Regina v Enderbury

[2002] NSWSC 535

CITATION:	REGINA v. ENDERBURY [2002] NSWSC 535
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 70028 of 2002
HEARING DATE(S):	Friday 14 June 2002
JUDGMENT DATE:	14 June 2002
PARTIES :	REGINA v. ENDERBURY, Christiaan Douglas
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: P. Dare Off: A. Haesler/J. Weir
SOLICITORS:	Crown: S.E. O'Connor Off: D.J. Humphreys
CATCHWORDS:	Criminal law - trial - judge alone - murder - maliciously damage by fire - defence of mental illness - special verdict
LEGISLATION CITED:	Criminal Procedure Act 1986 Mental Health Criminal Procedure Act 1990
DECISION:	I find the accused not guilty of the two counts charged by reason of mental illness. He is to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 14 JUNE 2002

No. 70028 of 2002

REGINA v. CHRISTIAAN DOUGLAS ENDERBURY

JUDGMENT

1 HIS HONOUR: This is a trial of two offences charged in an indictment against the accused. Those offences are (1) that he did on 15 August 2000 at Ashfield murder his father, Keith Enderbury; and, (2) that on 15 August 2000 at Ashfield by means of fire he did maliciously damage property at Unit 5, 5 Benalla Avenue, intending by that damage to cause bodily injury to Keith Enderbury.

2 The trial has proceeded in accordance with s.16 of the Criminal Procedure Act 1986 as a trial by judge alone, the formalities for the necessary election having been completed and I being satisfied of the relevant matters to which the section speaks.

3 It is necessary, therefore, that I reach a verdict in accordance with s.17 of that Act which provides that in trying these proceedings I may make any finding that could have been made by a jury on the question of the guilt of the accused person and my finding has for all purposes the same effect as the verdict of a jury.

4 My judgment is required by s.17(2) to include the principles of law applied by me and the findings of fact upon which I rely.

5 The case has proceeded upon the basis that the accused person is fit to give such consents and make such admissions as might be necessary to have the proceedings dealt with as they have been by consent by the provision to me by the Crown of Exhibit A, a folder containing the statements of witnesses and the reports of doctors, together with a Crown case outline which has been given publicly in the proceedings.

6 Counsel appearing for the accused has submitted, as has the Crown Prosecutor, that I should be satisfied beyond reasonable doubt of the commission by the accused of the offences charged and all elements of them but that I should in addition be satisfied on the balance of probabilities on the unanimous evidence of three investigating psychiatrists and two treating psychiatrists that the accused had available to him and established at least on the balance of probabilities the defence of mental illness.

7 Having regard in particular to the evidence of Mr. Thomas Farrell, as well as the admissions made by the accused to the police who attended the scene and later during the recorded interview, I am satisfied beyond reasonable doubt of all matters of fact necessary to support the two charges.

8 Having regard to the evidence provided to me by way of report from Dr. Munro, Dr. Greenway, Dr. Nielssen, Dr. Lucas and Dr. Skinner I am satisfied on the balance of probabilities that at the time of the doing of the acts constituting the offence the accused was suffering from mental illness so as not to be responsible according to law for his actions at the time when the act was done.

9 I am required therefore to consider in that regard the matters to which s.37 of the Mental Health Criminal Procedure Act 1990 refers, that is to say, I must set out in my judgment as provided by s.17 of the Criminal Procedure Act 1986 by way of reference to the relevant principles of law the legal and practical consequences of the finding of an accused not guilty on the ground of mental illness.

10 The verdict must be returned in accordance with the law and the facts as found. In the event of an accused person having been found to be not guilty on the ground of mental illness I am required by law to make an order that the accused be detained in strict custody in such place and in such manner as seems fit until released by due process of law.

11 Such an order would in this case require that the accused be detained in an appropriate psychiatric institution. That would involve the continued detention of the accused in an appropriate psychiatric institution until release and that the accused will after such an order come under the supervision of the Mental Health Review Tribunal which consists of a president whose deputy must be a lawyer. The Tribunal would be constituted by two other persons, one of whom must be a psychiatrist, the third of whom is a person who has suitable qualifications or experience for the task.

12 It would be the function of that Tribunal to review the accused’s case as soon as practicable and make a recommendation to the Minister for Health as to the accused’s continued detention, care or treatment. Only if satisfied that the safety of the accused or that of any member of the public would not be seriously endangered by the accused’s release may the Tribunal make a recommendation for release.

13 If there was such a recommendation it would go to the Minister for Health who must then notify the Attorney General and furnish a copy of that notification to the Director of Public Prosecutions.

14 In the event there should be no objection to a recommendation for release within 30 days after the notification by the Minister for Health an order may be made for the accused’s release providing that the Minister for Police and Emergency Services is informed of the potential release, otherwise the Tribunal continues the supervision of the detention, care or treatment of the accused in a place and manner specified by the Tribunal.

15 The Tribunal must at least once every six months again review the case and make recommendations concerning the accused’s continued detention, care and treatment in hospital, prison or other place and as to his release and must review the case and make a recommendation to the Minister for Health if requested to do so by the Minister, the Attorney General, the Minister for Corrective Services, the Chief Health Officer or a Medical Superintendent of a hospital. No release may be recommended unless the Tribunal is satisfied as to the safety of the accused or any member of the public.

16 Were there to be release ordered then it may be on conditions or unconditionally. In the event of any breach of conditions or where the mental condition of the accused deteriorates so that he may be a danger a further order may be made for his apprehension, care and detention. Security conditions as necessary would continue whilst the accused is detained.

17 It is only where the relevant requirements of the legislation and the Tribunal have been met that a person may be released or having been released may be no longer subject to the restrictions that had been placed on that person concerning release.

18 In those circumstances I conclude that the special verdict provided for by s.38 is all that is available to me in this case to reach having regard to the unanimous and uncontested evidence.

19 Before, however, pronouncing the order required by s.39 I should refer to the immense tragedy that has overtaken this family as a consequence not of the accused’s conscious behaviour but of his suffering from an illness which over the years has been observed by medical practitioners prior to the commission of these offences and plainly diagnosed, after them.

20 When such things happen, as they do, and matters such as this come before this court it is always an occasion of tragedy and regret.

21 In making the formal legal orders required for the disposition of the case one cannot shut one’s eyes to that disposition being required by law in circumstances of such grave human tragedy.

22 That said, having regard to the admissions and consents that have been made and particularly as both counsel submit to me the order is proper I find the accused, Christiaan Douglas Enderbury, not guilty of the two offences charged by reason of mental illness. He is to be detained in the psychiatric ward of the hospital at the Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

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Last Modified: 06/20/2002