Regina v Scott Ashley Simpson

[2004] NSWSC 233

CITATION:	Regina v Scott Ashley Simpson [2004] NSWSC 233 revised - 13/04/2004
HEARING DATE(S):	23/3/04, 24/3/04, 25/3/04, 26/3/04
JUDGMENT DATE:	31 March 2004
JUDGMENT OF:	Bell J at 1
DECISION:	Not guilty of the murder of Andrew Mark Parfitt by reason of mental illness; To be detained in strict custody in a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.
LEGISLATION CITED:	Criminal Procedure Act 1986 Mental Health Act 1990
PARTIES :	Regina Scott Ashley Simpson (Accused)
FILE NUMBER(S):	SC 70030/03
COUNSEL:	Mr T Hoyle SC (Crown) Ms C Davenport (Accused)
SOLICITORS:	S Kavanagh Sachs Gerace Lawyers (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday 31 March 2004

70030/03 REGINA v Scott Ashley SIMPSON

JUDGMENT

1 BELL J: On 23 March 2004 Scott Ashley Simpson was arraigned before me on an indictment that charged him with the murder of Andrew Mark Parfitt on 30 March 2002 at Silverwater.

2 Prior to his arraignment the accused elected, in accordance with the provisions of s 132 of the Criminal Procedure Act 1986 (NSW), to be tried by judge alone. A signed form of election dated 22 March 2004 is in evidence. The Director of Public Prosecutions consented to the election. I was informed by Ms Davenport, who appeared on the accused’s behalf, that prior to making the election the accused had sought and received advice from her and from her instructing solicitor in respect of it. I was satisfied of the matters to which s 132(1)(b) of the Criminal Procedure Act directs attention and that the provisions of s 132(3) and (4) had been complied with. The trial proceeded before me alone.

3 Upon his arraignment the accused pleaded that he was, “Not guilty. Not guilty on the basis of I was insane at the time. Your Honour.” This was a plea that he was not guilty of the offence charged in the indictment. It served to foreshadow the principal issue in the trial.

4 I was informed that the accused consented to the tender of witness statements without the need for the makers of the statements to give oral evidence. The accused had no objection to expert medical evidence being called by the Crown in reply. This was a convenient course since he intended to give evidence and his counsel wished the doctors to have the benefit of seeing him give evidence. In light of the terms of the accused’s plea which I have set out above and given that he was represented by experienced counsel I was satisfied that the accused’s consent to the waiver of provisions of the Evidence Act 1995 (NSW) was effective.

5 There was no issue as to the facts save for one matter that arose in the evidence of the accused and to which I will return.

6 The accused began exhibiting signs of mental disturbance around September 2001. These were associated with episodes of violence.

7 On the evening of 12 October 2001 the police were called to premises in Granville in response to a report that a person was climbing over garage roofs. The police attended at the scene and spoke with the accused. He said that he was being chased by two islander males who wanted to rob him. He also told the police that he was being watched by ASIO and the NCA who had “scopes” on him at the time. He did not appear to be affected by drugs or alcohol. The police reported that the accused might be suffering from a mental illness.

8 The accused was admitted to the Cumberland Psychiatric Hospital for treatment of a psychotic episode on 19 October 2001. He was discharged on 31 October 2001.

9 Following his discharge he travelled to Coffs Harbour where his mother and other members of his family were living. On arrival he complained that the CIA, the NCA, the Police Commissioner and ASIO were following him. The next day he went to the beach with his mother. He came out of the surf complaining that other board riders were ASIO agents. He said he had been accused of poisoning the ocean. On the way home from the beach his behaviour was bizarre. That evening he became unaccountably angry and threw a butcher’s knife at his sister. Thereafter his behaviour towards his mother, sister and aunt became increasingly aberrant. He threatened to ignite a gas cylinder and to “blow the whole fucking street up”. When his aunt attempted to remonstrate with him he threw a large knife at her. At different times he assaulted both his mother and aunt by pressing a screwdriver to their necks. The police were called and the accused was taken into custody.

10 Detective Senior Constable Johnston said that on his arrival at the Coffs Harbour home the accused asked, “you’re not ASIO are you?” When informed that he had been arrested for offences involving knives and his mother and aunty he responded “She’s ASIO and she’s got cameras in her teeth”. The accused was assessed by a medical practitioner and given some medication and then returned to the Coffs Harbour Police Station. He was charged with offences arising out of the assaults on his mother and aunt.

11 The accused was in custody as a remand prisoner at the Metropolitan Reception and Remand Centre (the MRRC) on 13 November 2001. On that date a document styled “Mandatory Notification Form for Inmates ‘At Risk’ of Suicide of Self-Harm” relating to the accused was completed by staff at the MRRC. Relevantly it recorded the following:

“Inmate has made homicidal threats towards cellmate, has self and suicidal history recorded, health problem notification status h/o violence & symptoms of mental illness”.

The report identified as a “current situational stressor” that the accused had been placed “two-out” and stated “this inmate is not suitable for two out placement.” It was said that the accused could not be managed at his normal location. In the space provided for comment the following was recorded,

“Normal safe cell routine. One out – not to be two out has made homicidal threats against cellmate.”

12 It appears that the accused was at liberty on bail at least from early February 2002. At that time he was renting a room with Julie-Anne Dixon, her two young children and her sister.

13 On 27 March 2002 the accused went to the Parramatta Police Station and informed the police that he was in breach of his bail conditions in that he had failed to report to the police daily, as he was required to do. He said that he wanted to go to prison until his court matters were heard. He threatened that if the police did not take him into custody he would do something to someone or something until he was arrested and charged. He said that ASIO was out to get him and that they had taken everything that he owned. He complained of hearing voices. Generally he was making threats, both to harm himself and other persons. The police considered his behaviour to be irrational, confused and uncooperative. They took him to the Cumberland Hospital for assessment. The doctor conducting the assessment did not find evidence of mental illness for the purposes of the Mental Health Act 1990 (NSW) and the accused was returned to the Parramatta Police Station. He was charged with breaching the conditions of his bail. It appears that he was subsequently released on bail.

14 On the afternoon of Friday 29 March 2002 Ms Dixon, her children, and a family friend, Jeff White, were about to leave her home to go fishing. Mr White was driving his vehicle and Ms Dixon was seated in the front passenger seat. As the vehicle reversed out of the driveway the accused swung a metal baseball bat towards Mr White. It struck the driver’s side of the car. Mr White accelerated and drove away. The accused threw the bat towards the car. Mr White and Ms Dixon drove to the Windsor Police Station and reported the incident. The assault upon Mr White appears to have been wholly unprovoked. There was no history of ill will between the two.

15 The accused was arrested on the afternoon of 29 March 2002 and charged with the assault on Mr White and with maliciously damaging Mr White’s car. He was kept overnight in the cells at the Windsor Police Station.

16 Senior Constable Barlow was the Custody Manager at the Windsor Police Station on the evening of 29 March 2002. He observed that the accused underwent mood swings. For most of the time he appeared calm, then he would start talking to himself as if someone were in the cell with him. Senior Constable Barlow said that the accused had made him feel very uncomfortable because it appeared that he could “snap at any moment”.

17 The accused was taken to the MRRC the following day. On arrival he completed an application in the following terms:

“I Scott Simpson ask permission to placed on protection for the following reasons. I have had big dramas in the main with (Kooris) and have had big fights with them. They have tried to kill me in the past and me them. I have fear of them killing me or me them if placed together. Or hurt me very badly and me them.”

18 The accused’s case file created at the MRRC in respect of his admission on 30 March 2002 recorded the initials “SMI” under the heading “Features to be Observed”. It appears from a pro forma Corrections Health Service Medical Alert that the initials SMI are an acronym for “Serious Mental Illness”.

19 Provision is made for a Corrections Health Service staff member to record an inmate’s medical history in a shorthand way by selecting one or more of a number of options listed on the pro forma Medical Alert. The accused’s medical history was given as follows: general impulsive behaviour, impulsive suicide attempts, other self-harm behaviour particularised as hanging, illicit drug use, intentional drug overdose, unintentional illicit drug overdose, serious mental illness, suicide attempt when seriously mentally ill and suicide attempt if not compliant with major psychotropic medications.

20 On the Reception Health Status Notification, a form that is also designed to be completed by a staff member of the Corrections Health Service, it was recommended that the accused have a “two out placement”. The author noted that the accused did not appear to be suffering from drug effects, alcohol effects, nor was he considered to be an acute risk of suicide or of self-harm. It appears that he was assessed as having current symptoms of a serious mental illness. The history recorded on this form included impulsive or stress related acts of self-harm and impulsive or stress related suicide attempts. This assessment was completed at 5:00 pm.

21 At around 5:30 pm Marlene Bortoli, a Drug and Alcohol Counsellor, working at the MRRC saw the accused. Her duties included screening the intake of prisoners at the MRRC. This process required her to speak to the prisoner and complete a form. Ms Bortoli recorded her observations and impressions of the accused on a form described as the “Screener’s Summary of Inmates Presenting State and Immediate Needs” as follows:

“Inmate has been incarcerated before. States no AOD. Has gambling issues. States no history of recent self-harm. Presented as unsure about his answers. Taking time and thinking about answers. Education Year Nine. Whilst inmate at counter in intake became very aggressive towards another inmate and assaulted him without a cause. Can be violent.”

22 In a statement made on 23 June 2003 Ms Bortoli expanded on her impressions of the accused at the time she undertook the screening process. He had taken a really long time to answer her questions and his responses had been confined to “yes” or “no”. He had no expression in his voice and rarely looked at her. At the conclusion of her interview she escorted him to the main desk. She saw him speak with another prisoner. He engaged in a friendly conversation with the inmate. This was a total change from his presentation with her. He appeared to her to be acting very strangely.

23 Officer Katieli was a Senior Correctional Officer working at the MRRC on this day. At about 6:10 that night he saw the accused at the desk in the Intake area. An Aboriginal inmate walked past him. Without any warning or provocation the accused punched the inmate to the head. Officer Katieli took hold of the accused and moved him away asking, “why did you do that for”. The accused replied, “I just don’t like him”.

24 Officer Katieli completed a report relating to the assault that he had witnessed and other papers relating to the intake of the accused. After this he handed the accused over to another officer who took him to Darcy Wing.

25 Officer McInnes was working in D Block on the evening of 30 March 2002. His duties included monitoring the safe cells. He said that at around 6:00 pm the accused was brought down from the Intake area and placed in the holding cage in D Block Pod 1. Officers Sweetnam and Jennison moved the accused from the holding cage and placed him in Cell 37 at 6.08 pm. This was recorded in the Cell Register.

26 Officer Jennison said that the accused was placed in Cell 37 because the block was overcrowded.

27 When the accused was placed into Cell 37 Andrew Parfitt was already in the cell lying on his bed.

28 Andrew Parfitt came into custody at the MRRC on 29 March 2002. He was aged thirty-four years. He was 183 cm tall and of relatively slight build, weighing 65 kgs. I was informed by the Crown Prosecutor that it was an agreed fact that Mr Parfitt was in custody in relation to charges alleging the commission of sexual offences against young males. On the date of his reception into prison Mr Parfitt requested that he be placed on protection, since he feared for his life.

29 At around 6:20 pm Officers McInnes, Jennison, Sweetnam and Cases were searching Cell 33. During the search they were informed that an inmate was lying on the floor in one of the cells. Their attention was directed to Cell 37. They went to the door of the cell, which was locked. Officer Cases looked into the cell and saw the deceased lying on the floor covered in blood from his head to his waist. The accused was sitting on a bed to the left of the cell, staring at the wall in front of him. He had blood on him, especially around his shoes and leg area. There was a large amount of blood on the floor surrounding the deceased and on the walls of the cell.

30 Officers Jennison and Sweetnam opened the cell door and commenced administering first aid to the deceased. The accused was told to come out of the cell. He was compliant and walked out of the cell and knelt down facing the wall. He appeared to be calm and in control. He did not exhibit any signs of aggression.

31 Officer Sweetnam described the scene when he first looked into the cell. He too saw the accused seated on the bed, staring at the wall with a blank look on his face. The accused had blood on him and his shoes were covered in blood. Officer Sweetnam endeavoured to find a pulse by checking the left wrist and the neck of the deceased. He was unable to detect one. He rolled the deceased onto his back supporting his neck as he did so. The deceased’s head as felt like jelly in his hands. It was covered in blood and his face was very swollen. His mouth and his eyes were closed. He was not breathing at all. Nurses attended and endeavoured to clear the deceased’s airway. His teeth and jaw were shattered. He was formally pronounced dead when ambulance paramedics arrived.

32 Within about fifteen minutes of the accused being placed in Cell 37 Andrew Parfitt was dead. During that period he was subjected to a sustained and vicious assault. The photographs, Ex “C”, are eloquent of the savagery of that assault. The cell door was made of Perspex to permit staff to observe activity inside it. Closed circuit television cameras were located inside the cell and it was possible to monitor activity within the cell from the Senior Officer’s office. During the period between 6.08 pm and 6.24 pm activity in Cell 37 was not monitored.

33 The deceased, a prisoner classified as requiring confinement in conditions of strict protection, was locked in a cell with an apparently mentally ill, powerfully built man who had a history of violence and who had in the recent past threatened homicidal violence to a cellmate with whom he was housed. Counsel for the accused invited me to find that there had been a “major failure of the system” in that her client had been placed in the cell with the deceased. It is not my function in trying the accused for the murder of Andrew Parfitt to inquire into circumstances that led to him being placed in the same cell as Mr Parfitt. I have not heard from the witnesses. I do not know what information was available to those responsible for the decision to place the accused in Cell 37. It is sufficient to observe that in the event that this matter has not been the subject of inquiry by the proper authorities it may be thought appropriate to conduct one.

34 Dr Little, a Forensic Pathologist, carried out a post-mortem examination of the deceased on 2 April 2002. She had previously attended the MRRC at 10.00 pm on 30 March and observed the body of the deceased in situ.

35 Dr Little reported that blood was present over much of the face and neck of the deceased and that his head was diffusely swollen. The nose and eyes showed prominent deformity. Multiple bruises were present throughout the tongue.

36 On post-mortem examination Dr Little observed a large number of injuries to the head, neck and body of the deceased. These are detailed in the post-mortem report. She expressed the opinion that the direct cause of the death of the deceased was head and neck injury. She described diffuse areas of bruising over the head and neck. There were fractures to the skull and to structures of the face, including the zygomatic arches and through the inferior part of the maxilla on both the right and the left side. The right central incisor was missing. A tooth consistent with being the absent tooth was located in the cell by the police and shown to Dr Little at the autopsy. Examination of the brain revealed subarachnoid haemorrhages at more than one site.

37 The accused participated in a video recorded interview with Detective Senior Constable McGuiness, which commenced at 4.24 on the morning of Sunday 31 March 2002.

38 The accused said that the deceased told him that he was in custody because he had set fire to a hospital. It was after this that the accused punched the deceased on his chin. Thereafter he punched him on a fair few occasions. The deceased had not retaliated; he had tried to grab hold of the accused with his left hand, but that that had been it. The accused punched and kicked the deceased to his head. When the assault commenced the deceased was sitting on his bed. He fell from it and the assault continued while he was lying on the cement floor. The accused described his punches as hard ones. He said that he had jumped on the deceased’s head from the concrete bed on a number of occasions. He was asked:

“Q 165 While you were doing this what did you intend to do?
A. To kill him.”

39 The accused presented during the interview as capable of giving a coherent account of the events of that evening. He gave no account to the police that the killing of the deceased occurred at a time when he was hearing of voices or that he had been in fear of the deceased and possessed of a belief that the deceased was going to kill him. There were features of the accused’s conduct during the interview that were the subject of comment by Dr Lucas. I will return to this.

40 The accused gave evidence. He said that when he went into Cell 37 he attacked the deceased. He denied that he had attacked him in the way in which he described it in his interview with the police. He said that he remembered punching and kicking the deceased but that was it. He denied that he had jumped on the deceased.

41 The accused gave this evidence:

“Q. Did you attack Mr Parfitt to the extent of causing his death?
A. I don’t believe so, no.
HER HONOUR: I’m sorry, I didn’t catch that answer.
A. I don’t believe so, no.
DAVENPORT: Q. How do you believe he met his death?
A. I know how he met his death, mine, it is irrelevant. All I remember, him, he’s there and he had a ‘blood full of mouth’ and there was blood all over his face.” (T 26)

…
Q. He didn’t say anything that led you to that belief?
A. Oh no, just what I remember, when I first went in there, he asked me where I come from, that was it. The officers shut the door and straight away he bent down, going like that (gesturing as though stubbing out a cigarette on the floor) and it was on and straight away I attacked him.
…
Q. When you say you believe he was trying to kill you, what was it that was telling you that or how were you getting that feeling, was it from your mind or from voices, do you remember that?
A. Well, what I was hearing, I was feeling, you know what I mean, like my body’s shaking in fear of everything around you.”

42 The accused said that he had been hearing voices at the time of his assault on Jeff White and at the time he assaulted the Aboriginal prisoner in the Intake area at the MRRC. At that time he had seen holograms, of people in suits, saying they were agents and that the Aboriginal prisoner was working for them and for the prison officers. The accused was hearing voices at the time of the assault on the deceased and during his interview with the police.

43 I turn now to a consideration of the psychiatric evidence. Three psychiatrists gave evidence in the trial. Each has had lengthy experience in forensic psychiatry and each was well qualified to express an opinion as to the accused’s mental state at the relevant time. There was no challenge to the expertise of, or to the opinions expressed by, any of the doctors.

44 Dr Lucas was retained by the Solicitor for Public Prosecutions to conduct a psychiatric assessment of the accused. Prior to speaking with the accused he was supplied with a number of documents, including the video recorded interview between Detective Senior Constable McGuiness and the accused, the accused’s MRRC Case Management File, a bundle of records from the Goulburn Correctional Centre, and from the Corrections Health Service. Dr Lucas was also given the committal transcript and witness statements made by police and prison officers. Before speaking with the accused Dr Lucas read these documents and viewed the video recording of the interview.

45 Dr Lucas interviewed the accused on 28 August 2003 in the High Risk Management Unit at the Goulburn Correctional Centre. The interview lasted for three hours. The accused was cooperative throughout and gave Dr Lucas a detailed history. After the interview Dr Lucas had a lengthy telephone discussion about the matter with Dr Westmore, who had also examined the accused. They discussed the history that each had been given and the opinions that each had formed.

46 Dr Lucas recorded the accused’s psychiatric history in his report. It appears that while in prison in the early 1990’s the accused saw a psychiatrist, Dr Rosalie Wilcox. He was placed in D Ward at the Long Bay Hospital in 1992 and, again, in 1993. Dr Lucas observed that there had been no indication of a major psychiatric disorder developing until 2001.

47 In his report Dr Lucas details the account given to him by the accused of the development of what the accused referred to as “mind control”. This included accounts of being followed by unnamed persons and of being under surveillance. He described seeing a dish hanging over a backyard shed. This was a listening device that had been snatched away by hand when he approached. He made a complaint to the Penrith Police about this harassment. The accused told Dr Lucas that he had climbed on to the roofs of neighbouring properties in order to remove antennae.

48 The accused reported to Dr Lucas that while he was a patient at the Cumberland Hospital in the period between 19 October 2001 and 31 October 2001 the intensity of his auditory hallucinations and of the messages received by him from the television decreased. His stay at the Cumberland Hospital had been extended by the Visiting Justice for two weeks. It would seem that a psychiatrist who saw the accused at this time diagnosed him as having suffered a drug induced psychotic episode.

49 Dr Lucas reported:

“In summary, over a period of six months or possibly more, Mr Simpson had developed powerful paranoid beliefs of a persecutory nature, ideas of reference and auditory hallucinations. There was a disturbance of thinking and in all a striking large range of abnormal mental experiences. He was fearful in a way not incongruent with his extensive delusional system and his experiences were resulting in increasingly disturbed behaviour. Mr Simpson remarked to me that towards the end the violence was beginning to enter into his interactions with others.”

50 The accused told Dr Lucas that while he was in the cell with the deceased the walls had been “banging”. He was receiving messages, such as “four means more”. He had seen meanings in colours around the door and on the wall. In speaking about the killing the accused referred to the CIA, ASIO, Iraq, microwaves and electromagnetic technology. He could not remember how he had been feeling, but he said that it was like ‘they’ were controlling him. Dr Lucas reported that:

“He said that he honestly thought what he did was good and referred to national security and the new world order. At one stage he during his assault upon Mr Parfitt he was so scared of him he resumed after having stopped. He said he was talking to the wall and it was talking to him. He believed that he assaulted Mr Parfitt on three separate bursts. He stopped and started again. He thought the man must have been already dead: he believed he probably broke both his cheekbones and caved his skull in. He took a break from the assault, sat down and would ‘get more instructions’, then start again. … I asked if he had intended to kill Mr Parfitt. He replied he had, and had done ‘what I was ordered to do’. He remarked about the number of times he had jumped on his head saying that he had boxed all his life, to defend himself, and usually in a confrontation would break someone’s jaw. He saw his violence in this occasion as extreme.”

51 Dr Lucas had access to the records of Blacktown and Cumberland Hospitals in preparing his report. He noted that the history given by the accused accorded with that recorded in the hospital notes.

52 Dr Lucas considered that the observations of Senior Constable Barlow concerning the accused’s behaviour in the cell at the Windsor Police Station the night before the killing to be significant.

53 Dr Lucas recorded his diagnosis of the accused in his report dated 2 September 2003 as follows:

“Mr Simpson has been suffering from paranoid schizophrenia which, as far as can be ascertained, had its onset in mid-2001. He has received treatment without gaining a full remission of his symptoms. The essential elements of his complex delusional system continue although other symptoms have ceased or become less prominent although still disturbing to Mr Simpson, especially at night.
He has a history of substance abuse. He has tried many drugs but states he has not been dependent on them. In this regard, it should be noted he has spent little time out of custody for a decade or more. The continuation of his symptoms suggests that psychosis was not drug-induced. Alcohol abuse seems not to have a problem.
He has a history suggesting the diagnosis of anti-social personality disorder. There was a conduct disorder as a child.
Mr Simpson has no current medical diagnosis.
In the period of many months prior to the incident, Mr Simpson was severely psychiatrically ill.”

54 The focus of Dr Lucas’ report of 2 September 2003 was the question of whether the accused was fit to plead. In that report he also expressed his opinion on the accused’s mental state at the time of the killing:

“On the question of a defence of mental illness, I believe it is available to Mr Simpson. Put briefly, Mr Simpson at the time of the killing of Mr Parfitt was suffering from a disease of the mind, paranoid schizophrenia. He knew the nature and quality of his act but was unable to reason about its wrongness with a moderate degree of sense and composure. He was acutely and severely mentally ill with a complex, well-developed delusional system. He believed he was under threat with his mind and some actions controlled, and he was suffering auditory and other hallucinations. There was an unusually broad-range of psychotic systems.”

55 Dr Lucas adhered to this opinion at the trial. The accused’s account of his symptoms was consistent with the diagnosis of paranoid schizophrenia. No symptoms had been described that were inconsistent with that diagnosis. The accused had been forthcoming during his interview and Dr Lucas considered that he had given a frank account. Documents demonstrated to a high degree the consistency between this account and the accused’s presentation to others on other occasions.

56 Dr Lucas was asked about the significance of the fact that the accused had not told the police that he was hearing voices or that he feared that the deceased was going to kill him or anything of the sort. He did not consider that this weighed against an acceptance of the accused’s account nor did it alter his opinion that the accused was suffering from acute paranoid schizophrenia at the time of the killing. Dr Lucas explained that people suffering florid mental disturbance may not reveal their unusual thinking processes during a structured interview. A psychotic person may complete a formal interview with the police answering the questions that are asked of him or her apparently normally. At the conclusion of the interview a general remark may lead to an account that includes the person’s delusional thinking. The transcript of the committal proceedings in this case demonstrated this point. The accused represented himself at that hearing. He took advice from the Magistrate and cross-examined witnesses quite well. He appeared to conduct himself appropriately, politely and cooperatively. However, at the end of the hearing during discussion he revealed paranoid thoughts consistent with his mental illness.

57 There were features of the videotaped interview that Dr Lucas considered were supportive of his diagnosis. He referred to Q 106 when Detective Senior Constable Lee asked the accused:

“Were you looking at my notes?”
A. No, I was just …
Q. 107 … cause all I’m doing is writing down what you’re saying, that’s all. Your wondering what the blue asterisk is?
A. No, its interesting colours, mate, that’s all.”

58 The accused that Dr Lucas that voices in his head had been trying to get him to kill the woman police officer who had “four colours” in her pen.

59 At another point in the interview the accused stretches, looks up at the ceiling and emits a prolonged “shush” sound. Dr Lucas asked the accused about this. He had no recall of the incident, but said that he would have been answering the voices.

60 Dr Westmore examined the accused at the Goulburn Prison on 23 August 2003 in response to a request from a Ms Betts, a barrister, who it appears was acting for the accused at the time.

61 During the course of the interview the accused said to Dr Westmore, “Events happened and I bashed him to death”. When asked why he bashed the other man the accused responded, “I thought he was, I was hearing voices, it’s not what the voice would say it’s the emotions that go with it”.

62 The account given by the accused to Dr Westmore of the content of his thinking at the time of the killing was consistent with the things he told Dr Lucas.

63 Dr Westmore asked the accused whether he considered that he was suffering from a mental illness to which the accused replied, “No way mate”. When Dr Westmore asked how he explained the experiences that he was reporting the accused responded, “Electromagnetic fields, microwave technology, government classified research, they’re doing it all the time”.

64 Dr Westmore noted that the accused had very extensive paranoid thought content. When given the opportunity to speak in an unstructured way the accused was expansive describing complex beliefs that were likely to be of the paranoid delusional type. Dr Westmore considered that the accused probably experienced auditory hallucinations.

65 Dr Westmore considered that it was probable that the accused was acutely mentally ill at the time he killed the deceased.

66 Dr Westmore shared Dr Lucas’ opinion that the accused’s presentation and responses during his video recorded interview were not inconsistent with the diagnosis of acute mental illness. Dr Westmore considered that the accused had demonstrated an ability to contain and control expression of his psychotic beliefs during his interview with him. It was when Dr Westmore let the accused talk in an unstructured way that a wide range of complex beliefs of a delusional type emerged.

67 Dr Westmore, too, considered that the observations of the accused made by Senior Constable Barlow on the evening of 29 March 2002 were supportive of his diagnosis of acute mental illness.

68 In his report of 25 August 2003 Dr Westmore said this:

“He would therefore be eligible for a mental illness defence on the basis that he was at the relevant time suffering from an acute psychotic illness which would have deprived him of his capacities to know that what he did was wrong.
I would note that this case is very complex and assessing him is difficult because of the strong anti social qualities he has. It is a potential problem differentiating his actions arising from his personality disturbance compared with his actions which might arise solely from his mental illness or from actions which might arise from a combination of those factors.”

69 In Dr Westmore’s opinion the accused’s psychotic illness was such as to have deprived him of the capacity to know that his acts in killing the deceased were wrong.

70 Professor David Greenberg is an academic and a practising consultant forensic psychiatrist. He has seen the accused on a number of occasions. He was first asked to prepare a report concerning the accused in July 2002. This related to another matter. He was later requested by the Crown Prosecutor to prepare an addendum to that report for use by the Crown at the hearing in September 2003 of the issue of the accused’s fitness to plead.

71 As at July 2002 when Professor Greenberg interviewed the accused he considered that he was suffering from paranoid schizophrenia. The accused was still quite psychotic at that time. In his supplementary report of 7 September 2002 Professor Greenberg observed:

“Although the writer did not assess Mr Simpson’s mental state at the time period surrounding the alleged offence, the writer is of the opinion that Mr Simpson was highly likely to be suffering from a mental illness during the time period surrounding the alleged offence.”

Professor Greenberg adhered to this opinion at the trial. He said this:

“I’m of the opinion that it is highly likely he was suffering from a mental illness at that time of the offence and this his – the quality and the nature of his act was severely influenced by his delusional, paranoid delusional beliefs and psychotic state where he had difficulty appreciating the wrongfulness of his actions, but also controlling his actions, given that he at the time, I’m of the opinion, was in a state of fear and paranoia where he believed he was defending himself.”

72 The ingredients of the crime of murder that the Crown must prove are: (i) that it was the act or acts of the accused that caused the death of the deceased; and (ii) that at the time he did that act, or those acts, it was his intention thereby to kill or to do grievous bodily harm.

73 The burden of proof of each of the ingredients of the offence is upon the Crown. The standard of proof is beyond reasonable doubt.

74 During the course of the trial there was evidence that the accused is a person who has been violent in the past within the prison setting and in the community. This evidence was relevant to the defence of mental illness that is raised by the accused. It is evidence that bears on the question of the accused’s mental state in the period leading up to and shortly after the death of the deceased. This evidence was not led to establish that the accused has a propensity to act violently and is therefore likely to have committed the offence with which he is charged. I did not rely upon it in that way.

75 In the course of his evidence the accused expressed the belief that his attack upon the deceased had not been of such severity as to have caused the death of the deceased.

76 The accused was the only person in the cell with Mr Parfitt in the period between 6:08 pm and 6:24 pm on 30 March 2002. The two were locked in the cell together. He gave a detailed account of a sustained assault on the deceased in the course of his interview with Detective Senior Constable McGuiness. This account appears to be consistent with the post mortem report of the deceased’s injuries. The accused had blood on his body and, in particular, a great deal of blood on his shoes when the prison officers entered the cell at a time when the deceased was dead or in extremis.

77 I am satisfied beyond reasonable doubt that it was the acts of the accused in punching and kicking the deceased that caused the death of the deceased. The nature and extent of the injuries to the deceased establish that the attack was a sustained one of considerable ferocity. I am satisfied beyond reasonable doubt that at the time of his assault upon the deceased it was the accused’s intention to kill him.

78 I come now to a consideration of whether the accused has succeeded in establishing that at the time of the killing he was mentally ill such that he is not criminally responsible for his acts. The accused bears the onus of proof with respect to the defence of mental illness. The standard of proof is upon the balance of probabilities.

79 The defence of mental illness is concerned with the accused’s mental state at the time the offence was committed. In determining this question it is relevant to have regard to the accused’s mental history before the killing and after it.

80 It is for the accused to establish that at the time of the assault on the deceased he was labouring under such a defect of reason, from a disease of the mind, that he did not know the quality and the nature of his acts or, if he did know, that he did not know that what he was doing was wrong. A person does not know that his acts are wrong when he does not know that what he is doing is wrong by the standards of right and wrong that are adopted by reasonable members of the community or when he is disabled from reasoning with a moderate degree of sense and composure as to the moral quality of his conduct.

81 The expert evidence in this case all one-way. Each of the three forensic psychiatrists who gave evidence at the trial was of the opinion that it is likely that at the time he killed the deceased the accused was suffering from an acute psychotic mental illness. There is nothing to cast doubt upon this body of expert opinion. There is a deal of other evidence that points to an acceptance of it.

82 I am satisfied upon the balance of probabilities that at the time of doing the acts that caused the death of the deceased the accused was suffering from a disease of the mind, namely, paranoid schizophrenia. I am satisfied that this condition prevented him from reasoning with a moderate degree of sense and composure that what he was doing in repeatedly striking the deceased about the head with his hands and feet was wrong.

83 I turn now to a consideration of s 37 of the Mental Health (Criminal Procedure) Act 1990. This section provides that if on the trial of a person charged with an offence a question is raised as to whether or not at the time of the commission of the offence he or she was mentally ill, the court must explain to the jury the findings which may be open on the trial. The court is to explain the legal and practical consequences of those findings, and must include in its explanation a reference to the existence and composition of the Mental Health Tribunal as constituted under the provisions of the Mental Health Act 1990. The court must refer to the relevant functions of the Mental Health Tribunal with respect to forensic patients within the meaning of the Act, including the requirements of the Act that the Tribunal may make a recommendation for the release of a person detained in accordance with s 39 only if it is satisfied that the safety of the person or of any member of the public will not be seriously endangered by the person’s release.

84 I remind myself of the matters to which s 37 directs attention.

85 For these reasons I propose to return a special verdict pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990.

86 Scott Ashley Simpson I find that you are not guilty of the murder of Andrew Mark Parfitt by reason of mental illness.

87 I order that you are to be detained in strict custody in a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 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: 04/14/2004