Regina v Slater

[2008] NSWSC 591

CITATION:	REGINA v SLATER [2008] NSWSC 591
HEARING DATE(S):	5 & 6 June 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	6 June 2008
DECISION:	Not guilty by virtue of mental illness. Mr Slater be detained in such place and in such manner as is provided by law until he is fit to be released.
CATCHWORDS:	Criminal law - mental illness defence - appropriate orders.
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 ss38, 39
CATEGORY:	Sentence
PARTIES:	Regina v Shaun Troy SLATER
FILE NUMBER(S):	SC 2008/00001
COUNSEL:	Mr T Hoyle SC (Crown) Mr J Doris (Mr Slater)
SOLICITORS:	S Kavanagh (Crown) Neil J O'Connor & Associates (Mr Slater)

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

ADAMS J

FRIDAY 6 JUNE 2008

2008/01 - Regina v Shaun Troy SLATER

SENTENCE

1 HIS HONOUR: The accused is charged with the murder of Rodney Graham Smith on 23 March 2007. To that charge he has pleaded not guilty. There is no doubt, and the accused has from the beginning admitted, that he killed Mr Smith intending to do so. The question is whether he is not guilty by virtue of his mental illness.

2 Psychiatric evidence has been led in the form of reports by both the Crown and the defence. The doctors, all of whom are experienced forensic psychiatrists, well-aware of the elements of the defence, have concluded with certainty that at the time he killed Mr Smith the accused was mentally ill in the sense that he was unable to understand that his actions were wrong. It is necessary to refer briefly to the facts and to the medical opinions but the question is not susceptible of doubt: the facts tragically reflect that Mr Smith was killed when and because the accused was gravely mentally disturbed, suffering from delusions including paranoia and a psychotic state which completely prevented him from having any rational understanding of the moral quality of what he was doing. This does not mean that he was altogether devoid of reason; for example, he was aware that his acts would have the effect of killing Mr Smith; he was aware after Mr Smith's death that he should contact the police; he was aware that it would be distressing for Mr Smith's young son, who was at school at the time, to come home and see his father's body. But the awareness of these things existed in what in lay terms I might say was a mad world created by his illness and linked only tenuously to the reality of what he had done.

3 The killing was discovered by police following a telephone call at 9.15am on 23 March 2007 made by the accused from the deceased's home. That conversation is in the following terms:

“Accused: 'I have just killed someone at 51 King Creek Road, Wauchope. I will wait for the police.'

Bryant: 'What is your name?'

Accused: 'Shaun Slater.'

Bryant: 'What's happened?'

Accused: 'A knife has gone into his heart and he is not breathing.'

Bryant: 'I will send an ambulance. Who is he?'

Accused: 'Rod Smith.'

Bryant: 'Shaun, what's your phone number?'

Accused: '65861861.'

Bryant: 'Is anyone else there?'

Accused: 'No, I want you here before his kid comes home from school and sees him.'

Bryant: 'How did this happen?'

Accused: 'Just get here. I will wait.'"

4 Police and ambulances were immediately sent to the house. When they arrived the accused was on the verandah drinking tea. He said later that he wanted to show the police that he did not wish to be violent towards them.

5 In the ensuing interview with police, despite the apparent rationality of the telephone conversation, it very quickly emerged that the accused was still floridly psychotic. Indeed, his condition was so bad that there was little significant improvement even after he was incarcerated and given psychiatric help for some weeks.

6 The accused had a history of mental illness which appeared to be controlled by medication. About eight months before the killing he ceased to take it, saying that he felt just the same when he took the medication as when he did not and that the medication caused him to lose his clarity of thinking. By clarity he meant that he was unable to hear clearly the voices of the three persons, whom he believed to be Buddhist angels who habitually spoke to him, though they were invisible to others, and he was also unable to think clearly about understanding his important status in the universe in the fight for good.

7 The accused came to believe that Mr Smith was drugging him and he told the police that he believed that he had put the drug into his coffee. I take up what can only be loosely described as a narrative:

“And then just the other day I came in, I got, got half a bottle of coke out of the frig and not so bad because he must have been running out of it [the drug] or something because it didn't affect me in the same way and that was the only two occasions that happened and I thought well, what do you do if you are laying in bed and you are drugged and why am I even drugged? Because I don't take them any more and if you test my blood supply you will probably see that it's not really in me any more, that stuff, because I haven't taken it for eight or nine months and you, you may even be able to test the coffee that I - I tipped most of it out and I just kept using it but you may have, vapours of it may have gone through into the coffee in the frig. I don't know. I am not a forensic scientist.

Q. Mr Slater did you kill Rod Smith this morning?
A. Yes.

Q. How did you kill him?
A. Knife.

Q. Tell me what you did?
A. I walked up to him. I said 'Why didn't you speak to me about my father calling me, you know?', and he starts playing all these games with me and then I just went 'That's enough' and then we had a tussle on the floor and I tried to, well I wasn't really trying to kill him, I just, just got him around the throat and just pulled on him hard. I thought is that scaring you, you bastard, and, and anyway he is like, he wasn't begging for his life or anything and he was sort of quite lucid in many ways and because I was reasonably calm, I have never done this before, but but then calm. I mean how do you explain what calm is and, and yeah, and then I left him and then he played dead, like as a joke, you know, and then he is like totally motionless, so I walk, walked away and, and I walked away from him and I, yeah, that's right, I was brushing my teeth, so I got rid of the stuff out of me mouth and then I came back and he was starting to, he just did two little nods with his head to see if I was - I went, oh yeah, you done two little nods of your head, have you, and and so then I strangled him around the throat again. You know I thought well, that doesn't make him die, bastard, so then I went and got the kitchen knife because he, his main joke was stabbing Shaun with it every day, you know? That was his - he didn't say it but whenever he used it he would seductively suggest as he, you know, did work with the knife in the presence of another person and so that was the knife I used on him but you know I walked, I went and sat down, I had a chat with him about, about what I had noticed about how he used to look at his son because his son used to piss him off. He used to test him a fair bit. I mean this is all, I mean someone could say this is hearsay, but as far as I am concerned it's not hearsay at all, because if a man plans you know taking his kid and chucking him on a tree and then laying the bike there and going well, fuck, he has gone sort of thing, because his father had a shoot out years ago, right, and he had a big head about these guys ripping off his door, so the kid grew up you know - they were Christian kind, full contact boys and so they also had this fascination about being a man and not being afraid of death and facing all this stuff and all that and probably not being afraid to enact all these little different things and and, so yeah, that was one of his little things about his son and he probably would never have done it, I don't think he would've ever done it but I didn't, I actually didn't like the way he looked at his son. I mean who would?

Q. Tell me Mr Slater about how you stabbed Mr Smith this morning?
A. Well I stabbed him in the leg because he was being a cheeky prick. I went well, look at that, and I was looking at his mind and listening to him and he was talking, you know, about this and that and I'm looking at the darkness in his eyes and I'm saying I'm not really hearing you loving me. I guess I was judging his character in an extreme circumstance. I don't know how to be much more extreme than that and I found him quite lacking as a person in that conversation I had with him.”

There is much else along the same lines. I refer to one other small passage:


[After the second choking] "We just started talking. I started discussing a few things that I really didn't really want to talk about.

Q. Okay, did he say anything, like are you able to tell me what he said? You were talking about these things - was Mr Smith talking as well? Well what, can you tell me what he was saying?
A. He said the band aid statement and...he said a couple of other things. I am not quite; he, he started talking. I remember saying 'You probably think I'm listening to you but I am not' like, like it's, I am using your time up with me talking - that was his joke and, and I thought well I've only got time.

Q. When you stabbed Mr Smith in the leg did he react like, like did he call out, did he scream out or--
A. He didn't. He didn't become hysterical or he didn't - he looked callous and the darkness in his eyes, I mentioned that. I said 'Oh you have got the darkness in your eyes looking at me, haven't you?', and I said 'I am not hearing the love speaking...'."

8 Without going into detail, it is evident that Mr Smith befriended the accused and that the accused lived with him for some time as a boarder paying rent it may be, but I think it is obvious that Mr Smith acted largely out of charity. That adds an additional layer of sadness to the circumstances here.

9 I have mentioned that the accused had been mentally ill for some years and that his illness had largely been controlled by medication. In the few months before this event it became increasingly obvious to those who had communication with the accused that he was becoming more and more detached from reality, and fears were held both by his father and a female acquaintance for his increasingly unsettled mental state. It appears that his father in the weeks before this event sought to get help for him from the medical resources available for the treatment of mentally ill people but his pleas were ignored. Had the situation of the accused been earlier understood and his medication been resumed this terrible thing may well not have happened.

10 The autopsy showed that Mr Smith died from the combined effect of the neck compression and a stab wound to the chest. These findings confirmed the accuracy of the admissions made by the accused to police as to how he had killed Mr Smith.

11 I have said that the doctors are agreed as to the state of mental ill health of the accused at the time of the killing. It is convenient for present purposes to cite the opinion of Dr Westmore, given after he examined the accused on 22 February 2008. This account is consistent with the opinions of the other doctors. After a brief account of the upbringing of the accused, which is unremarkable, Dr Westmore said as follows:

“Mr Slater became mentally ill about approximately seven years ago. The treating psychiatrist, Dr Parsonage, diagnosed him as suffering an acute psychosis in 2002 and 2003 and he also had a history of depression. He had been treated with an antipsychotic and an antidepressant medication but about eight months prior to the matters now before the court he apparently stopped taking his medication.
The history is consistent with his mental health declining. The deceased was concerned about his mental health and his probable non-compliance with medication. The deceased asked him to leave the home which they shared. Mr Slater described delusional beliefs he had towards the deceased. He thought he was evil and he thought the deceased was placing a substance into his coffee, a white powder. He also believed the deceased had stolen money from him but he indicated that that money was rent Mr Slater owed the deceased.
Mr Slater indicated his actions towards the deceased were 'a spur of the moment thing'. They had argued earlier that day about Mr Slater's concerns that the deceased was not sending messages to Mr Slater from Mr Slater's father.
The justice health file confirmed that Mr Slater was mentally ill at the time he was incarcerated. He has fortunately responded to medication and acute symptoms of an auditory perceptual type and ideas of reference have now ceased [emphasis added]. He also has increasing insight into the wrongness of his actions when he killed the deceased [emphasis added].
Mr Slater has a mental illness defence available to him. He was suffering from a disease of the mind (acute psychosis of a schizophrenic type) which would have totally deprived him of his capacity to know that he ought not to act as he did towards the deceased. He had a defect of reasoning which arose from his mental illness.
As noted by Dr Nielssen he would by default also be eligible for the defence of substantial impairment but the correct defence in this case is, in my view, that of a mental illness because that is what he was suffering from at the time of the homicide.”

12 The defence of mental illness provided for in s38 of the Mental Health (Criminal Procedure) Act 1990 is a reflection of the common law which says, with some considerable good sense, as I think all thinking people acknowledge, that it is one thing when a crime is committed because a person is bad and another when it is committed because he or she is ill. Where persons do an act when they are suffering from a disease of the mind that causes them not to know the nature and quality of the act or that it is wrong, then they do not commit a crime. Here the tragic incidence of a schizophrenia-like psychosis, suffered by the accused for many years, which came about because of no fault of his and which has warped his life and his relationships, his abilities to communicate in a normal way with other people, and which led him increasingly to live in the mad universe of his own mind, a universe in which it became imperative for him to kill the deceased, demonstrates to my mind not only that the legal result from the defence of mental illness, namely, a verdict of not guilty by reason of mental illness is inevitable but also that it is just..

13 Of course, I understand this can be no comfort whatever to the parents, the family and friends of the deceased who was killed because he did a kind and generous thing by the man towards whom he had been kind and generous. Nevertheless, it is perhaps something to know that he was not killed out of an act of wickedness but out of an act of madness.

14 Accordingly, I find the accused not guilty by virtue of mental illness.

15 I now turn to the appropriate order. Where a verdict of not guilty by virtue of mental illness is returned, s 39 of the Mental Health (Criminal Procedure) Act 1990 provides –

“39 Effect of finding and declaration of mental illness
(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may 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 or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.
(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.
(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.”

16 It will be seen that an order under s 39(2) can only be made where the Court "is satisfied on the balance of probabilities that the safety of the person or any member of the public will not be seriously endangered by the person's release".

17 I think it fair to say that if Mr Slater remains in his present mental state he probably would be neither a danger to anyone else nor a danger to himself but the question of the stability of his present mental state is one that needs very careful attention.

18 When Mr Slater was seen by Dr Delaforce in March 2008, just over a year after the crime, he made some troubling comments indicating that at some significant level of his consciousness he still was deluded as to the reasons that led him to kill Mr Smith, although he did have by that time some insight into the wrongness of what he had done and indicated some remorse. I think that there were troubling signs of a conflict in this regard. Dr Delaforce made what is an obvious observation to the following effect:

“His much improved mental health in about the past year results in his increasing insight into his schizophrenic basis for his defective thinking and related actions that included the death of Mr Smith.
He must permanently have his mental health monitored and permanently take psychiatric medication to reduce the risk of a relapse to positive symptoms of schizophrenia and therefore the risk of a serious act of violence to another.”

19 I think it is material to take note, and this is true of all the doctors, of their view that his understanding of what happened is "increasing". I think there are matters given in the history to the doctors and particularly Dr Delaforce, who pressed him somewhat more I think than the others in this respect, that indicate that Mr Slater's mind is still not altogether clear about why he did what he did and whether what he did was wrong. It is plain that he was very ill indeed at the time of the killing but I think that, to a degree that is concerning, he has made far from a complete recovery to sanity.

20 It seems to me that it is necessary is that Mr Slater must be continuously reviewed in the way provided by the legislation and, of course if he should reach the stage of being safe he must be released. He is not a criminal, although he has done a terrible thing. It is a matter of concern, I think, to all thinking people that we deal with people like Mr Slater as though they were criminals and we put them in prisons with criminals who commit or who have committed terrible things whilst completely sane. That this should happen in a civilised community is a disgrace.

21 As regrettable as it is, it is simply not safe to release Mr Slater at this time. It is obvious therefore that it would not be appropriate for me to make an order for his release under s 39(2) and the appropriate order is that Mr Slater be detained in such place and in such manner as is provided by law until he is fit to be released.

22 For what it is worth the Court extends its condolences to the family and friends of the deceased. It must be just a terrible nightmare for you.

**********