Regina v Stuart Richard Snelgar

[2002] NSWSC 1094

CITATION:	Regina v Stuart Richard Snelgar [2002] NSWSC 1094
FILE NUMBER(S):	SC 70051/02
HEARING DATE(S):	18/11/02
JUDGMENT DATE:	18 November 2002
PARTIES :	Regina Stuart Richard Snelgar
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr Peter Dare SC (Crown) Mr Joseph Busuttil (Accused)
SOLICITORS:	SE O'Connor
LEGISLATION CITED:	Criminal Procedures Act 1986 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Mizzi v The Queen (1905-6) 105 CLR 659 R v Porter (1933) 55 CLR 182
DECISION:	Accused is to be detained in the Psychiatric Ward of the hospital of Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

18 November 2002

70051/02 REGINA v Stuart Richard SNELGAR

JUDGMENT

1 BELL J: The accused was arraigned before me this morning on an indictment charging him with the murder of his mother Barbara Louise Snelgar. To that indictment he pleaded that he was not guilty by reason of mental illness.

2 An election for trial before judge alone signed pursuant to s 16 (1) of the Criminal Procedures Act 1986 is in evidence. The Director of Public Prosecutions consented to trial by judge alone. I was satisfied that before making his election the accused sought and received advice from his Barrister, Mr Busuttil, as to the election. Medical evidence satisfied me that at the time of making the election, the accused had the capacity to understand the import of it. Accordingly, the trial proceeded before me sitting as a judge alone pursuant to the provisions of the Criminal Procedures Act.

3 The accused is said to have struck his mother about the head with a tomahawk on the morning of 9 November 2001. She suffered severe injuries as the result of that assault and died from the same on 6 March 2002.

4 There has been no issue but that I would find that it was the act of the accused that caused the death of the deceased and that at the time of doing that act he possessed the requisite intention to make his act murder, namely an intention either to kill or to do grievous bodily harm to the deceased. The sole issue ventilated before me has related to the accused's mental state at the time he did the act causing death.

5 It is the accused's contention that he was mentally ill at the time of the killing. That contention has not been put in issue by the Crown. The trial proceeded with the tender by consent of a number of statements and medical reports. Neither party required the maker of any statement or the author of any expert report for cross-examination.

6 The background is usefully set out in a number of documents; the statement of the accused’s brother Bruce Robert Snelgar made on 12 November 2001 and in the reports of Dr Neilssen and Dr Westmore.

7 The accused was born on 2 June 1952, he was aged 49 years at the date of the offence. He was born in Newcastle and grew up in the Toronto region. He performed academically well at school and was the dux of his class. Following the completion of the Higher School Certificate he attended the Australian National University undertaking a Bachelor of Science degree. He failed the third year of that course. Thereafter he undertook a period of teacher training prior to joining the Royal Australian Navy where he attained the rank of Lieutenant. He was medically discharged in 1980. A discharge report (apparently prepared by a naval medical officer) noted that the accused was suffering from endogenous depression and a schizoid personality. It was considered that this disability was not related to his naval service. He was discharged as permanently unfit. Of significance are the general remarks recorded by the author of the report:

“The basic condition is of schizoid personality, there is concern this may worsen to a schizophrenia. The personality trait has been associated with an endogenous depression immediately prior to discharge exacerbated by endogenous factors in relation to administrative aspects of the officer's discharge.”

8 In the years between 1983 and 1986 the accused was employed both as a teacher and, for a time, as a computer salesman.

9 He was diagnosed as suffering from the condition known as Chronic Fatigue Syndrome in late 1987 and he has not been in employment since that date.

10 Bruce Snelgar, in a detailed statement made to the police described the accused as having been a devoted son to his mother, particularly following the death of their father in 1989.

11 Mr Snelgar noted a deterioration in his brother's mental condition in the six weeks leading up to November 2001. In regular telephone discussions with the deceased he was informed that the accused believed that he was being spied upon, that people were listening to his telephone calls and that there were cameras hidden in the ceiling of the family home. On one occasion the deceased told him that the accused claimed to have smelt fuel oil and was concerned that someone was going to burn the house down.

12 A statement was obtained from Charlotte May Munro, a neighbour of the family. She had known the deceased and the accused for some 44 years. She confirmed the devoted nature of the relationship between the two. Around August 2001 Ms Munro observed changes in the accused's behaviour. In particular, noted that he had become obsessive about security precautions. She also observed a dramatic deterioration in his personal appearance. She reported other instances of unusual behaviour including an occasion when the accused sat in the rain under the clothes line for a prolonged period. At other times Ms Munro saw him late at night carrying a torch and checking underneath houses.

13 On the morning of the 8 November 2001 the deceased spoke with Ms Munro. She asked, "Did Stuart ask you whether you were wired for sound" to which she replied, "Stuart did ask me but I told him no I wasn't". The deceased said, "Stuart is having a really bad day".

14 At 10.30am on 9 November 2001 Bruce Snelgar received a telephone call from the accused. The accused said to him, "I've just hit mum several times with a tomahawk". Mr Snelgar asked, "Where is she now?" and the accused replied, "On her bed". Mr Snelgar instructed the accused to call an ambulance. The accused responded:

“No, the injuries are too severe. Oh, I love you all, I've been wrong, she was right all along. I've ruined the car motor by putting Teflon in it. Oh, oh, oh, I've ruined everything. All those lovely things Nana collected over the years. Gone! I couldn't stop them getting under the house, they come from two doors along and they've been trying to damage the piers. I don't know why they tried to damage the piers.”

15 Mr Snelgar instructed the accused to seek assistance from a neighbour, Ms Carole Armstrong. He then telephoned Ms Armstrong who said that she would contact with the Ambulance Service. At the time of this telephone discussion the accused was present with Ms Armstrong in her home.

16 Ms Armstrong observed that she had known the deceased for 28 years. She knew the accused but not well. It was her opinion that the accused was a person who was paranoid about security. When he attended at her home at about 10.45am on the morning of 9 November 2001, he was apparently suffering from stress and he was unable to communicate. She observed a smudge, that appeared to be blood, on one of his arms.

17 Sergeant Kenneth Bulgar was one of the first police officers to attend the scene. He noted the accused appeared to be disoriented and was walking very slowly.

18 The accused showed Sergeant Bulger to a bedroom where the deceased was observed lying on her back on her bed with blood around her. It was apparent that she was suffering severe injuries to the back of her head although she was still exhibiting signs of life. A tomahawk was lying on the bed next to her.

19 Sergeant Bulger saw that the accused had small quantities of blood on his hands and what appeared to be dried blood stains on his upper arms near his shirt sleeves. It appeared to Sergeant Bulger that the accused had washed his arms prior to the arrival of police.

20 The deceased was conveyed to the John Hunter Hospital where she was observed by the Surgical Registrar, Dr Thiruchelvam. A CT scan revealed a right parietal compound fracture with an intracerebral fragment. The skull fracture was debrided and the scalp injury closed. She was given intravenous antibiotics and transferred to the Intensive Care Unit. Thereafter she underwent further surgical procedures and was transferred to a nursing home known as Allandale on 2 January 2002. She died on 6 March 2002.

21 A post mortem examination was carried out by Dr Lyons on 8 March 2002. Dr Lyons’ report forms part of Ex. B and details the scars observed to the deceased's skull. Dr Lyons reported that the cause of death was head injury. Examination of the deceased’s brain showed the presence of a very extensive cerebral infarct throughout the right hemisphere. Post mortem histology confirmed the features of a well established area of infarction. Infarction refers to the death of tissue due to a lack of blood or oxygen.

22 Detective Senior Constable Garth Christian attended the scene of the assault at 123 Brighton Avenue, Toronto at about 11am on 9 November 2001. He observed the accused had blood on both his forearms. He noted that the accused appeared vague when spoken to and that he seemed to be in shock.

23 The accused was taken to the Toronto Police Station where he participated in an electronically recorded interview with the police. During the course of that interview his memory of what had occurred was vague. He acknowledged having struck his mother on the head using an axe. When asked whether he intended to kill his mother he responded, "I suppose if one did something like that it must have been". He was not able to indicate how hard he had hit her. Nor was he able to tell the police what his intention had been at the time.

24 The accused was initially charged with attempted murder and with maliciously inflicting grievous bodily harm with intent so to do. Following the death of the deceased, he was charged with murder at the Toronto Local Court on 19 April 2002.

25 The evidence established that at the time of the assault on the deceased the accused was the only other person present at the family home. I have regard to the admissions made during the course of the electronically recorded interview, and to the admissions made in the course of the accused’s telephone conversation with Bruce Snelgar on the morning of 9 November 2001 and to the appearance of blood on his forearms, together with the accused’s later admissions made to Dr Neilssen and Dr Westmore. I make the following findings of fact which I am satisfied are proved beyond reasonable doubt. Barbara Louise Snelgar died as a result of injuries occasioned by being struck about the head with a tomahawk on the morning of 9 November 2001. The accused caused those head injuries by striking the deceased about the head with a tomahawk on more than one occasion. At the time of striking her it was the accused’s intention either to kill or at the least to inflict grievous bodily harm upon her. I am satisfied of this fact by reason of (i) the nature and extent of the wounds suffered by the deceased, (ii) the accused's answer to Q 114 in the interview and (iii) the accused’s admissions to Doctors Neilssen and Westmore. I summarise these as including that at the time of striking his mother the accused believed that he was going to be killed by a representative of the new world order and that his mother would not be able to cope without him.

26 I have been assisted in the conduct of this trial by the thorough and helpful written submissions prepared by the Crown Prosecutor. The onus of establishing mental illness is upon the accused upon the balance of probabilities. My attention has been directed in this respect to Mizzi v The Queen (1905-6) 105 CLR 659 and to a number of other leading authorities touching on the defence of mental illness.

27 I turn now to the evidence of Dr Neilssen and Dr Westmore. Dr Neilssen was retained on behalf of the accused. He first saw the accused on 15 November 2001. In his first report he notes that the accused was obviously acutely mentally ill and looked to require treatment in a psychiatric hospital. He also reported that the accused had been assessed by a trainee psychiatrist at the James Fletcher Hospital, Dr Safranko, who had elicited the full syndrome of schizophreniform psychosis. The accused described auditory hallucinations of voices arising from implants inserted into his head. He reported the belief that people had been coming in under the house over the previous four months. Dr Sarfranko also elicited a complex conspiracy theory involving UFO's, extraterrestrials and a new world order.

28 Among materials available to Dr Neilssen at the date of his first consultation were the notes of Dr Ahmed and Dr Walker, both psychiatrists attached to the Corrections Health Service. Dr Walker confirmed that the accused was concerned that implants had been placed in his forehead causing a buzzing sound and making him more sensitive to other people. The accused was also expressing concerns about a microwave camera. His mental state examination was said to be more consistent with schizophrenia than delirium or dementia. He had been given an injection of an an antipsychotic medication and prescribed an oral antipsychotic.

29 A further report was obtained from Dr Neilssen on the 7 January 2002. On this occasion Dr Neilssen reported that the accused's mental health had improved considerably. The accused reported feeling better as a result of treatment with the antipsychotic medication, Zyprexa, and the mood stabiliser Lithium. On this occasion it appears that Dr Neilssen was able to obtain a more detailed history from the accused. This included the accused's long-standing interest in UFO's which he had been fortunate enough to observe on some 26 occasions. He gave an account that since 1987 he had been concerned by the imposition of a new world order and that recent events had tended to prove his understanding of that phenomenon to be correct. Dr Neilssen noted:

“He said that he believed that because he was part of a small group that knew what was going on, and an 'activist' in the area, he had come to the attention of United States agencies.”

30 The accused said that in the months before the offence he could hear people whom he believed to be intelligence agents underneath the house. They were talking about him and transmitting thoughts to him using microwaves. Whenever he went to investigate they scuttled out before he could reach them, but he found that they had been damaging the foundations of the house. He said that he believed they were using a vacant house located nearby as their headquarters and occasionally he saw flashes coming from inside the house apparently caused by welding.

31 The accused told Dr Neilssen that he loved his mother, and that he had attacked her because he was sure that he was about to be killed. As he said to Dr Neilssen, "I did not want to leave her behind". She had suffered a stroke and was limited in her mobility and, "It seemed to me that she couldn't cope on her own".

32 The accused said that he had intended to commit suicide but that his brother had ordered him not to do anything. He said that he now realised that what he had done was wrong.

33 Dr Neilssen assessed the accused as suffering from a condition of chronic schizophrenia. In his report of 7 January 2002 he expressed the following opinion, which I accept:

“Mr Snelgar has a disabling chronic mental illness which probably began around the time of his medical discharge from the Navy. He reported the onset of concerns about a new world order in 1987, around the time he last worked. In the months before the offence he reported auditory hallucinations of voices, thought insertion, ideas of reference from his surroundings and persecutory beliefs, which he accepts were at least partially delusional.

...

Mr Snelgar was acutely mentally ill at the time of the offence. He has schizophrenia, a disease of the brain, which produces a pattern of abnormality of mind recognised in law to be a diesease of the mind.

At the time of the offence he had a defect of reason in the form of the delusional belief that he was under surveillance by an international team of agents, and that he would shortly be killed. As a result of his belief he decided to commit suicide, and attempted to kill his mother in the misguided belief that she would not be able to cope without him. At the time of the offence he was unable to reason with any sense or composure about his actions, and was deprived of the ability to recognise that what he what was doing was wrong.”

34 I note the penultimate paragraph of Dr Neilssen's report:

“There was no history of any form of antisocial conduct or significant substance abuse, and in my opinion the offence was entirely due to the symptoms of acute mental illness. Mr Snelgar had not received treatment prior to the offence. Now that treatment has been established, Mr Snelgar does not pose a threat to the community and could be managed in a community hospital, and in due course as an outpatient.”

35 The Director of Public Prosecutions retained Dr Westmore a forensic psychiatrist to report on the mental condition of the accused. Dr Westmore examined the accused on 5 April 2002. I turn now to the contents of his report of 9 April 2002. Dr Westmore elicited a history from the accused largely conformable with that given to Dr Neilssen. In my view it is also consistent with the accounts of the neighbours and Bruce Snelgar concerning the deterioration in the accused's mental condition in the period leading up to the assault upon his mother. Dr Westmore said that the accused told him things were pretty bad, "I realised that there were people prowling around the house at night, getting under the house, damaging the foundations.” He went on to tell Dr Westmore:

“They got hold of the spare set of keys and were coming into the house at night, putting poison on the toothbrushes and stuff, to make us feel sick and strange and act weird. They were watching my movements so carefully, they could tell when I went out on the front verandah. They were operating out of the house two (houses) up which was empty at the time. They were driving me to distraction.”

He said, "The reason they were doing this is because I had found out about the new world order.”

36 The accused went on to give an account that the period of four months leading up to the assault upon his mother had been a "bad period" for him. On two occasions a helicopter had buzzed his home and on another occasion a World War II style of aircraft had done a "mock attack on the house". People were shining lights in the house at night and on one occasion this had kept him up until about 3am.

37 The accused gave this account to Dr Westmore of the offence:

“One morning I picked up a tomahawk that was lying around and I walked out into her bedroom to look out her window in the neighbour's place. She spoke to me and said, what are you doing? She turned over and closed her eyes again and I walked up and hit her as far as I can recall. I asked him why he had done that and he said 'I don't know. I wish I could figure it out. I just can't give an answer. I think that I was worried the new world order was going to get me and she would be left on her own, she had a mini stroke and other problems, I think I thought it would be better for her to be dead and then I would commit suicide.”

38 The accused denied any past history of aggressive behaviour towards his mother and generally described a good relationship with her.

39 Towards the end of his consultation Dr Westmore asked the accused if he accepted that he had a mental illness. The accused responded, "Yes, I hate to say it but..." Dr Westmore then asked if the accused was aware that he may be able to present a mental illness defence to the charge of murder. The accused told Dr Westmore that he still cries about his mother. He went on to say, "but it still remains the fact I did the thing". At that point in the interview the accused broke down into uncontrollable tears.

40 Dr Westmore diagnosed the accused as suffering from a chronic schizophrenic illness probably of a paranoid type. He concluded:

“Mr Snelgar is a 49 year old man charged with the homocide of his mother. The incident occurred during an acute episode of schizophrenia. He had delusional beliefs of a paranoid type, and these may have been in place for at least four months before the homicide, perhaps longer.

…

I believe Mr Snelgar was suffering from an acute episode of his chronic mental illness, schizophrenia, at the time of the homicide and that his illness played a direct role in his aggressive behaviour towards his mother. He was suffering from a disease of the mind, namely schizophrenia, this would have totally deprived him of his capacity to know that he ought not to do the act. It is likely he understood the nature and quality of his actions at the time he struck his mother with the axe. He would not have been able to consider his behaviour in a reasoned and rational fashion due to the presence of his mental illness. Mr Snelgar will require long term psychiatric care and support.”

41 The classic statement of the ingredients of the defence of mental illness remains that set out in the directions to the jury given by Dixon J in R v Porter (1933) 55 CLR 182 at 188 - 189:

“I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long-standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong.
…
We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of his 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.”

42 I am satisfied upon the balance of probabilities that at the time of doing the act causing death the accused was mentally ill, in that he was suffering from a long-standing disease of the mind, namely, chronic schizophrenia. I am satisfied that this mental condition prevented the accused from reasoning with a moderate degree of sense and composure that what he was doing in striking his mother about the head with a tomahawk was wrong.

43 I turn now to a consideration of s 37 of the Mental Health (Criminal Procedure) Act 1990. This 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 made 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 to 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 any member of the public will not be seriously endangered by the person's release.

44 I am sitting as a judge alone. In doing so I remind myself of the matters to which s 37 directs attention.

45 For these reasons I propose to return a special verdict pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990. Would you stand up please Mr Snelgar.

46 I find that you are not guilty of the murder of Barbara Louise Snelgar by reason of mental illness.

47 I order that you are to be detained in the psychiatric ward of the Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.

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Last Modified: 11/22/2002