Regina v Shew

[2002] NSWSC 724

CITATION:	REGINA v. SHEW [2002] NSWSC 724
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 70043 of 2002
HEARING DATE(S):	Thursday 15 August 2002
JUDGMENT DATE:	15 August 2002
PARTIES :	REGINA v. SHEW, David Michael
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: P. Conlon App: D.J. Humphreys (Sol.)
SOLICITORS:	Crown: S.E. O'Connor App: Legal Aid Commission
CATCHWORDS:	Criminal law - murder - judge only trial - mental illness defence.
LEGISLATION CITED:	Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	M'Naghten (1843) 8 ER 718 Porter (1936) 55 CLR 182
DECISION:	As to each charge on the indictment, I find the accused not guilty by reason of mental illness. I order that he be detained at the Long Bay Prison Hospital or such other place as may, from time to time, be prescribed by the process of law, until released by due process of law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

THURSDAY 15 AUGUST 2002

No. 70043 of 2002

REGINA v. DAVID MICHAEL SHEW

JUDGMENT
(Trial by judge without a jury)

1 HIS HONOUR: From time to time cases such as this come before this court. They are immensely tragic, not only for the family and the loved ones of those who have been deprived of the society of their relatives but immensely tragic also for an accused who suffers from some such illness as deprives that person, in law, of the understanding we regard in a civilized society as necessary before a person becomes amenable to punishment for their conduct.

2 On a murder trial such as this, it is necessary to relive what happened in these appallingly tragic circumstances to the deceased and to relive the appalling conduct of the accused when he killed them. It is important to recognize that the court is not insensitive to the tragedy that has affected those that have been left and which has affected and will affect the accused for the rest of his life, as that tragedy will affect the members of the family and the loved ones of the deceased for the rest of theirs.

3 I commence these reasons with those words so that it will be understood that the recognition by both the prosecution and the defence that the accused did perform the acts causing the deaths and did have, at the time of the acts causing death, that mental condition and did perform those acts with that mental condition such as would otherwise make him liable for the offence of murder but for the fact also recognised, after proper investigation by the Crown, that although the accused had that mental condition and did those acts he was at the time suffering from mental illness.

4 This case, it appears to me, having seen the extent of the investigation of whether the accused was at the time affected by mental illness, has been conducted by those police investigating those medical practitioners and those involved as legal practitioners, with a considerable degree of skill and sensitivity. It has been presented to me in a way which enables my task to be performed, hopefully, in a way which shows the court's compassion for all concerned.

5 The accused stands charged with three counts of murder. I am required to try those matters without a jury being satisfied of the necessary formal matters required by the Criminal Procedure Act 1986.

6 On the evidence, I am satisfied beyond reasonable doubt that at the time of the acts causing the deaths charged, the accused had the intention to kill. I am satisfied, in accordance with the agreement that has been filed, that the accused caused the deaths charged in each count. The material relating to mental illness I shall refer to in a moment.

7 There has been provided to me in evidence a summary of facts. That summary of facts discloses that from the accused's middle teenage years he suffered from schizophrenia and had, from time to time, been treated for it and admitted to hospital because of it. I am satisfied that his parents were well aware of his suffering from the illness. Indeed, on 1 November 2001 his mother told his sister of actions by the accused which were plainly consistent with the symptomatology of the disease. On 2 November other actions were seen by members of the general community to have been perpetrated by the accused which plainly showed, with hindsight one can say, that the disease was affecting him and he was showing symptoms of it. On Saturday 3 November his threat to a child and his statement to Ms. Hill concerning his parents indicated clearly enough that he was suffering from a resumption of his mental illness. The message he left for his sister on the Monday was seen by her to be strange in nature and similarly, after the deaths the messages left for Mr. Newman and Mr. Carr concerning what he said had happened to the parents indicated adequately enough that he was not reasoning with rationality.

8 His subsequent actions indicated that he had some, but limited, insight into what he had done. What he had done was to kill his parents and his brother. At the police station where he referred to his being "Inca" from the Amazon or Colombia and in his other responses to the police, he showed a sufficiently bizarre pattern of behaviour as to enable even a lay identification of his being mentally ill.

9 Following his detention in custody, an extensive medical history came to light confirming that the accused had suffered from a treatment-resistant variant of schizophrenia for many years. Dr. Westmore, who examined the accused on behalf of the Crown, concluded:-

"There is evidence on the history he provides and supported by documents in the brief, that Mr. Shew was acutely mentally ill at the time his parents and brother died. He appears to have had command hallucinations directing him to kill his parents and it is possible that he had delusional beliefs regarding family members.
He suffers from the illness schizophrenia. This is a disease of the mind which would have totally deprived him of his knowledge and understanding that he should not commit the act. He qualifies, therefore, for the defence of mental illness to the charges of murder."

10 That doctor went on to refer to the fact that some insight and understanding had later been gained by the accused into the nature of his illness, he having previously had poor or little insight into that illness and having failed, for that reason, to comply with treatment that had been offered to him. The medical reports and the other material in the brief seem to indicate that he was unable, because he was unwilling, to comply with such regimens of treatment as might have been available. He was unwilling, no doubt, because of the very mental illness it was sought to treat.

11 Dr. Allnutt concluded also that his capacity to think rationally about his behaviour and to contemplate its wrongfulness was so substantively impaired by delusions and auditory hallucinations that he felt irrationally justified to act in the manner that he did. Dr. Allnutt was of the view that, at the time of the acts causing death, the accused did understand the nature and quality of the acts but did not understand that the acts were wrong.

12 Having referred to various factors as operating upon the accused, he said:-

"All these factors would have had the compounding effect of impairing his ability to judge his thoughts and test their reality in relation to his situation or in relation to how others may act in similar circumstances. He believed, nihilistically, that he would be 'a zombie' and 'nothing' if he did not act that night. Under these circumstances he was compelled to act as the voice intended and his beliefs justified this. It is unlikely that he would have been able to rationally contemplate the wrongfulness of his actions with any degree of sense or composure."

13 Dr. Nielssen concluded that the accused:-

"Has a severe and disabling mental illness characterised by perceptual disturbances in the form of auditory hallucinations, of voices, delusional beliefs arising from hallucinations, disorganized and illogical thinking and abnormal emotional responses."

14 He concluded with an opinion as to the existence of those matters which constitute the defence of mental illness in law:-

"I believe Mr. Shew has the defence of mental illness open to him, as he has a disease of the brain, chronic treatment-resistant schizophrenia, that produces a pattern of abnormality of mind that is recognized in law to be a disease of the mind. His mental illness produced a defect of reason, that his family was not his real family and that he should act on auditory hallucinations telling him to kill his family. The severe disorder of thought form and mood disturbance at the time of the offence deprived him of the understanding that his actions were wrong, and also deprived him of the ability to reason with composure about his actions, or to exercise self-control."

15 It is my understanding of all of the opinions of all three of the psychiatrists, that although they express their conclusion in different language, each of them is of the view that at the time of the acts causing each of the three deaths, the accused was labouring under such a defect of reason from disease of the mind as not to know either the nature and quality of the acts he was doing or, if he did know it, that he did not know that what he was doing was wrong. And as to the last, such that he was unable to reason concerning the wrongfulness of his act with any real degree of sense or composure (see The Queen v. M'Naghten (1843) 8 ER 718 and The Queen v. Porter (1936) 55 CLR 182 and in particular at 188).

16 The evidence and the opinions of the doctors in respect of that evidence all speaks with one voice when analysed. That is, that the defence which is provided for by s.38 of the Mental Health (Criminal Procedure) Act 1990 applies in this case. That section provides that if at the time of their actions a person was mentally ill so as not to be responsible according to law in the sense referred to in M'Naghten (supra) and Porter (supra), for his actions, then the special verdict that the accused person is not guilty by reason of mental illness, must be passed.

17 The effect of that verdict, by reason of s.39 of that Act, is that the court must order that the person be detained in such place and in such manner as the court thinks fit, until released by due process of law. It is necessary, when considering whether the special verdict should be returned, for me to bear in mind and indeed, to set out in these reasons, the matters which are the legal and practical consequences of the findings which are open in the trial.

18 If an order is made that the accused be detained in strict custody, the accused comes under the supervision of the Mental Health Review Tribunal. That body comprises a legally qualified President or Deputy President and two other members, one of whom must be a psychiatrist and the other of whom must be a person of suitable qualifications and experience to so serve. Within 14 days after the verdict the Tribunal commences a review of the accused's case. That review can take more than 14 days but at the conclusion of the review, a recommendation as to detention or release of the accused will be made to the Minister for Health. That recommendation could be for action to be taken that is unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. It is only if the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by the accused that it could make a recommendation to the effect that the accused be released. If it makes a recommendation, that could be considered by the Department of Health and then, if necessary, by the Governor. It is only if the Governor were advised that a release was appropriate that the accused might be released into the community.

19 The Mental Health Review Tribunal can determine and must at least once every six months for the remainder of the time that the accused person is detained, review his case. In each case it could make an appropriate recommendation to the Minister for Health for further detention, care and treatment or for possible release. Again, the accused would only be released if there was advice from the Department to the Governor to that effect, upon the basis that the tribunal had concluded there was no danger to himself or others. If he were released, it might be on conditions to ensure that there are appropriate measures taken to protect him from his illness and to protect others from the consequences of it. The only manner in which a person ceases to be a forensic patient detained in this fashion is when released in accordance with the procedure to which I have referred.

20 I have regard to those consequences and I have regard to the statement that the accused has made today, as well as the evidence which has been presented to me, by consent, as a common body of evidence and which has been presented in that fashion simply because the evidence is all to one point.

21 I conclude that I must legally find the special verdict that, at the time of the acts constituting the offence charged, the accused was suffering from mental illness so as not to be responsible for his actions and I so find that verdict. I therefore must order, pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 to which I have referred, that the accused be detained in a place of strict custody until released by due process of law. In this case the appropriate place would be Long Bay Prison Hospital.

22 I therefore find the accused, as to each of the charges in the indictment, not guilty by reason of mental illness. I order that he be detained at the Long Bay Prison Hospital or such other place as may, from time to time, be prescribed by the processes of law, until released by due process of law.

**********

Last Modified: 08/26/2002