police Station where he refused to undergo a formal breath analysis. The registration plates on the car he was driving were found to have been stolen, and the car itself was a rental car which had not been returned on the due date. The accused was charged with a number of offences and brought before Manly Local Court. The magistrate, Mr George, again referred the accused for assessment under s 33 of the Mental Health (Criminal Procedure) Act, and he was again taken to East Wing at Manly Hospital. On 3 April 2003 Dr Wilson, a psychiatry registrar, found that the accused had no features of mental illness that would make him detainable under the Mental Health Act, and he was discharged.

20 In May 2003 the accused returned to live in the family home. His parents described him as completely reclusive during this time. He stayed in his bedroom virtually all day and came out only to eat his meals. His parents were so concerned that they started collecting pamphlets on mental illnesses.

21 In June 2003 the accused was told by his parents that they had arranged to sell the family home. He reacted violently, and went and returned to his room “screaming and swearing”. Not long afterwards he came down to dinner and behaved as if nothing had happened.

22 On 30 July 2003 the accused again came before Manly Court in relation to a number of outstanding charges. Before the court, inter alia, was a pre-sentence report describing a bizarre presentation of the accused at the Probation and Parole Service on 9 July 2003, when he expressed concern that the interview office was bugged and that secret surveillance cameras were filming him. He thought that the office was “an incredibly dangerous place” and that the probation officer was “out to get him”. Also before the court was a report dated 19 July 2003 from Dr K L Chang, the accused’s GP, in the following terms:

“I have treated Christopher Daniels from February, 2001 for a Workers Compensation back injury.
In the past 12 months he has shown disordered thought processes and despite being seen in Hospital Out Patients, by psychiatric registrars at R.N.S.H. and Manly Hospital has had no ongoing treatment.
In the case of paranoid schizophrenia, the patient often denies any need of help, and this is so in the case of Christopher Daniels.
It is my opinion that a lot of Christopher’s problems are related to mental illness, and that problem needs to be addressed medically.”

23 With this material before him, it is not surprising that the magistrate, Mr George, yet again referred the accused to Manly Hospital for psychiatric assessment. The accused’s father, who accompanied him both to court and to the hospital, described him as being quite irrational at the time.

24 On this occasion, the accused was first seen at East Wing by Dr Henderson, who described him as agitated, paranoid and thought disordered. He considered that he was psychotic and that he presented harm to himself and others by reckless driving and possible suicide. The accused was therefore retained at East Wing for observation.

25 The next day, 31 July 2003, Dr Bains saw the accused and concluded that he was suffering from a psychotic illness. However, Dr Dennis Ladd, upon assessing the accused, could find no evidence of mental illness or disorder. He strongly suspected that the accused’s symptoms had been fabricated in order to facilitate his transfer to hospital. Accordingly, on 1 August 2003, the accused was discharged. No further psychiatric follow-up was deemed necessary.

26 Later in August 2003 the accused was standing at a bus stop holding a golf club when a fourteen year old boy he did not know asked him whether he played well. He responded by punching the boy three times in the head. On 5 September 2003 the accused’s parents moved house from the family home at Fairlight to a new home at Balgowlah. They had asked the accused to stay away during the move. However he returned and apparently tried to obstruct his father. A scuffle developed between them and the accused punched his father in the jaw. The police were called and the accused’s parents applied for and later obtained an AVO against their son.

27 Later in September the accused moved, with his sister’s assistance, to the boarding house at Sloane Street, Summer Hill. He was still living there at the time of the killing.

Events around the time of the killing

28 The accused had already come to the notice of the police, less than forty-eight hours before the killing of the deceased, in relation to a completely unrelated matter. This earlier episode started on the morning of Sunday 5 October at about 6.15 am. Mr John Frare was walking in Sloane Street, directly opposite No.15, when an arrow was fired in his direction, striking his coat but fortunately not touching his body. Mr Frare looked across and saw a man, whom he later described to police, carrying a longbow. Mr Frare went to the closest phone booth and called the police. Moments later a man approached him at the phone booth and said “Can I have back the arrow?.” He replied “No” and the man said “It’s a shame. Fuck you idiot.” He then walked on. Mr Frare thought this was a different man from the one he had seen earlier carrying the longbow.

29 Later that day Mr Scott Commins, who resided at 15 Sloane Street, saw the accused near the entrance of the boarding house with a bow and arrow which was partially covered by a blue towel. Word had already got around about the bow and arrow incident earlier that day. Accordingly, after discussing the matter with another resident, Mr Commins told the caretaker of the boarding house that the accused had a bow and arrow, and the police were called.

30 At about 10.00 that night the police came to 15 Sloane Street. They found a longbow and arrows in the accused’s bedroom. The accused was taken to Burwood police station. A lengthy ERISP interview took place commencing at 1.35am and finishing at 2.58 am on 6 October. The accused admitted owning the bow and several arrows, which he said he kept under his bed at Sloane Street. He had bought them with the intention of going into practice for the 2004 Olympics. He denied that he had fired an arrow in Sloane Street on the morning of 5 October. Indeed he said that he had never used the bow and arrow.

31 There were a number of respects in which the accused’s presentation at this interview was, to say the least, unusual. Parts of it bordered on the bizarre. The interview was marked with long rambling answers which often bore little or no relationship to the questions he had been asked.

32 The accused remained at the police station for some hours after completing this interview. At about 7 am, having obtained a warrant to search the accused’s room, the police took him back to 15 Sloane Street. In his room they found one or two items which they considered relevant to their then investigation, but nothing of any significance to the present proceedings.

33 At about 11 o’clock on the morning of 6 October the accused went to his sister Kate Perrett’s home near Manly. He took some money from a cash box which he had under the house and she also gave him twenty dollars. He left about half an hour later.

34 It was the accused’s sister who described this visit, in a statement tendered before me. So far as I can ascertain, the accused himself was never asked by the police to give an account of his movements that day. Accordingly it is not until about 7 o’clock on the evening of 6 October that this story resumes.

35 The following account of the accused’s movements is taken from information given by him to the police in an ERISP interview on 10 October.

36 At about 7 pm on 6 October, the accused told the police, he went to Macdonaldtown railway station and stole the sledgehammer, which he later used to kill Mr Wood, from a railway yard. He had seen the sledgehammer on numerous previous occasions, he said, whilst travelling by train through the Macdonaldtown station. On this occasion, having taken it from the yard, he concealed it in bushes until the time came to use it, as he did not want to draw attention to himself. He then took a train into the city and walked around the area where he was later to kill Mr Wood. He also walked around Redfern. It was at about 10 o’clock, he said, when he returned to the Macdonaldtown station and collected the sledgehammer.

37 Taking the sledgehammer with him, the accused took a train into Wynyard Station. He sat for a while in a park off Carrington Street. Then, at about 11 pm, he walked through Regimental Square where he saw the deceased asleep. Carrying the sledgehammer, he then walked up Martin Place to Macquarie Street, turned right and went, it would seem, along Elizabeth Street as far as Liverpool Street. There he again turned right and walked down to George Street. Somewhere in this area he stopped at a McDonald’s where he bought cheeseburgers and a lemonade. He later told police that he could not finish his lemonade “’cause I felt a little bit sick, ‘cause I was just about to go and kill someone.” In George Street he caught a bus travelling north, and got off at Wynyard Station. A ticket which was later found amongst his property recorded this trip as commencing at 11.35 pm.

38 The accused then described going into Regimental Square and striking the deceased’s head three times with the sledgehammer, using very considerable force. At that stage, he said, he saw people in the vicinity, so he left the deceased, walked into Carrington Street and threw the sledgehammer over a fence into a garden bed. He walked down to Wynyard Station and took a train to Burwood. From there he walked home to Summer Hill, arriving, he told police, at about 1 am.

39 The accused told the police that he entered 15 Sloane Street through a side entrance which was normally kept unlocked. Similarly, he said, he normally left his door unlocked. On this occasion, in the early hours of the morning on 7 October, he said he had no particular difficulty in getting into his room. The police questioned him closely about this, for by then they had taken a statement from the caretaker of 15 Sloane Street, who said that after the bow and arrow incident she had taken the accused’s room keys. She said that at about 9 pm on 6 October, she locked the accused’s room because she intended to evict him for causing a disturbance. It would have been impossible, she said, for him to have gained access to his room after this time.

40 This must remain one of the mysteries in this case. I am inclined to accept the accused’s account, however, and I think it likely that he did return to his room that night. He was very precise in his descriptions of his movements during the night, and he had no reason to dissemble about this matter. Moreover, in most other respects, his account was supported by other evidence in the case.

41 The accused said that he woke suddenly at about 3 am and was unable to go back to sleep. He got up and left the Sloane Street premises, still wearing the same clothes as earlier in the evening. He bought some milk at a nearby service station (this was corroborated by the attendant at the service station) and then walked down Parramatta Road and into George Street. He was intending, he said, to go back to Regimental Square to see if Mr Wood’s body had been found. On the way, he was apprehended by the police on the corner of George and Bathurst Streets and, as indicated, taken to the Rocks Police Station.

42 I have already described the main events which occurred between the accused’s apprehension by the police in the early hours of 7 October and his release from police custody at 5.30 pm that day. At about 9 o’clock that evening, he arrived at his sister, Ms Perrett’s home. She had already heard from his solicitor, Mr Rolfe, that the accused was suspected of killing the deceased. She asked the accused “Did you kill that man?” The accused responded “I had nothing to do with it. It’s a big misunderstanding. I’ll work it out.” His demeanour was very calm, she said. The accused ate some pasta, took a shower and apparently went to bed on a mattress on the floor. However an hour or so later she noticed that he was gone and had taken all his possessions. He returned at about 9 o’clock the following morning (Wednesday 8 October). He told his sister that he wanted to go to Summer Hill to collect his possessions. However after a short conversation he walked away. He returned a few hours later, at about 1 pm. Ms Perrett saw him sitting on her front fence smoking a cigarette. She went outside and asked “Where are you going now?” The accused responded “Go back to your star wars world and forget about me, you are part of the problem and you can’t help.” A little later he said: “I am going to bash someone’s head in so I can go to East Wing.” The accused then walked off.

43 Not long afterwards, the Manly police received a phone call, apparently from the accused’s father, complaining that the accused was outside his home in breach of an outstanding Apprehended Violence Order. The police came to the home and found the accused sitting outside. As it transpired, his father was away playing golf at the time and had no idea that the accused was at his home. He had made no telephone call to the police. Almost certainly, therefore, it was the accused himself who had made this phone call.

44 The accused was taken by the police to the Emergency Department of the Manly Hospital. At about 6 pm on 8 October he was examined by the Psychiatry Registrar, Dr Kaill. The doctor found the accused to be cooperative, alert and oriented. He was lying on his back on a mattress on the floor complaining of back pain. He told the doctor that he was a homeless man who slept on trains and got his income by bashing people for money. He said that he used weapons such as blood-filled syringes or knives to steal from people at ATM’s. He said that he believed he had a mental illness because he assaulted people for no reason. The accused denied that he ever heard voices in his head. However he said that he had an echo or a buzz in his head and he said that he thought that a chip had been put into his head. He said that he would “kill the cunt that put that noise in my head. I will pull his fingernails out.” The accused admitted to using cannabis in substantial quantities, but denied taking any other form of drugs including alcohol.

45 Dr Kaill, who gave evidence at the trial, said that he was uncertain after examining the accused whether he had a psychotic illness or he was malingering. After discussing the matter with Dr Ladd, the accused was admitted to the East Wing for observation “to exclude a psychotic illness”.

46 The next day, 9 October 2003, the accused was examined by a psychiatrist, Dr Smallman. He noted that the accused was not agitated or distressed, that he was pleasant and co-operative and spoke clearly and coherently. When asked about telling Dr Kaill that he had a chip in his head he said “What I meant was, I have a ringing in the ear that becomes apparent in the quiet of the evening.” Dr Smallman concluded that the accused was not suffering from any psychiatric disorder or mental illness. This was based on an interview lasting approximately forty minutes.

47 On the morning of Friday 10 October 2003 the accused was examined by another psychiatrist, Dr Dennis Ladd. He found the accused to be polite, co-operative and appropriate during the interview. His mood was one of frustration and irritability that he had no money and that his family had ostracised him. He admitted to assaulting a person in the city a few days earlier and appeared to be detached from the gravity of the allegations made against him. Dr Ladd did not think that the accused was suffering from a mental illness. He thought he might have an antisocial personality disorder, and concluded that the accused was probably malingering and feigning mental illness in order to seek refuge in the hospital and avoid arrest by the police.

48 Dr Ladd gave evidence both at the committal proceedings and at the trial. On both occasions he was cross-examined by Mr Barber, who appeared for the accused, about his conclusion that the accused was malingering. It will be remembered that Dr Ladd had already seen the accused at East Wing in July 2003 and had also considered on that earlier occasion that the accused was probably malingering. This is not an uncommon phenomenon, he said, in psychiatric units.

49 Following Dr Ladd’s assessment, the accused was discharged from East Wing at about 9.30 am on 10 October. He was immediately arrested by the police and taken to Manly Police Station. A lengthy ERISP interview then took place between Detective Sergeant Gair and the accused, commencing at 11.43 am and finishing at 2.09 pm. The accused, as indicated, made full admissions as to the killing of the deceased. Indeed, at the outset of the interview he said:

“In relation to that allegation about me murdering Anthony Wood I would like to say that I am guilty, I hit Anthony Wood three times in the head with a sledgehammer.”

50 In general during this interview the accused was quite coherent. He was extremely precise in his description of events and places. At the same time, he gave some very unusual answers. Given that the focus of this enquiry is on his mental state at about this time, I think it appropriate to quote some of his more bizarre answers.

“Q64 But what caused you to think about a sledgehammer at Macdonaldtown Station on this evening, Monday, the 6th October?
A I needed, I needed some money cause I had no money, I needed to eat.
Q 65 Well, what has that got to do with the sledgehammer?
A. Well, I thought if I get a sledgehammer I might be able to clock a few people over the head and get some money off them and continue with my, providing nutrients to my body to sustain life.
***
Q87
A. I just, I just thought that Anthony Wood might have some money on him, but he didn’t, he had nothing. I didn’t get a chance t check him because there was people nearby, so it was all in vain. I’m a very religious person so I will not lie, it’s against my religion.
***
Q95 Why did you hit him in the head with the hammer?
A I was going to see if he had any money on him
Q96 I appreciate that, why did you feel the need to hit him in the head with the hammer?
A Ah, for self preservation, so that if I did, if I had have gone and picked his wallet he might have woken up and hit me or punched me or scratched me or something, so I thought the best thing just to kill him and than - -
Q97 You thought the best thing was just to kill him?
A Yeah, and get some money and keep my life going.
***
Q139 – 142 Well, your family?
A They won’t give me anything. I think they’re all drunk. I think they’re all alcoholics, they always drink, every night. And they’re very abusive.
***
Q191 O.K.
A He’s a bum, doesn’t matter, bums don’t get believed. Like I’ve got no money and I know, you know, I don’t believe a bum, a bum’s a bum.
Q192 What do you think of yourself, Chris?
A I think I’m a dero, like again, according to Roman Catholicism I’ve done a sin, I’ve done something wrong, but I have to preserve my life.
***
(Later, in relation to the other residents at 15 Sloane Street):
Q324 Right. Any other feelings towards the people that live there?
A. No, didn’t even want to look at them.
Q326 Why did you feel that way about them?

A Because they’re all druggies, they stunk, they drunk, they’re idiots

Q327 And why does that concern you?
A It didn’t concern me at all, I just don’t understand why and how people are allowed to live in those sort of conditions when the place wasn’t fit for being inhabitable by humans.
***
Q345

A No, I don’t mind about killing people, it doesn’t worry me at all. People go out there and kill animals and drown people every day.
***
Q348

A …I should just try and count to ten and calm down otherwise I’m going to have a heart attack. I’m not going to kill you people because I’ve only got a pen
Q349 Chris, count to ten quietly and calm down.
A. Yeah, better take the paper too, I can kill people with that too.
***
Q363

A Well, wherever I go, that’s what happens, since the 10th of May, 2002 I’ve had nothing, nowhere to live, no home, no address, no written answers, nothing to do with the 1901 Statute of Declaration of Law - - - - - -
Q364 O.K.
A - - - according to Osama bin Ladin or fuckin’ anything.
Q365 Yeah, all right
A. I don’t give a fuck
Q366 O.K.
A Kill that Amrozi cunt, I’ll kill him, I’ll go up there and I’ll kill him personally.
Q367 Righto.
A Fuckin’ little cunt.
Q368 Are you alright?
A Yeah
Q369 I can understand that .- - -
A I wouldn’t give him the pleasure anyway.”

51 At about 5 pm on the same day, 10 October, Sgt Gair and other police officers took the accused first to Macdonaldtown railway station, where he showed them where he had found the sledgehammer, and later to the city in the vicinity of Regimental Square. Here the accused showed them where he had walked on the night of the killing and where Mr Wood was lying. He displayed some unusual word patterns, (for instance instead of “seeing” he almost invariably used the word “visualising”) but otherwise his responses appeared relatively normal. He certainly displayed none of the bizarre reactions which had punctuated the earlier interview.

52 On 10 October 2003 the accused was charged with murdering the deceased. He was initially sent to Silverwater Prison but was then transferred to D Ward at Long Bay Hospital. He has been taking anti-psychotic medication and, on all accounts, his condition has greatly improved.

53 I turn now to discuss the psychiatric evidence given at the trial.

Psychiatric evidence

54 Dr Yvonne Skinner, an experienced consultant psychiatrist, examined the accused on 22 April 2005 at the request of the Director of Public Prosecutions. She was also provided with considerable documentary material relating to the case. She wrote a lengthy report dated 19 April 2005 and a shorter supplementary report dated 27 June 2005.

55 The accused gave Dr Skinner a history of extensive marijuana use commencing at age sixteen when he was in year eleven. He said that he started hearing voices in about 2002. He also experienced occasional visual and smell hallucinations. The voices were saying “no hope” and he thought they were referring to his compensation case. Since taking anti-psychotic medication in prison, the accused said that these hallucinations had ceased. He said that he was feeling more calm and was able to think more clearly than previously.

56 In Dr Skinner’s first report, of April 2005, she undertook a detailed review of much of the documentary material, including the ERISP interviews undertaken by the accused after the killing of the deceased. On the basis of all this material, she expressed the opinion that the accused was suffering from a psychotic mental illness, probably chronic paranoid schizophrenia. She considered that he was suffering from this illness prior to and around the time of the killing on 6 October 2003. She expressed the view in her first report that the accused was fit to stand trial but that he had available the defence of mental illness.

57 After writing this report, Dr Skinner was given further material relating to the accused, including the records of the interview and the search following the bow and arrow incident. In her supplementary report dated 27 June 2005 she said that this material served to confirm her diagnosis of schizophrenia. She was aware that the accused had given different accounts to other people, but she nevertheless repeated that in her view he had available a defence of mental illness.

58 Dr Skinner gave evidence at the trial. She conceded to the Crown Prosecutor that it was possible that the accused had been lying to her. The accused had told her that before striking the deceased he had command hallucinations of a voice saying ‘hit him’. He had not mentioned this to anyone else. She noted that when she saw the accused he had already benefited from his anti-psychotic medication. She thought it possible that his failure to mention these matters to the police might have been attributable to his mental state at the time.

59 In relation to Dr Ladd’s diagnosis that the accused had an anti-social personality disorder rather than a mental illness, Dr Skinner commented that personality disorders exhibit themselves in childhood, often in early childhood. The accused did not fall into this pattern. Indeed the deterioration of his condition over the years before the killing was consistent with schizophrenia.

60 In cross-examination, Mr Barber put to Dr Skinner the various observations of the accused’s parents. She agreed that the matters described by them were common characteristics of schizophrenia. She said that a number of people suffering from schizophrenia conceal their hallucinations because they are embarrassed; they feel it indicates that there is something wrong with them.

61 Dr Skinner said that it was apparent that the accused’s mental condition was worsening through 2003. It was clear he was not coping at the time, as evidenced by his behaviour. She said that the fact that the accused had spent the whole of the previous night at a police station, and therefore had had no sleep, would have aggravated his underlying condition and made it more difficult for him to be in control.

62 Dr Olav Neilssen interviewed the accused at Long Bay Gaol on 30 April 2004. He also had seen a great deal of the documentary material relating to this case. He wrote a lengthy report dated 23 May 2004 and a supplementary report dated 28 June 2005.

63 The accused told Dr Nielssen that in 2002 he suddenly began hearing voices. He said “It felt like a radio had been switched on in my head that was never turned off.” He thought he could hear what people were saying to themselves about him. He also reported smell hallucinations, particularly burnt rubber. (He also described this phenomenon to Dr Skinner).

64 The accused gave Dr Neilssen a quite different version of the killing of the deceased from any given previously. He said that the deceased got up and came towards him and he thought he was going to harm him. He said, “He tried to throw a punch at me so I hit him with the hammer…I was acting in self-defence.”

65 Dr Neilssen also had access to the accused’s prison medical records. These show that he was admitted to the psychiatric ward of Long Bay Prison Hospital on 16 October 2003 and was discharged in March 2004, after responding to treatment with anti-psychotic medication. His treating doctor had diagnosed him as suffering from the chronic mental illness, schizophrenia. Dr Nielssen also considered that the accused was suffering from an atypical form of schizophrenia on the basis of the symptoms which had been elicited. The offence itself, he noted, was bizarre and self defeating in a way that was consistent with an abnormality of reasoning.

66 In his first report, of May 2004, Dr Nielssen expressed the view that the accused was suffering from an abnormality of mind and impaired judgment within the meaning of s 23A of the Crimes Act. However he did not think that the accused was so severely affected by symptoms of mental illness that the defence of mental illness was available to him. In his later report, dated 28 June 2005, Dr Neilssen revised this later opinion and expressed the view that at the time of the killing the accused was suffering from a disease of the mind, the symptoms of which prevented him from knowing that his actions in killing the deceased were morally wrong, and prevented him from reasoning with composure as to the alternative courses available to him. Accordingly, Dr Nielssen concluded that the defence of mental illness was available to the accused. Dr Nielssen summarised the deterioration of the accused’s condition in the following terms:

“Mr Daniels reported the onset of symptoms of mental illness in the form of auditory hallucinations of voices in the year before the offence. The statements of Mr Daniels’ parents show that his thinking and behaviour deteriorated to the extent that they took out an Apprehended Violence Order against him. There was a pattern of increased aggressiveness in the months before the offence. He attracted a series of criminal charges culminating in the bizarre shooting of a neighbour with an arrow several days before the homicide. His behaviour was considered to be sufficiently abnormal for a magistrate to refer Mr Daniels to the local psychiatric hospital for assessment on three occasions in the month before the offence. He was found to be acutely mentally ill soon after his reception to gaol and was referred for admission to the Prison Hospital as a Forensic Patient..
The further videotapes did not reveal any more signs of acute mental illness, apart from what was considered to be an abnormal affect and the absence of a reasonable explanation for his behaviour. However, I believe he was harbouring symptoms of mental illness that he concealed from the investigating police.”.

67 Dr Nielssen gave evidence in the defence case. He was asked by Mr Barber to comment on the connection between cannabis abuse and the onset of schizophrenia. He answered that cannabis does not cause schizophrenia, but it can make it worse. In particular, people who have a propensity to develop schizophrenia probably have an earlier onset and more frequent relapses if they continue to use cannabis.

68 Dr Nielssen was cross-examined by the Crown Prosecutor as to some of the unusual features of this case which might militate against a finding that the accused was mentally ill at the time of the killing. These included the answers given during police interviews, which might have indicated that the accused knew the nature and quality of his act, and that what he was doing was wrong. Dr Nielssen responded that in his opinion the accused did understand the nature and quality of his act. He also probably understood that it was legally wrong. However in his view, the accused’s reasoning was so affected by the symptoms of schizophrenic illness that he did not understand that his acts were morally wrong. The accused, of course, had at no stage told the police about any auditory hallucinations. This was a further matter referred to by the Crown Prosecutor in his questioning of Dr Nielssen. The doctor replied that the accused told him in their interview that the voices were instructing him not to disclose their presence. This was not an uncommon feature, he said, with people suffering from schizophrenia.

69 One of the other disturbing features of the case which Dr Nielssen was asked about, was the fact that the account which the accused gave to the doctor of the killing of the deceased was quite different from all previous accounts, and raised for the first time the issue of self-defence. Dr Nielssen was unable to give a complete explanation for this. However, he thought it was a glib excuse which showed poor judgment and was probably due to the partial treatment which the accused had received at the time he gave this version.

70 I should emphasise here that I do not take the account of the killing which the accused gave to Dr Nielssen as realistically raising self-defence as an issue in this trial. I have no doubt that the deceased was lying down and was almost certainly asleep when he was struck by the accused.

Discussion

71 In order to establish the defence of mental illness it is incumbent upon the accused to prove, on the balance of probabilities, that at the time of the killing he was suffering such a defect of reason from a disease of the mind as to either prevent him from knowing the nature and quality of his act or that what he was doing was wrong. It is the second limb of this defence which is relevant here, namely his ability to understand that what he was doing was wrong.

72 In the present case two highly qualified psychiatrists, Drs Skinner and Nielssen, have given evidence that in their opinion the accused was mentally ill in the relevant sense when he killed the deceased.

73 Nevertheless, as the Crown Prosecutor has pointed out in his written submissions, there are a number of factors which might tend to undermine the defence of mental illness in this case. These factors arise out of the different accounts given by the accused at different times, both as to his actions on the night of the killing and also as to his mental state at the time. As to his actions, he first told the police on 7 October that he had nothing to do with the killing of the deceased. Three days later, on 10 October, he made very clear admissions that he had struck the deceased on the head while he was asleep. Later again, he told Dr Nielssen that the deceased was threatening him and that he was acting in self-defence.

74 The accused has similarly given inconsistent claims of suffering from auditory hallucinations. These were never mentioned to the police. Nor, other than complaining of a “chip” in his head, were they mentioned to the doctors at East Wing shortly after the killing. It was only when he spoke to Dr Skinner that he claimed to have had audio command hallucinations. Moreover, his account of these hallucinations has differed from time to time.

75 I have taken all these matters into account. Both Drs Skinner and Nielssen were also aware of most of them when they concluded that the accused was mentally ill at the time of the killing. In these circumstances, I do not regard these matters as sufficiently weighty to enable me to go behind the conclusion reached by those doctors.

76 An analysis of the accused’s actions in the nine months or so before the killing reveals a disturbing pattern of escalating behavioural problems and violence. I know that it is easy to be wise in retrospect, but this whole tragedy might have been averted if this pattern had been picked up earlier. Many of the danger signs were already clearly there.

77 I should note here that the accused’s maternal grandmother suffered from schizophrenia. This diagnosis was made after she tried to drown her four- year-old daughter, the accused’s mother. She spent most of the rest of her life in an institution. A family history of schizophrenia is not, as the psychiatrists emphasise, diagnostic of this condition. However in a person who is otherwise displaying symptoms of disturbance, it can lend weight to a diagnosis of this illness.

78 Before formally reaching my verdict I should say, for the record, that I have taken into account the various matters referred to in s 37 of the Mental Health (Criminal Procedure) Act. I think it unnecessary for the present purposes to describe them here. They are all known to me, and have, as I say, been taken into account.

79 In the light of the whole of the evidence in the trial I have no difficulty in finding, on the balance of probabilities, that at the time of the killing of the deceased the accused was suffering from such a defect of reason caused by a disease of the mind that he did not know that what he was doing was wrong. It is for this reason that I propose to enter a verdict of not guilty on the ground of mental illness.

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MATHEWS AJA

10 August 2005

REGINA v Christopher Alan DANIELS

ORDER

80 HER HONOUR: On 22 July 2005, I formally found Christopher Alan Daniels not guilty of murder on the ground of mental illness. Upon his undertaking to remain in custody, the matter was adjourned until today for the making of the consequential orders.

81 Today Mr Barber, who appears for Mr Daniels, has not sought an order for conditional release under s39 of the Mental Health (Criminal Procedure) Act 1990. However, he has pointed out that Mr Daniels has been held in the prison system at Silverwater Gaol among convicted criminals and not, as would apparently be the purport of the mental health legislation, within a psychiatric institution within the prison system. This is notwithstanding the fact that I recommended, on 22 July, that he be returned to his previous placement at the psychiatric wing at Long Bay Gaol.

82 Both the Crown Prosecutor and Mr Barber have separately submitted that in these circumstances I should order that Mr Daniels be detained in a hospital within the prison system pursuant to s39 of The Act.

83 The Crown Prosecutor has very fairly alluded to s81 of The Act, which anticipates that a person found not guilty by reason of mental illness will be ordered to be detained in “a hospital or other place” unless an order for conditional release is made. In other words, a hospital is seen, under the legislation, the primary point of disposition.

84 In the circumstances it seems to me highly inappropriate that Mr Daniels should be in the normal prison system.

85 Accordingly, I propose to make the orders sought by both counsel. The formal order I make pursuant to s 39 of the Mental Health (Criminal Procedure) Act, is that Christopher Alan Daniels be detained in a psychiatric hospital within the prison system until released by due process of law.

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