Regina v Joshua Francis Green

[2006] NSWSC 1365

CITATION:	Regina v Joshua Francis Green [2006] NSWSC 1365
HEARING DATE(S):	7 December 2006
JUDGMENT DATE :	7 December 2006
JUDGMENT OF:	Barr J at 1
DECISION:	Accused not guilty of the charge by reason of mental illness. Accused to be detained at Pod 20 MRRC Silverwater or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.
PARTIES:	Regina Joshua Francis Green
FILE NUMBER(S):	SC 2006/1842
COUNSEL:	N Harrison C Bruce
SOLICITORS:	S Kavanagh Legal Aid Commission of New South Wales

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

7 DECEMBER 2006

2006/1842 REGINA v JOSHUA FRANCIS GREEN

JUDGMENT

1 HIS HONOUR: The accused, Joshua Francis Green, has pleaded not guilty to the charge that on 13 January 2006 at Yamba he murdered Christine Hunt. The accused has elected to be tried by judge alone and the Crown has consented. I shall explain when I review the psychiatric evidence why I think that the accused has the capacity to make his election.

2 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offence and that he had the requisite state of mind. The Crown and the accused have put before the Court a statement summarising the events about which they agree and which led to the charge now being tried. Both sides have submitted that those facts suffice to prove the Crown case beyond reasonable doubt. In my opinion those submissions should be accepted.

3 The accused contends that he is not guilty because at the time of the events giving rise to the charge he was mentally ill and therefore not legally responsible for his actions. He must prove that it is more likely than not that that was so. If he does, the law provides for the Court to return a special verdict that he is not guilty by reason of mental illness.

4 The evidence shows that the accused is a single man, born on 31 May 1975. At all material times he was living with his mother, Mrs Christine Hunt, in a house at Yamba. On 13 January 2006 the accused and his mother were at home and during the afternoon they decided to go fishing together. The deceased went into her bedroom to change her clothes. The accused went to the kitchen, took a knife from the drawer, walked to his mother’s bedroom and stabbed her many times, killing her. He brought a wheeled garbage bin into the house, placed his mother’s body in it and returned it to its place in a line of other bins. He washed the knife and put it back in the drawer. He cleaned the house. He changed his clothes and showered.

5 At about 8:30 on the evening of the same day the accused went to the nearby residence of a friend, Mr Moore, and told him that he had killed his mother. The accused said “I’m going to the big house for this one”. Mr Moore telephoned the police. A few minutes later the accused himself telephoned the triple 0 emergency number and told the operator that he had stabbed his mother and thought that she was dead. He said that it had happened at 3pm. He said that he had put her body in a rubbish bin.

6 When the police arrived the accused told them that he had killed his mother and had put her body into a bin. He took them to the bin and the body was revealed. He again told the police that he had killed his mother, that he had stabbed her. He said that he thought that she was “down on me”.

7 The accused was taken to the police station and took part in a formal interview. In the course of it he said that he had stabbed his mother because he believed that she was going to kill him by head-butting him. He said that she was looking at him as though she was going to kill him. He grabbed the knife and stabbed her twice in the heart.

8 In due course an autopsy confirmed that the cause of death was the combined effects of multiple stab wounds. There were fourteen such wounds, ten to the upper chest, two the left arm and two to the left hand. Three of the chest wounds led to injuries to major internal organs. The hand wounds were consistent with defence wounds.

9 The accused has a history of mental illness. In 2002 he was diagnosed as suffering from schizophrenia. He was admitted as a mental health patient in that year and in 2003. After 2003, he was discharged from hospital into the full-time care of the deceased, his mother. He was prescribed antipsychotic medicine. Between 2003 and November 2005 he received regular psychiatric treatment and continued taking antipsychotic medicine. On the day of the deceased’s death he had taken the medicine prescribed. Two well-known and highly experienced psychiatrists wrote reports for the Court, Dr Bruce Westmore, whose report, exhibit 1, was written on 8 June 2006, and Dr Robert Delaforce, whose report, exhibit D, was written on 20 September 2006. Dr Westmore and Dr Delaforce were qualified by the accused and by the Crown respectively. Both read documents recording the events out of which the charge arose, including the several accounts the accused had given, notably the one in the formal police interview. Both experts reviewed discharge summaries and other documents dealing with the accused’s admission to mental hospital, his treatment there and his discharge.

10 Dr Westmore saw the accused first. The accused told him that he was receiving a sickness allowance and had schizophrenia. He said that he had been on benefits for about three years. He had been living with his mother when the incident occurred in a flat in Yamba. He said that they had been living in Yamba for about a month before his mother’s death. Before that they had been residing with his brother, his brother’s girlfriend and two children in a rented house in a place nearby. He and his mother moved out of that house because the group, as he put it, broke up.

11 Explaining why he had killed his mother he said to Dr Westmore “I just thought she was trying to kill me, one thing led to another and I killed her”. Dr Westmore asked him why he had thought his mother was trying to kill him and he said “I’m not sure, I was just standing there one day and all of a sudden I thought she was trying to kill me”. He said and repeated that he and his mother had not argued on that day. He said that he and she were getting on well. He denied having thought in the past that his mother was trying to kill him or that anyone else was trying to kill him. He denied hearing voices or receiving messages from the television or radio.

12 Dr Westmore asked him whether it was something that his mother had said that made him believe that she was wanting to kill him. He said “No, not really, I just thought she was trying to kill me by head-butting me”. Asked how long he had had those thoughts, he said that he did not know, about twenty minutes, not long. He said that he had not spoken to his mother about his concerns. He did not know why. He did not really think of speaking to her about it. Dr Westmore asked him whether he still believed that his mother had been planning to kill him and he said “Yeah, sort of a spur of the moment thing …”.

13 On the day that he stabbed his mother he was taking the antipsychotic medication Solian, 200 milligrams twice a day. That was the dose he had been prescribed. He said that he was seeing a doctor regularly from the Community Mental Health Team in the place where he and his mother had lived until recently, but had not yet organised for psychiatric care in Yamba. He said that he had seen a doctor four or five months before his mother’s death.

14 By the time Dr Westmore saw the accused he was still taking Solian, but at the increased dose of 400 milligrams twice a day. He said that in high school he had smoked cannabis and had experimented in a limited way with amphetamines and ecstasy. He denied using any drugs or alcohol on the day of the killing.

15 Dr Westmore reviewed the family history. The accused had never met his biological father. He was an only child of his parents union. His mother was aged fifty-one when she died. The accused had a stepfather in his fifties, living in New Zealand. He had separated from the accused’s mother when he was aged six or seven. There was no known family history of psychiatric illness.

16 The accused was born in New Zealand and grew up there. He had been a happy child, not exposed to violence or sexual abuse. He was a below average scholar. He worked part-time as a cleaner and did maintenance work. He was a strapper at a racecourse but had had no other employment. He had not worked for a wage for, he thought, about six or seven years before the interview with Dr Westmore. He had never had a girlfriend and did not form relationships because he was moving all the time and had little money.

17 There was no relevant criminal history.

18 Dr Westmore tested him for the criteria for fitness to be tried and satisfied himself that the accused met them.

19 Dr Westmore noted that the accused had suffered relapses in the past despite complying with his medication and despite abstaining from the abuse of drugs. The illness had been characterised by significant negative or type II symptoms, an agitated perplexed affect with paranoid thoughts. He had also had a depressed mood and a wide range of other symptoms consistent with the illness schizophrenia. According to the clinical notes, his illness came on when he was twenty-seven years of age when he began to act in a bizarre way and make bizarre statements. From that time, also, his care of himself deteriorated. His mother had noted that he had a decline over the preceding two years.

20 Dr Westmore is of the opinion that the accused has suffered from what psychiatrists refer to as a primary delusional experience. He said that there were three types of primary delusional experience, referred to as delusional mood, delusion perception and a sudden delusional idea. He thought it probable that the accused suffered a delusional mood. In such a state the patient initially develops the idea or has a feeling that there is something wrong, but cannot clearly define what it is. Following the development of delusional mood, the patient may go on to experience a delusional perception or a sudden delusional idea. Dr Westmore thought that the accused had suffered an autochthonous delusion. He thought that there was no delusional misinterpretation but a sudden delusional idea relating to his mother. There appears to have been nothing she did or said that made him develop the belief that she was intending to kill him. Therefore the experience was that of an idea, not a perception.

21 Dr Westmore is of the opinion that the defence of not guilty on the ground of mental illness is available to the accused. His opinion is that he was suffering from a disease of the mind which would have totally deprived him of the capacity to know that he ought not to do the act. He has the illness schizophrenia and will require extended psychiatric support and supervision.

22 Dr Westmore noted that the dose of antipsychotic medication had been doubled since the incident and that the accused continued to maintain the view that his mother was trying to kill him. He thought that he had impaired insight into the ramifications of what he had done, particularly in terms of the grief and sense of personal loss he will experience when he fully understands that he has killed his mother in the context of his mental illness.

23 Dr Delaforce read the relevant documents, factual and medical, and interviewed the accused. The accused was somewhat more forthcoming with Dr Delaforce about his mother’s and his moving to Yamba. He said that “tempers were flaring” in the house where they were living. Something was going to happen and the children were getting on his nerves. He did not blame any particular person for these problems and said everybody contributed to the difficulties. He admitted not liking his sister’s baby and Dr Delaforce asked him whether his mother’s giving a lot of attention to the child was a problem. He said that things were going in a bad direction and that not liking the baby “could have been the start of something”. He said that since they had been living in Yamba his relationship with his mother had been good, as it had been before they had moved into the house with the other family members. He agreed that he had told the police that his mother had been asking him to stop smoking and to get a job. He said that they were no reason for him to kill her. He said that he could not really explain his behaviour in stabbing his mother. He just thought that she was trying to kill him “and stuff like that. One day there I started to freak out and panic”. Asked what he meant by “stuff like that” he said “I thought she was attacking me somehow through a thought in my head…I thought she was trying to kill me by head-butting me or something”. Later in the interview he said that he did not really think that her head-butting him would kill him but continued “probably the start of what was going to happen…the start of going to kill me”.

24 He confirmed that the thought was his and not put into his head by his mother or anybody else. It had never previously occurred and began up to about twenty minutes before he stabbed his mother. He had never during his psychiatric admissions had paranoid thoughts that people were going to harm him. 13 January 2006 was a Friday. The accused denied any superstitious thoughts about Friday the 13th. He was asked about an answer he had given to one of the questions asked by the police, “I was just trying to save myself, you know”. He said that he was saving himself from being his mother’s victim and therefore from being killed.

25 Dr Delaforce asked him when he first thought that it was wrong to kill his mother. He responded, “I didn’t really think it was wrong. Just a bit sad it happened really”. When asked whether he regretted what he had done to his mother he said, “suppose so. No, don’t really think about it. I kind of do. It’s not a good thing. We had a pretty good life together…things were going good”.

26 Dr Delaforce reviewed the psychiatric history and said that he had heard voices but that they had ceased after the drug Solian was prescribed. Asked whether he had ever heard a voice telling him or influencing him to harm his mother he said that he was “pretty sure” of hearing a voice. He said “I had a couple of voices telling me to kill my mother”.

27 Only once since the death of his mother, late in August 2006, had he had another auditory hallucination. This time the voice told him to kill himself. However it did not significantly influence him and he was able to deal with it.

28 Dr Delaforce also reviewed the report of Dr Westmore.

29 Dr Delaforce is of the view that the diagnosis is a mental disorder, schizophrenia, residual type, with prominent negative symptoms. He considers the diagnosis of schizophrenia compelling. He thought that it had continued to the present time since its onset in about 2000. There were no indications of any substance abuse or substance dependence.

30 Dr Delaforce considers that there is no unfitness to be tried. He considers that there is an unarguable history of continued and overall severe schizophrenia since the gradual onset of that disease in about 2000, with acute episodes in 2002 and 2003. Dr Delaforce looked critically at the accused’s claim of the sudden onset of what was a persecutory delusion with no continued delusional thinking. All the more so because of the fact that his further claim to have heard a voice telling him to kill his mother was his first ever report to that effect. Dr Delaforce noted his previous denials of auditory hallucinations and doubted that he had had what was called a command hallucination telling him to kill his mother.

31 However, Dr Delaforce had no doubt about the reliability of the information given by the accused about the onset of his sudden belief in the minutes prior to the death of his mother that she was going to kill him and that he therefore had to act quickly to save himself and make her, not him, the victim. The express belief that she would kill him by head-butting him was, Dr Delaforce said, obviously odd and inappropriate, but consistent with the unusual beliefs or delusions seen in schizophrenia.

32 Dr Delaforce supports the availability of the defence of mental illness. He considers that when he killed his mother the accused had a disease of the mind, schizophrenia, that resulted in his defect of reasoning, first with his delusional belief that his mother was going to kill him and then with his failing to know that it was wrong to kill her in order to save himself. He thought that the accused’s lack of understanding of the wrongness of his action followed automatically from his delusional belief that he had to kill in order not to be killed.

33 The test for a defence of mental illness, as it relates to this case, is whether the accused is able to appreciate the wrongness of the act that he was doing. If through disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong.

34 Dr Westmore and Dr Delaforce agree that the accused was suffering from a mental illness, that his mind was disordered, and that because of the delusional belief that if he did not kill his mother she would kill him, he had to kill her.

35 The evidence shows that the accused deliberately stabbed his mother and thereby caused her death, intending at the time to kill her. The opinions of Dr Westmore, and Dr Delaforce, which I accept, show that he has discharged the burden of proving that he is not guilty nevertheless because of the mental illness from which he was suffering.

36 As I have said, the accused is on a higher dose these days of the antipsychotic drug he has been taking. He sees a psychiatric registrar one about every four weeks. He is still very ill. He still appears to entertain the thought that his mother would have killed him if he had not killed her. He will need to be under the care of psychiatrists and psychiatric nurses indefinitely. Dr Delaforce wonders whether his present dose will be effective in permanently preventing further violence.

37 The events giving rise to these charges have been distressing and perplexing for the family and friends of the accused and the deceased. The sympathy of the Court goes out to all who have been touched by these tragic events.

38 The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. A strict statutory regime will then come into effect.

39 The Mental Health Review Tribunal is a body of professional experts. As soon as practicable after the verdict the Tribunal will commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may specify conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused.

40 After hearing the evidence at any later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council.

41 If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again.

42 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients.

43 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered.

44 I find that the accused is not guilty of the charge by reason of mental illness. I order that he be detained at Pod 20 MRRC Silverwater 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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