R v Gardiner (No 1) [2011] NSWSC 239 (30 March 2011)

Last Updated: 1 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court New South Wales

Case Title:	R v Gardiner (No 1)
Medium Neutral Citation:	[2011] NSWSC 239
Hearing Date(s):	28, 29 March 2011
Decision Date:	30 March 2011
Jurisdiction:
Before:	BUDDIN J
Decision:	In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 I find the accused not guilty of the charge of murder by reason of mental illness. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen and of Dr Roberts be drawn to the attention of Justice Health.
Catchwords:	CRIMINAL LAW - offence of murder - trial by judge alone - whether "defence" of mental illness available
Legislation Cited:	Criminal Procedure Act 1986 Mental Health Act Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Fleming v R [1998] HCA 68; (1988) 197 CLR 250 R v Coleman [2010] NSWSC 177
Texts Cited:
Category:	Principal judgment
Parties:	Regina (Crown) Noel Keith Gardiner (Offender)
Representation
- Counsel:	Counsel: S Huggett (Crown) C Bruce SC (Accused)
- Solicitors:	Solicitors: S Kavanagh (Solicitor for Director of Public Prosecutions) (Crown) Legal Aid Commission of NSW (Accused)
File number(s):	2009/199893
Publication Restriction:

Judgment

Introduction

1. On 28 March 2011 the accused was arraigned upon an indictment which alleged that:

Between 4 September 2009 and 5 September 2009 at Casino in the State of New South Wales [he] did murder Elizabeth Phillips.

2. The accused pleaded not guilty to the indictment upon the basis that he was mentally ill at the relevant time. I was informed that originally an issue had arisen as to whether the accused was fit to stand trial. On 21 September 2010 Kirby J determined, upon the basis of an agreed position between the parties, that there was no longer any need for an inquiry into the accused's fitness in respect of the matter.

3. The trial of the accused has proceeded as a trial by judge alone after the accused made an election pursuant to s 132(1) of the Criminal Procedure Act 1986 to be tried in that fashion. The accused indicated that he had received advice from his solicitor before making the election and the Crown indicated its consent to the matter taking the course which was proposed. Section 133 of the Act casts certain obligations upon the judge in reaching a verdict in such a trial. I have had regard to those obligations: Fleming v R [1998] HCA 68; (1998) 197 CLR 250.

4. The accused made a formal admission that he had killed the deceased with an intention to inflict grievous bodily harm upon her. Accordingly, the only issue which I have to determine is whether the accused was mentally ill at the time of the killing. Even upon that issue the evidence is all one way and the parties are in agreement that I should find the accused not guilty by reason of mental illness.

5. The offender is now aged 22. It would appear that he was born in Inverell but that his family moved shortly thereafter to Casino. His parents separated when he was about 5 or 6 years of age following which he lived with his mother and a younger brother. At some stage the offender ran away and went to live with his father in Kempsey. Sadly his mother died not long thereafter.

6. Following his mother's death, the offender moved to live with his aunt in Sydney and then with a succession of relatives in various parts of the city. The offender had a very disrupted education and was twice expelled from school for fighting. He left school in Year 8. He has a history of significant alcohol and illicit drug dependency and has never been employed.

7. The accused is no stranger to the criminal courts. Moreover, he has also been dealt with on a number of occasions under the provisions of the Mental Health (Forensic Provisions) Act 1990 and/or its predecessors. He has also been placed in, and has absconded from, Rozelle Hospital on a number of occasions. Justice Health holds an extensive file containing his medical records.

Background to the fatal incident

8. On 20 August 2009 the accused attended Casino Police Station. He told police that his girlfriend had been kidnapped but was unable to provide any further details about the incident. After searching their database, police placed the accused under arrest in respect of offences which arose from an incident that had occurred on 8 November 2007.

9. Custody Management Records maintained by police recorded the following observations of the accused:

"Visual Assessment

g. Does the person appear irrational or mentally disturbed?: Y

Comments: Appears to possibly be suffering mental illness. Claims that his girlfriend has been kidnapped. But cannot provide any names or details."

10. The accused was granted bail in Lismore Local Court the following day. A condition of his bail was that he was to reside with his aunt Elizabeth Phillips (the deceased). She suffered from diabetes and both of her legs had been amputated at the knees as a result of complications arising from that illness. She was restricted to a wheelchair whilst at home but used an electric scooter to enable her to get around when she was outside the house.

11. On 26 August 2009 a mental health worker spoke with the accused. He told her that " something [had] happened to him and he [did not] understand what it [was]". He also told her "that he had been in the army in Iraq". She thought that he may have been suffering from a psychosis with delusional beliefs and auditory hallucinations. At that stage it was not considered that he was at risk of harming either himself or others.

12. Whilst they were residing together the accused and the deceased regularly argued. Following one such argument in the week prior to the fatal offence, police were called to the premises in Albert Street. On the morning of 4 September 2009 the accused visited the home of a relative, Nicholas Donnelly. They started smoking cannabis together whereupon the accused started saying, "I just got out of the army and I been to Iraq" and "Let's go and kill people. I want to kill people".

13. Donnelly and the accused then began to walk through Casino. The accused laughed and stared at people as they went past him. The accused kept saying that he wanted to kill people. He told Donnelly " I wanted to kill someone so I can get to Andrew...I don't like him cause of what he did to Will". That comment was apparently a reference to a man named Andrew Carr who was then in custody in Sydney awaiting trial on a charge of murder. Mr Carr was subsequently sentenced after having pleading guilty to the charge. 'Will' is a reference to William Campbell, the person whom Mr Carr killed.

14. In due course the accused and Donnelly went their separate ways. Shortly before 4:30pm the accused was seen standing on the front lawn of the property belonging to the deceased's next-door neighbour, swinging a golf club. He was then seen climbing through the bedroom window of the deceased's home. The deceased returned home from dialysis treatment at about 4:30pm.

15. Between 8:45pm and 10:00pm, the accused attended a rugby match in Casino. He sat drinking beer with a group of people during the game. Subsequently the accused went with a group of people to the Commercial Hotel in Casino where he continued drinking. Whilst there, he became intoxicated and started fighting with another male. The fight was eventually broken up by other patrons.

16. At about 11:00pm the accused went to Casino Police Station where he complained that he had been assaulted at the football. He appeared upset and was assessed as being moderately intoxicated. He became agitated and told police that he had served in the military in Iraq. He also said:

When I returned from Iraq I served in Sydney. Then they sent me up here and now I serve in Lismore.

17. Police told him to go home and that if he wished to make a statement he should return the next day when he was sober. The accused left the police station and went home.

18. Some time between 11:45pm on 4 September and 12:10am on 5 September, the deceased and the accused had a loud argument. The deceased yelled at the accused telling him to get out. The accused yelled back "I am going to kill you". The deceased yelled out "get away, go away, leave me alone". The argument continued for some time.

19. Whilst the accused was standing outside on the deceased's veranda, a neighbour yelled at him to be quiet. The accused yelled back to the neighbour before going back inside the deceased's house. The deceased and the accused continued to argue for about a minute. The accused yelled out " /' m going to stab you" a number of times.

20. The accused then proceeded to repeatedly stab the deceased with a knife as she lay on her bed. During the course of the attack, the deceased tried to defend herself with her hands, but was unable to resist the accused's attack. The accused kicked open the front wire door and walked out to the street holding his shirt in his hand and waving his arms in the air. As he did so, he was yelling out:

"I killed my mother. I killed my mother ... I'll stab any of you cunts if you come out. I am going to stab her again, I'll stab my mum again ... Why don't you kill her like you murdered our mother".

21. As the accused walked along the street he was seen waving a knife in the air. He was heard to yell out words such as:

"Kill all you cunts ...

I've just killed my mother. I just killed my aunty. I killed her, I killed her. I stabbed her, I stabbed her ...

I don't give a fuck. I'll stab anybody if anybody wants to fuck with me ... Ring the fuckin' coppers. I fuckin' killed her ...I fuckin' stabbed the bitch, I murdered her. She's fuckin' dead'.

22. The accused saw some friends and walked over to them. He was crying at the time and repeatedly screamed out " I stabbed my aunty. I killed my aunty... I just sliced her up". The accused then showed them a knife and said "Look, it's my aunty's blood on the knife". His friends were able to see that there was blood on the knife and that the accused had blood on the palm of his right hand. They could also observe that he had a cut on the left side of his chest which had blood dribbling out of it. Nicholas Donnelly recalled the accused saying "I just killed my mother, I just killed my aunt, I did it all over you fellas".

23. Minutes later, concerned relatives attended the deceased's house. The deceased was found lying dead on her bed and her body was covered in blood. Ambulance officers arrived at 12:35am and transported her body to Lismore Base Hospital where life was pronounced extinct.

24. Police were unable to locate the accused that night, but at approximately 7.20am the following day he was spoken to by the manager of a large rural property in Kyogle, some 25 kilometres from Casino. He told the manager that he was going to take a quad bike claiming "my people owned all this country originally and bought all this stuff." The accused stated that he was in a little bit of trouble and that he just wanted to get to Sydney. The accused left the property and was last seen walking towards an adjoining farm. When police attended the property they were unable to locate the accused.

25. At about 8.50am police were called to another property in Kyogle. The accused was located in a house on the property and was placed under arrest. When he was asked about the murder of the deceased, the accused told police, during the course of an interview, that he had been involved in a fight downtown. He said that he had returned home but that he was not sure what had happened because he had been knocked out a few times and that "someone, someone's done something and now I'm fucken, you know, I'm gone man". He said that he was not presently on medication and that he did not use drugs. He said that he may have been intoxicated the previous night but that he could not be sure. He stated that he did not know what day or year it was nor how he had got to Kyogle although he said that he did remember having done some walking. The accused claimed that he used to live in the house in question and that he had bought it before going into custody. He also told police that he was confused.

26. On 8 September an autopsy was performed upon the deceased. The direct cause of her death were six stab wounds to her chest that had penetrated into the chest cavity and the right lung. A single stab wound to her abdomen had penetrated into the liver. The deceased had also received stab wounds and cuts to her nose, ear and both sides of the head. N umerous superficial cuts were present on both her hands and on her right forearm which were consistent with defensive wounds.

27. The autopsy also revealed that the deceased had been in a poor state of health. Apart from having had her legs amputated, she was also suffering from anaemia, ischaemic and hypertensive heart disease and renal failure which were all significant factors that indirectly contributed to her death.

28. Following his arrest, the accused underwent a mental health assessment at Lismore Base Hospital. He gave a history of having heard voices for many years. His thoughts were disordered and he was prescribed medication. It was recommended that he be detained in a psychiatric facility within Corrective Services.

The psychiatric evidence concerning the accused's mental condition

29. Dr Nielssen provided a comprehensive report, dated 28 December 2009, at the request of the accused's legal representatives. Having interviewed the accused, Dr Nielssen made the following observations about his condition at the time that he killed the deceased:

It was soon apparent that Mr Gardiner had a severe form of mental illness and was also of below average intelligence. His answers were disorganised in form and many of his answers were unrelated to the questions put to him. He expressed a number of bizarre beliefs, for example, that he had been posted overseas as part of the Australian army, that he had been in the air force, that he had completed the Higher School Certificate and that he owned a large amount of property in the Casino area.

Mr Gardiner came to the interview from a mental health area of the MRRC and was able to tell me that he had been transferred to that area from soon after his arrest [sic] saw a psychiatrist at regular intervals. He said that he had been prescribed the anti psychotic medication, quetiapine (Seroquel) at the moderate dose of 600 mg per day in combination with the mood stabiliser valproate (Epilim) and the antidepressant mirtazepine (Avanza)

Mr Gardiner reported experiencing hallucinations of voices that included the voices of people he knew as well as some unfamiliar voices. He agreed that he had experienced hallucinations for some years, that he was experiencing hallucinations around the time of his reception to prison, and that he was probably hearing voices at the time of the offence. However, his answers to questions about the reason for the offence were very difficult to follow and I was unable to establish the effect of any symptoms around the time of the offence or whether his actions were a direct response to symptoms of mental illness.

When taken to the allegations in the Police Facts, Mr Gardiner became uncomfortable and gave increasingly disorganised answers that were difficult to follow. I was unable to elicit a clear account of the circumstances of the offence or why Mr Gardiner might have committed the offence. He was also unable to tell me anything about the circumstances of his arrest and said that he did not remember being at a property outside Casino or what took place between the day of the offence and his arrest. He agreed that she was in a wheelchair because of complications of diabetes. He denied believing that she presented a danger to him or that she had offended him in any way. He said that just before the offence "I had voices screaming out asking for help ... they knew that everyone was going crazy up there ... I saw boys in blue running up the street in balaclavas". However, he became increasingly agitated in response to further questions about the case itself and asked whether he could continue the interview on another day.

When taken to his circumstances in the period before his arrest, Mr Gardiner told me that he was released from prison several months before the alleged offence and that he had been sent by train from Sydney to stay with a woman he described as his auntie, who was related to his father. He said of the arrangement "it all happened in a hurry and I didn't get my medication". He said that during the months that he lived in Casino he had not taken any anti-psychotic medication.

Mr Gardiner confirmed that he had smoked cannabis with various friends and relatives on most days after arriving in Casino, including on the day of the alleged offence. He also reported having a number of drinks at a local hotel on the day of the grand final of the local rugby league competition and then watching the game, although he could not tell me the names of the teams or the outcome of the game. He said that he did not have enough to drink to become intoxicated, although when asked he said that he did not remember much of what happened that day.

In response to a question later in the interview as to whether he had ever performed any paid work, Mr Gardiner said "what happened was I studied ... when I got the HSC I qualified to be a mechanic in the army ... I went overseas a few times and then I was in the Air Force ... if I got into trouble I came back home ... they took me

off the streets after I was staying at my aunties ... that's Liz Phillips ... she rang the police on me and admitted me to Rozelle Hospital ... my ex missus had an AVO on me ... I had to front the judge then went back to the juvie system ... I excaped from Rozelle Hospital a few times ... I was on heroin and ice at this time ... then I ended up back in gaol in the screening unit".

30. Having reviewed the accused's medical records, and after taking into account his longstanding history of abuse of alcohol and cannabis as well as his psychiatric history, Dr Nielssen diagnosed the accused as suffering from chronic schizophrenia and from substance use disorder.

31. He expressed his conclusions in the following terms:

The diagnosis of chronic schizophrenia is made on the basis of Mr Gardiner's account of typical symptoms of schizophrenia, the medical records showing treatment for schizophrenia since at least 2006 and Mr Gardiner's presentation during the recent interview, when he had disorganised thinking and bizarre beliefs that were consistent with acute mental illness.

Mr Gardiner's pre-morbid intelligence was estimated to be at the bottom of the normal range or in the mildly mentally retarded range from his reading ability and general knowledge. His intellectual performance was further affected by the presence of active symptoms of mental illness.

The diagnosis of substance abuse disorder is made on the basis of a history of abuse of drugs known to have harmful psychological effects, especially in people with underlying schizophrenic illnesses, and the probable role of substance abuse in the exacerbation of Mr Gardiner's illness and his behaviour on the day of the offences.

...

The observations of Mr Gardiner around the time of the offence indicate that he was acutely mentally ill at the time of the offence. I believe he will be able to raise the defence of mental illness to the charge, on the basis of the effect of his grossly disorganised thinking and acute symptoms on his ability to appreciate that his actions were morally wrong and his ability to reason with sense or composure about the likely consequences of his actions. (emphasis added)

32. In a supplementary report dated 7 January 2011 Dr Nielssen provided the following further opinion:

After reviewing the medical records regarding Mr Gardiner's treatment in the year before the offence and interviewing Mr Gardiner again, it is clear that he had a severe exacerbation of a chronic schizophrenic illness from which he has only recently made a partial recovery as a result of treatment with a high dose of antipsychotic medication.

Mr Gardiner was acutely mentally ill at the time of the offence and I believe he has the defence of mental illness available to him. He had a disease of the brain in the form [sic] an acute exacerbation of chronic schizophrenia, that produced an abnormality of mind that is recognised in law to be a disease of the mind. His mental illness produced a defect of reason in the form of bizarre delusional beliefs that the hallucinations he was experiencing were real, and that he was a former soldier and owned land in the Lismore area. Moreover, the grossly disorganised thinking associated with the acute exacerbation of illness prevented him from reasoning with sense or composure about the consequences of his actions or understanding that his act in stabbing a disabled female relative was morally wrong. (emphasis added)

33. Dr Samson Roberts was asked on behalf of the Crown to examine the accused and to prepare a psychiatric opinion in relation to him. He was also asked to comment on Dr Nielssen's report of 28 December 2009. Dr Roberts prepared a report dated 31 May 2010 after having examined the accused on 10 May. Dr Roberts made the following observations about the accused's mental state at the time that he killed the deceased:

Mr Gardner was asked as to whether there had been any conflict between him and his aunty to which he replied that there had been a little bit of yelling here and there. He did not recall any specific issues of conflict. Mr Gardiner could not recall what the voices were saying at the time of the offence, nor could he recall his emotional state at the time.

When asked as to what was going through his mind however, he referred to "a lot of stress". Mr Gardiner explained that his aunty was in a wheelchair and that she could not do much for herself. He would have to do things for her which he referred to as hard work. He helped with household duties. By his account, she could care for her own physical needs.

Mr Gardiner acknowledged that he had been accused of stabbing her. He stated, "They say she's dead." When asked as to whether he believed those people who had told him she is dead, he replied, "I don't know." He stated his opinion that she is probably in Witness Protection if she is not dead. He stated that he had not tried to get in touch with her. Another aunty had tried to visit him but he had declined the visit.

When asked whether he recalls the event, Mr Gardiner acknowledged that he "sort of remembers." Mr Gardiner recalled someone grabbing his hand. At the time, he had a knife in his hand because he was cooking. Mr Gardiner stated that he did not know who or what had grabbed his hand. When asked as to what subsequently happened, Mr Gardiner stated, "Then she passed away." Mr Gardiner stated that he did not think she would die. He stated that he had no intent to kill her. At the time of the incident Mr Gardiner stated that he did not know what was going on and that it was only five to ten minutes later that he realised. He acknowledged that he "sort of remembered the knife going into her". Then he stated, After I did it I stopped and I realised what I had done."

When asked as to what was going through his mind at that time, Mr Gardiner explained that he was not thinking and that he did not realise that what he was doing was wrong at the time. (emphasis added)

34. Dr Roberts then commented upon what his examination of the accused had revealed in the following terms:

Mr Gardiner presented as a slightly built Aboriginal man in prison greens. Psychomotor retardation was evident consistent with a mental illness. Speech was slow and lacking in spontaneity. Mr Gardiner's affect was restricted through much of the assessment process although when discussing certain symptoms, he smiled broadly and gave the impression of embarrassment. Mr Gardiner gave an account of past auditory hallucinations of a commanding nature and others commentating on him. He gave an account of paranoid ideas in the past and delusions of reference, namely the delusion that events have a particular relevance to him. Certain aspects of his knowledge suggested persisting delusions of reference at the time of the assessment.

35. Dr Roberts' diagnosis was that the accused was suffering from schizophrenia - paranoid type, alcohol dependence and polysubstance abuse. He continued:

With regard to the diagnosis of Schizophrenia as per DSM IV-TR Mr Gardiner's description of symptomatology and longitudinal history of delusions and hallucinations is consistent with the diagnosis. In terms of Criterion A Mr Gardiner has experienced these symptoms for in excess of 1 month. As required in Criterion B he has exhibited a degree of dysfunction. Criterion C requires that the disturbance is present for in excess of 6 months which is true in Mr Gardiner's situation. As required by Criterion D, the condition is not accounted [sic] by a diagnosis of Schizoaffective Disorder or Mood Disorder. Criterion E requires that the symptomatology not be the result of substance use or general medical condition. Given the protracted period of abstinence in custody, his symptoms cannot be ascribed to substances.

36. In respect of that part of the statement in which the accused yelled out:

"I killed my mother, I killed my mother, I'll stab any of you cunts if you come out. I'm going to stab her again, I'll stab my mum again and why don't you kill her like you murdered our mother."

Dr Roberts commented that:

In my opinion, these statements indicate a grossly disturbed state of mind. Had Mr Gardiner realised the nature of his act, namely that he had killed Ms Phillips, he would not be of the view that he could indeed kill her again or that someone else would be able to kill her. His reference to her being his mother is also consistent with a disturbed state of mind.

37. The accused's repeated statements to Mr Donnelly namely, "Let's go and kill people", suggested to Dr Roberts that he was "suffering a significant psychotic episode" at the time. Dr Roberts examined a number of the accused's medical records, including those held by Lismore Base Hospital and the clinical file maintained by Justice Health. In that material were other assessments that the accused was suffering from chronic schizophrenia. On other occasions he was described as being acutely psychotic for which he was prescribed anti-psychotic medication. Dr Roberts expressed his conclusions in the following terms:

Mr Gardiner gave an account consistent with the presence of psychotic phenomenology of onset as long ago as at least 2003. Although Mr Gardiner ascribes the onset of auditory hallucinations and paranoia to his use of methamphetamine, it is evident that his use of this substance was relatively short-lived and the symptoms described above persisted well beyond cessation. Whilst Mr Gardiner has been in psychiatric treatment, the account provided by him is indicative of the prescription of a sub-therapeutic dose of antipsychotic medication and, based on his account, it is evident that he did not experience remission of his psychotic symptoms. Indeed, it is not expected that a dose of the antipsychotic medication as prescribed would have achieved remission.

Mr Gardiner gave an account of a tumultuous childhood characterized by the death of his mother, frequent relocation and interrupted schooling which ended at Year 8. Although Mr Gardiner reported achieving literacy, he considered himself illiterate at the time of my assessment of him.

Mr Gardiner commenced substance use at age 13 years and has consistently used substances since that time, such that it is expected that he would exhibit cognitive deficits on neuropsychometric assessment independent of the effects of his psychotic illness.

At the time of the offence for which Mr Gardiner is before the Court, he had ceased antipsychotic medication and by his account experienced a marked exacerbation of his psychotic symptoms, including auditory hallucination, persecutory delusion and delusions of reference. At the same time it is apparent that he was responsible for assisting his wheelchair-bound aunty with day-to-day chores, a circumstance which he found stressful.

Mr Gardiner referred to limited recall of his emotional state at the time of the offence beyond acknowledging that he felt stressed. By his account, there was no overt precipitant to his actions, no planning or forethought. Mr Gardiner recalled not being in control of his body, namely feeling his hand grasped and directed by something or someone. At the time of the event, he happened to be holding a knife because he was preparing food. Mr Gardiner recalled that at the time of the event he was unaware that the act in which the perceived external force compelled him to engage was wrong. It was only subsequent to the event that he became cognisant of what had occurred. At the time of my assessment of him, Mr Gardiner remained skeptical in relation to reports that his aunty had died.

On the basis of these factors it is my opinion that Mr Gardiner may have available to him a defense of Mental Illness in accordance with McNaughton (sic) (emphasis added).

38. On 18 November 2010 Dr Roberts provided a supplementary report after having examined the accused again on 15 November. His conclusions on this occasion were expressed in the following terms:

It is evident that Mr Gardiner has experienced a marked improvement with respect to his psychotic symptoms. ... Despite his obvious improvement, it is evident that Mr Gardiner continues to experience symptoms reflective of his illness.

The account provided at the time of my assessment of him on 15 November 2010 was in essence consistent with that which was provided at the time of my assessment on 10 May 2010. Mr Gardiner described the experience of florid psychotic symptoms in the context of which he was stressed and angry. Whilst he described a pervasive emotion of anger, he could not identify a basis for it other than to state that he was angry at himself because of the voices.

On the basis of the above factors, it is evident that Mr Gardiner's thought processes were so adversely affected by his psychotic illness as to impede his ability to reason. The act, based on his account, occurred suddenly without forethought and without the belief that it would cause death or indeed that it has caused death.

It is my opinion therefore that Mr Gardiner would have available to him a Defence of Mental Illness in accordance with McNaughton. (sic)

39. To establish the defence of mental illness the accused must prove, on the balance of probabilities, that at the time of the killing he was suffering from such a defect of reasoning arising from a disease of the mind that he did not know the nature and quality of what he was doing, or alternatively if he did know it, that he did not know that what he was doing was wrong. (the M'Naghten test). It is the second limb of that test which is of particular significance in the present case. That requirement was described in the following terms by Dixon J (as his Honour then was) in R v Porter [1933] HCA 1; (1936) 55 CLR 182:

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 the 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. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. (at 189-90)

See also Stapleton v R [1952] HCA 56; (1952) 86 CLR 358 at 367.

40. It is to be observed that the opinions of both Dr Nielssen and Dr Roberts, particularly in those passages which I have highlighted, are directed to the test which I am bound to apply. In light of the evidence to which I have referred including the various utterances and actions of the accused at the relevant time, and his considerable history of mental illness, I have no hesitation in accepting the opinions of those experts, each of whom is eminently qualified in the area of forensic psychiatry.

41. I accept the submission made by each of the parties that the accused has established upon the balance of probabilities that he did not know, in the relevant sense, that what he was doing was wrong, and that therefore he was mentally ill at the time he stabbed and killed the deceased. It is axiomatic that a person who is found to be mentally ill cannot be held criminally responsible for his or her actions.

Order

42. In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 (the Act) I find the accused not guilty of the charge of murder by reason of mental illness. In doing so I have had regard, pursuant to s 37 of the Act, to the practical and legal consequences of that finding. See R v Coleman [2010] NSWSC 177 per Hall J [at para 69-79]. I order that the accused be detained, pursuant to s 39 of the Act, in the custody of Corrective Services NSW until released by due process of law. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by the court. I direct that the various reports of Dr Nielssen and of Dr Roberts be drawn to the attention of Justice Health.

43. Finally, I would like to take the opportunity of extending my sympathy to Ms Phillips' family, who undoubtedly have been deeply affected by this tragic event.

**********

Amendments

06 Apr 2011 Emphasis added (bold). Paragraphs: 31, 32, 33 and 37