The State of Western Australia v Wilkinson
[2011] WASC 291
•11 OCTOBER 2011
THE STATE OF WESTERN AUSTRALIA -v- WILKINSON [2011] WASC 291
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 291 | |
| Case No: | INS:8/2011 | 11 OCTOBER 2011 | |
| Coram: | McKECHNIE J | 11/10/11 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Not guilty on grounds of unsoundness of mind Custody order made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CHRISTOPHER ALAN WILKINSON |
Catchwords: | Criminal law and procedure Attempted murder Whether accused insane at time of offence No new principles |
Legislation: | Criminal Code (WA), s 283(1), s 294(1), s 317(1) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
CHRISTOPHER ALAN WILKINSON
Accused
Catchwords:
Criminal law and procedure - Attempted murder - Whether accused insane at time of offence - No new principles
Legislation:
Criminal Code (WA), s 283(1), s 294(1), s 317(1)
Result:
Not guilty on grounds of unsoundness of mind
Custody order made
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Category: B
Representation:
Counsel:
Prosecution : Mr J Mactaggart
Accused : Mr S S Freitag
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Simon Freitag
Case(s) referred to in judgment(s):
Nil
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1 McKECHNIE J: This is a trial by a judge sitting without a jury. The trial commenced yesterday, 10 October 2011. The accused is charged on indictment with five counts, one of which is an alternative count, that is count 4.
2 This judgment includes the principles of law that I have applied and the findings of fact on which I have I relied: Criminal Procedure Act 2004 s 120(2).
3 Ordinarily, in a trial such as this, there are five fundamental principles. They are:
(1) the presumption of innocence;
(2) the burden of proof;
(3) the standard of proof;
(4) the presumption of sanity;
(5) the burden of proving insanity.
4 An accused is presumed to be innocent at all stages throughout a trial unless the prosecution, who carries the burden of proving his guilt, satisfies the judge, beyond reasonable doubt that the accused is guilty of a particular count on the indictment.
5 There is a presumption of soundness of mind. In order to displace that presumption, the accused must satisfy a judge, on the balance of probabilities, that he was of unsound mind at the time of the commission of the offence, or offences, under consideration: Criminal Code (WA) s 27.
Admissions by the accused
6 This trial has been substantially foreshortened and the task made easier, by formal admissions, under the Evidence Act 1906 (WA) s 32, made at the commencement of the trial, by Mr Freitag on behalf of the accused.
7 Those formal admissions are:
• Count 1: It is admitted that on 2 May 2010, at Rockingham, Christopher Alan Wilkinson assaulted Gary Peter Cherry, and thereby did him bodily harm.
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- • count 2: It is admitted that on 2 August 2010, at Port Kennedy, Christopher Alan Wilkinson assaulted Brian Guild Fewson, and thereby did him bodily harm.
• Count 3: It is admitted that on 3 August 2010, at Rockingham, Christopher Alan Wilkinson attempted to kill Gaynor Rose Margaret Townsend.
• Count 5: It is admitted that on 3 August 2010, at Rockingham, Christopher Alan Wilkinson, with intent to main, disfigure or disable, or do some grievous bodily harm to Daniel Martin Race, wounded Daniel Martin Race.
8 This relieves the prosecution of its burden and those matters which are admitted can be taken as proved beyond reasonable doubt.
9 As can be seen from the admissions, the only live question is the question of unlawfulness because each count requires the State to prove that the accused acted unlawfully. As to that, it is the defence case that the accused was insane at the time of the commission of each offence and ought, therefore, to be found not guilty on the grounds of unsoundness of mind.
The prosecution's concessions
10 The prosecution does not challenge the report of Dr Patchett, which was tendered without objection by Mr Freitag, and it does not cavil with its conclusions. The prosecution did not seek to call rebuttal evidence.
The evidence as to unsoundness of mind
11 The prosecution called a number of witnesses to give context to the particular acts. Mr Freitag cross-examined the witnesses, not to dispute their evidence but to draw out from participants and bystanders some aspects of the accused's demeanour at the time of the commission of the offence which support the diagnosis by Dr Patchett.
12 In due course, as part of the defence case, Mr Freitag tendered a number of depositions from eyewitnesses and police officers.
The circumstances of the attempted murder
13 Ms Gaynor Townsend is the person named in count 3 and the alternative count 4. It is she whom the accused is alleged to have attempted to murder. On 2 August 2010, she was the second in charge of
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- The Reject Shop in the Rockingham City Centre. She observed the accused leaving the premises with a bottle of water. She did not then realise he had also a knife secreted in his pocket. She approached him politely and asked if he was not going to pay for it, could she please have the bottle of water back. In response he leaned down, put the water on the ground, withdrew a knife from his pocket, informed her he was going to slice her neck and did so.
14 He informed her in a voice that was not angry or violent but one that indicated he intended to do what he said he would. When she had earlier observed him his eyes were glazed. As part of its case, the prosecution tendered a DVD extract from two security cameras (Exhibit F). Together they cover the entire incident.
15 They confirm Ms Townsend's and Mr Race's account of the incident. The footage shows an incident frightening in its suddenness and chilling in its ferocity. As a result of the incident Ms Townsend suffered a slash to the throat and a slash across the eyes, both of which were repaired by plastic surgery.
16 Mr Race is the person named in count 5. He did not see the commencement of the interchange due to stock being in the way. He intervened when he heard the accused say, 'That’s it, you're dead'.
17 During the course of coming to Ms Townsend’s aid he punched the accused in the face and received a slash on the face and a slash across his shoulder. The facial injury was repaired by plastic surgery and the wound on the shoulder is still visible.
The accused's behaviour on the day
18 Ms Nurayan was the manager of a hardware store in Rockingham Centre. At about 9.00 am the accused came into the store and, in a stilted voice, said, 'Stanley knife'. She told him that, although her shop did not sell them: 'You can try The Reject Shop'. The accused made a funny chuckle, thrust his hand out to shake her hand and left the store.
19 When Ms Townsend first encountered the accused in the shop she smiled at him but got nothing back. There was a glazed look on his face. Ms Austin saw the accused at about 10.00 am. She described him as a bit scary looking, with a beanie pulled all the way down to brow level. She saw him after the event when he was in police custody out in the car park and she described him as having a grin, a 'I don't really care' look. She commented: 'I wouldn't have liked to approach him in an alleyway'.
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20 Ms Brown's evidence was read by the defence. She also was a receptionist at the real estate agent with Ms Austin and she observed the accused. She said: 'The man who attacked her [meaning Ms Townsend] looked like he was on something as he was shaking as he was handcuffed by police.
21 Evidence to similar effect was given by Ms Smith, a customer in The Reject Shop, who saw some of the altercation and afterwards, as police were leading the accused out, she was outside. She reported that he was smiling: 'It was just weird, not normal'.
22 Ms Heyworth was another customer in the shop whose evidence was read by the defence. She observed the incident, which she described as a frenzied attack, and noted that the whole time the accused was being restrained he said: 'Do you want to take it off me?' And he was grinning and smirking.
23 Ms Turtle is the security adviser. She had known, worked with and socialised with the accused up until he was let go in 2009 for personal reasons, including his mental health. When she arrived at the scene the accused was being restrained within The Reject Shop, on the floor. She took over the restraint and asked him what he was doing. The accused replied: 'I used to work at the shopping centre. I should be allowed to take things'. He then said: 'I won't hurt you, security mum'. Apparently, many of her staff referred to her as mum. The accused was shaking quite profusely and she told him to calm down. He told her there was a lady with a green jumper. He said that she did it. He didn't do it.
24 Mr Daniel Spencer was another employee of The Reject Shop who had a clear view of the incident. He said that the accused looked like he was crazy. He had a strange expression on his face. His recollection of the conversation about the lady with the green jumper is somewhat different to Ms Turtle's recollection. He said that the male started saying it was Gaynor's fault. He said something like: 'She had a knife. She was trying to slash at the lady with the green shirt'. Mr Spencer knew this was not true, as he saw Gaynor; that is, Ms Townsend, just prior to the attack. He said the accused kept laughing and singing to the songs that were being played on the PA system.
25 After police arrived, the accused was helped into a sitting position. Ms Turtle pulled his beanie down over his eyes out of respect for him, so he would not be recognised. The accused was laughing and rocking
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- backwards and forwards. She told him to stop mucking around or she would lie him back down, and he stopped.
26 Ms Pitcher, an employee of The Reject Shop, thought that the water container was sold for 60 cents, while Ms Townsend's recollection was that it was $1.50. In either event it was an item of very little value. The footage from the security cameras shows that the accused was making no attempt to conceal the bottle of water he had taken. He thrust it into the air and one point. He had secreted a knife. However, his actions were not consistent with ordinary shoplifting but suggested he was following some plan of his own devising to inflict violence on someone.
27 When the accused was arrested, Constable Walker noted that the accused was cognitive of instructions given to him, but he was laughing to himself and shook his head a couple of times. While he was in the cage of the secure van outside the shopping centre the accused started shouting out swear words at passersby.
28 During the course of a strip search at the police station, while the accused was being searched and photographed, he commented to Officer Rowlands: 'When I slashed that guy I didn't cut my hands', evidence of the accused's behaviour prior to the event.
Evidence of the accused's behaviour prior to the event
29 Ms Turtle gave evidence of two occasions. The first was when the accused attended the shopping centre with another man who had unfinished business with a security guard. Eventually, both were escorted from the premises. I do not draw anything from this encounter.
30 Significantly, however, on 21 July 2010, some couple of weeks before the events in question, the accused was in the Coles car park at the shopping centre, preaching and being intimidating. He had prevented a lady pushing a shopping trolley by preaching at her.
31 When Ms Turtle confronted him he told her he was being cleansed. He had the devil inside. He pulled down his lower eyelid and she observed a small brown or black dot, which he said was the last bit of the devil that had impregnated him. He also said that his friend was impregnated with Jesus and would be reborn in three years. Ms Turtle asked him to leave, which he did without fuss. She observed him on the other side of the road standing with his hands in a praying position.
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32 Also of relevance is the attack on Mr Fewson, which is the subject of count 2. This occurred the day before, at the St Clair Shopping Centre, Port Kennedy. Mr Fewson, a security guard, intervened following a complaint that the accused was harassing customers by begging for money.
33 He approached the accused, wished him a good morning, and told him there were reports of begging, which was not allowed in Australia. The accused repeated back what Mr Fewson had said to him, including the words: 'You'd better leave'. The accused was told again to leave, and wandered away. Three of four minutes later he returned to a distance of about 40 metres.
34 Mr Fewson had a cold that morning, and turned away to blow his nose. The accused crossed to him and accused Mr Fewson of blowing his nose in his direction and disrespecting him. He then struck Mr Fewson's sunglasses from his head and walked away.
35 The accused went to a public phone and made a call, but nobody seemed to answer. He was followed by a lady who made a long phone call. The accused swore and abused her and asked Mr Fewson to arrest her. Mr Fewson responded that he could not.
36 The accused made a phone call and then walked over to Mr Fewson, until he was a few centimetres from his face, and struck him on the right side of the head, before launching an attack on him, finally being repelled by a shopkeeper who also bundled Mr Fewson into her store for protection.
37 Mr Fewson's assessment of the accused's demeanour was that he was of a lower mental capacity and might be on drugs or mentally deficient, but there was something not quite right. There was no provocation and no reason why the accused hit Mr Fewson.
38 Going back in time, to 2 May 2010, the subject of count 1, Mr Cherry was the security guard on duty, by himself, outside the Vibe Nightclub, in Rockingham, when, at about 1.30 am, he was approached by the accused.
39 He asked the accused if he was coming in but the accused said nothing, and walked away. He came back and Mr Cherry asked him again. Suddenly the accused struck Mr Cherry in the side of his head, near his ear, causing it to, 'bleed a couple of litres'. The accused was a
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- stranger to him at the time of the attack. The accused said nothing throughout the incident.
Unsoundness of mind
40 The effect of the Criminal Code s 26, is that the accused must satisfy me, on the balance of probabilities, that he is not criminally responsible for the acts which comprise each of the counts of the indictment, on account of his unsoundness of mind.
41 A person is not criminally responsible for the acts which give rise to each of the counts if, at the time of doing the act, he is in such a state of mental impairment as to deprive him of one of the three capacities listed in the Criminal Code s 27(1).
42 In this case, the defence submit that because of the accused's mental impairment or, more precisely, his mental illness, he did not know that he ought not do the acts.
43 Dr Patchett made a diagnosis, which included poly-substance abuse. The accused admitted to him that he had been taking, from school years, marijuana, alcohol, and then later amphetamine and methylamphetamine, ecstasy and morphine. However, the accused also claimed that he had ceased all substances, apart from alcohol and intermittent marijuana, from about February 2010.
44 In some circumstances the provisions of s 28(1) of the Criminal Code may have relevance. However, blood samples taken from the accused, shortly after the incidents on 3 August 2010, showed no traces of alcohol, cannabis, or other illicit substances.
45 There is no evidence that the accused was intoxicated by alcohol or drugs at the time. And so the provisions of s 28(1) do not arise for consideration.
46 The evidence concerning the accused's mental impairment, and lack of capacity, comes from the comprehensive report of Dr Steven Patchett, dated 29 April 2011.
Report of Dr Patchett dated 29 April 2011
47 There is one caveat to this report. Dr Patchett explicitly did not address the mental state of the accused, in relation to count 1. Dr Patchett based his report on a number of sources of information, including his own psychiatric examination on numerous occasions. He described how the
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- accused had been referred to the Frankland Centre, on hospital order, on 4 August 2010, and that it was clear from the outset that the accused was seriously mentally ill.
48 He remained, for a long time, unfit to stand trial and it was not until the end of November 2010, almost four months after his admission to the Frankland Centre, that his psychosis settled enough for him to be fit to plead and he has remained so since.
49 The accused described the development of what Dr Patchett refers to as a very elaborate psychosis about eight months before the alleged offences which involved a woman he met by chance called Chantelle. A few months after he met Chantelle, he developed auditory hallucinations of her voice and described daily and almost continual auditory hallucinations of Chantelle that came to completely dominate his perceptual world.
50 Fairly early on in the development of the psychosis the accused came to believe that he and Chantelle together made God. He believed, therefore, it was God who was speaking Chantelle's auditory-hallucinated voice. He described hallucinations of a command nature, telling him to do simple things initially.
51 About a week prior to the August incident he described how he went to the Rockingham Hospital because: 'I was being mentally tortured in the post office by Chantelle to prove my strength'.
52 He described how he was praying and looking up to the sky and listening to Chantelle's voice and then he decided to go to the hospital where he heard a child scream and the mother say: 'You are not scared'. He explained how he immediately came to believe that the world was going to end; that everyone was degrading everyone else, killing, torturing and abusing, particularly sexually abusing children: 'And it was all around me'. The accused said he thought he was going to be shot and that he was the only one in the world at large that could rid the world of paedophiles.
53 On the occasion when he attacked Mr Fewson, he went to Warnbro, got food and began to beg, which had been his custom, in order to get money to give to Chantelle. Chantelle told him: 'You have a licence to do what you want'.
54 He saw the security guard blow his nose into a handkerchief and claims that at that moment Chantelle said: 'Anybody who disrespects you,
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- you have a licence to kill'. He claims he went over to the security officer, flicked his glasses off his head and was going to assault him for disrespecting God but did not. He then went away, made a phone call to the prison to make a booking to see Chantelle, then came back and said to the security officer: 'Did you commit the offence? The offence of disrespecting God', and said to the security officer: 'You are going to hell, mate'. The security officer apparently said, 'No', but the accused punched him anyway because: 'I knew he had blown his nose and had committed the offence'. His account of the incident ties in closely with Mr Fewson's account of the physical actions of the accused.
55 On 3 August 2010, upon waking, the accused claimed that he heard Chantelle say: 'Today is the day, baby'. He explained that he knew what that meant, that it meant to get a knife and kill the first person to disrespect God. And then went on to explain that if they did respect him and Chantelle that meant that they wanted baby Jesus and Chantelle's womb to be eaten by Satan.
56 He described how he went to The Reject Shop, took the knife and the bottle of water. When he heard what must have been Mrs Townsend asking him: 'Excuse me, are you going to pay for that?' He thought, 'No worries, a female paedophile. I created her. Now I'm going to take her. She doesn't want to give God a bottle of water. She knew I was God. Everyone knew I was God. Everyone walking past, everyone jogging past, my foster family; I could hear that they knew I was God, could see their spirit rejecting God'.
57 He claimed that he had the Stanley knife in his right hand and said as he was bending over: 'You are going to die now'. He then attacked her. These words are similar to those which Mr Race recollected hearing the accused say. At the same time the accused described experiencing a number of other psychotic phenomenon which Dr Patchett lists.
58 Dr Patchett noted that the accused has a previous history of chronic paranoid schizophrenia and poly-substance abuse. His first admission to a psychiatric hospital occurred in October 2003 where those diagnoses were made. He was re-admitted in May 2005 with the same diagnosis of paranoid schizophrenia. On each occasion he was treated.
59 Significantly, the accused was admitted to the Alma Street Clinic on 7 July 2010 and discharged on 15 July 2010; that is, just a couple of weeks before the events of August. He was described on admission as: 'Significantly disorganised, was acting on his religious delusions. He
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- referred to God as "She" and described some of the commands She had given. He had grandiose delusions and persecutory delusions'. He stated he was incapable of harming anyone. His depot medication was increase and, with the addition of oral Promazine, his mental state improved such that he was discharged eight days after admission.
60 At the time of admission to the Frankland Centre on 4 August 2010, the accused presented as extremely guarded, on edge, suspicious and paranoid. He was clearly auditory hallucinated and communicating direct with God. His speech was reasonably coherent but disordered, and his judgment was grossly impaired.
61 Encouragingly, Dr Patchett noted that with the use of anti-psychotic medications and an absence of substances the accused subsequently improved and, as at the time of the report - April 2011:
Mr Wilkinson's improvement has been progressive, such that he is now free of auditory hallucinations and grandiose and persecutorial delusions and is also free of the thought disorder that was evident in the early stages of his admission. He is now appropriate in terms of emotional response, including experiencing strong remorseful sentiments towards the victims of his actions.
62 In broad terms, I accept the background material given to Dr Patchett. I do so, in part, because of the congruence between his accounts of particular events and accounts by prosecution eyewitnesses and participants, and I refer particularly there to the evidence of Mr Fewson, Ms Townsend and Mr Race.
63 Dr Patchett's opinion is that at the time of the incidents on 2 and 3 August 2010, the accused was seriously mentally disturbed. He was in the throes of a psychosis and with the belief that he had a licence to carry out God's will. He perpetrated the offences believing, in essence, that he had a right to do so. Dr Patchett concludes:
I believe he was suffering from a serious mental impairment at the time and, furthermore, was deprived of the capacity to know that he ought not do the acts that resulted in the charges.
64 This report is not challenged by the prosecution. Indeed, the prosecution agree with it. There is no contrary evidence. Nevertheless, I must be satisfied on the balance of probabilities that the accused was in a state of mental impairment and deprived of the capacity to know that he ought not do the act or acts on each occasion specified in the indictment.
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The accused's state of mind for counts 1 and 2
65 The evidence of the witnesses to which I have briefly referred indicates that the accused's behaviour on 2 and 3 August 2010 was distinctly odd, being variously described as scary, weird, something not quite right. This impression is reinforced by his behaviour in the couple of weeks earlier, when Ms Turtle spoke to him as he was praying in the car park.
66 Less can be gleaned about his mental state on 2 May 2010, when he assaulted Mr Cherry, because on that occasion the accused did not say anything. Dr Patchett does not record any history relevant to this event. However, the accused's behaviour on that occasion is, broadly speaking, very consistent with his behaviour on the other occasions. As I have said previously, Dr Patchett did not express any opinion in relation to this incident.
67 There are two aspects to the defence generally and particularly in relation to count 1. As to the first, I am satisfied that the accused was suffering a mental impairment at the time of 2 May 2010. Dr Patchett states the onset of the psychosis was from about February 2010 and that it developed in intensity. Symptoms of the psychosis included auditory commands by Chantelle. The incident on 2 May 2010 was an irrational incident, in that there was no provocation or justification for king hitting Mr Cherry.
68 Of course, people do commit acts of random violence for apparently irrational reasons. If there was no history of psychosis I would attribute to the accused a motiveless but responsible violent act. However, in view of his psychosis, his complete lack of violent offending and the further manifestations of violence due to psychosis in August 2010, I infer, on the balance of probabilities, that the accused did not know that what he did was wrong, because of the state of mental impairment on 2 May 2010.
69 On each of the three occasions - count 1, count 2 and count 3 - the accused was not offered any provocation. The two security officers and Ms Townsend all spoke politely to him. None made any threatening physical advance to him. Each was attacked suddenly, without warning and without any explicable reason. Nothing in each of the transactions of Mr Cherry, Mr Fewson or with Ms Townsend would give rise to an ordinary person getting angry and lashing out.
70 The wounding of Mr Race is in a slightly different category because in the circumstances an ordinary person may well act much the way as the
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- accused did, however irrational his earlier act. However, that incident involving Mr Race cannot be divorced from the incident involving Ms Townsend. It occurred immediately after and his state of mind would have been the same for both.
71 There is no contrary evidence from that of Dr Patchett. I should and do accept his report. However, I am fortified in doing so by the evidence of those who observed the accused in ways that I have outlined, which strongly confirms Dr Patchett's opinion.
Conclusion: Not guilty on account of unsoundness of mind
72 In the light of the formal admission and the evidence from all the relevant witnesses, each of whom I accept as credible and reliable witnesses of truth, I am satisfied beyond reasonable doubt that the accused did the acts in relation to counts 1 and 2 that amount to an assault occasioning bodily harm.
73 As to count 3, I am satisfied beyond reasonable doubt that the accused attempted to kill Ms Townsend, intending to cause that result, using a knife to slash her throat; that is, by means adapted to its fulfilment.
74 As to count 5, I am satisfied beyond reasonable doubt that the accused wounded Mr Race with intent to cause him grievous bodily harm.
75 Normally, the result of these findings is that the accused would be convicted of each of those offences. However, one element which the State must prove in each case is that the accused acted unlawfully. The provisions of the Criminal Code relating to unsoundness of mind are contained within s 27 and are of ancient origin. They derive from the M'Naghten Rules formulated by the Court of Common Pleas in answer to questions from the House of Lords in 1843.
76 While suffering from delusions in circumstances that have some similarities with this case, Daniel M'Naghten had shot and killed the prime minister's private secretary. The M'Naghten Rules, now part of our law under s 27, are part of the fabric of our Australian society and reflect a societal norm, that the bad should be punished but the mad should be treated. As a society, we decline to punish a person who is not criminally responsible for their actions, no matter how horrific those actions are to innocent victims. This is one such case.
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77 I am satisfied in respect of each count on the indictment that it is more probable than not that the accused was suffering a mental illness that deprived him of the capacity to know that he ought not do each of the acts which I have found that he performed. He is therefore not criminally responsible for those actions.
78 In respect of counts 1, 2, 3 and 5 on the indictment I find you not guilty on the grounds of unsoundness of mind. I will enter a verdict of acquittal on the grounds of unsoundness of mind. I make a custody order in respect of you as a consequence of that verdict.
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