R v Benjamin James WATSON [2011] NSWSC 839 (5 August 2011)

Last Updated: 8 August 2011

Supreme Court New South Wales

Case Title:	R v Benjamin James WATSON
Medium Neutral Citation:	[2011] NSWSC 839
Hearing Date(s):	1 August 2011
Decision Date:	05 August 2011
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Benjamin James Watson, upon the charge that on 10 March 2010 at Lake Bathurst in the State of New South Wales you did murder Helen Fay Watson, pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness. I order that Benjamin James Watson be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, in Long Bay Prison Hospital or such other facility as the Mental Health Review Tribunal may determine, 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 judgment and orders made by this Court and to provide the Tribunal with copies of the exhibits in these proceedings.
Catchwords:	CRIMINAL LAW - murder - judge alone trial - special hearing - defence of mental illness
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 Regina v Coleman [2010] NSWSC 177 R v M'Naghton (1843) 10 CI & F 200 [8 ER 718] R v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
Texts Cited:
Category:	Principal judgment
Parties:	Regina (Crown) Benjamin James Watson (Accused)
Representation
- Counsel:	Counsel: Ms S Hugget (Crown) Mr P Winch (Accused)
- Solicitors:	Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused)
File number(s):	2010/62258
Publication Restriction:

Judgment

1. The accused, Benjamin James Watson, has been charged under the Crimes Act 1900 with the murder of his mother, Helen Fay Watson, at Lake Bathurst on 10 March 2010. H e has been assessed as being fit to plead and stand trial by two psychiatrists, Dr Robert Lewin and Dr Olav Nielssen. There was accordingly no issue under the Mental Health (Forensic Provisions) Act 1990 as to the accused's fitness to be tried for the offence with which he has been charged.
   
2. The accused again pleaded not guilty to the charge, when the hearing proceeded before me on 1 August 2011. The accused is presumed to be innocent. He does not dispute that he was responsible for the acts which caused Ms Watson's death, but he relies on the defence of mental illness.
   
3. That defence is supported by the opinions of Dr Lewin and Dr Nielssen. They were both of the view that at the relevant time, the accused was suffering from a mental illness, such that he was deprived of the capacity to know that what he was doing was morally wrong. Their reports were in evidence and they were not required for cross-examination.
   
4. The trial proceeded before me as a judge sitting alone without a jury; the accused having made an election for such a trial in May 2011, under s 132(1) of the Criminal Procedure Act 1986, after having received advice from his solicitor Ms Coultas-Roberts. That election was thereafter consented to by the Crown.
   
5. Section 133(1) of the Criminal Procedure Act provides that a judge who tries criminal proceedings without a jury, may make any finding that could have been made by a jury on the question of guilt. In such cases the judgment must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury, the judge is to take the warning into account in dealing with the matter (s 133(3)). I have had regard to those obligations in coming to the conclusions which I have reached on the evidence.
   
6. It is only if I am satisfied that the Crown has proven the elements constituting the offence of murder, that I am required to consider the defence of mental illness which the accused has raised.
   

The parties' cases

7. There was no issue between the parties as to any of the matters which fall to me to decide, including that the accused killed Ms Watson; that the defence of mental illness was established; and as to the orders which should be made. Still, consideration must be given to whether the Crown has proven the offence charged and whether the accused has established the defence he relies on.
   

The accused's background

8. There was no disagreement between the parties about any of the facts. A statement of agreed facts, as well as various other documents were in evidence. The accused has no criminal history.
   
9. In March 2010, the accused was living with Ms Watson, on a property at Lake Bathurst, outside Goulburn. For some years he had resided in a caravan at the rear of that property. Ms Watson had five adult children, including the accused.
   
10. One of the accused's sisters, made a statement in which she described the accused's background. He grew up at home with his parents and four sisters. Their father died in 1996, when the accused was in year 9. Afterwards, Ms Watson supported the family. She completed a TAFE course in welfare and obtained employment with the Smith Family.
    
11. The accused had learning difficulties at school and left in year 9. He first obtained work as a farm hand on a nearby property and later moved to Parkes, where he obtained employment in a mine. He was away for about a year. It was during this period that he began using drugs. This seemed to lead to a gradual decline in his mental health, symptomised by paranoia and hallucinations.
    
12. In 2002, he left home to live with his girlfriend. That relationship lasted some 18 months, during which he was admitted to the Chisholm Ross Centre, after an incident at work. When his relationship broke down, he lived with another sister in Goulburn. His family members pursued medical treatment for the accused, but medication did not appear to help him. He continued experiencing hallucinations and paranoia. He was referred to Mental Health and began seeing a psychiatrist, Dr Ilchef.
    
13. Ms Watson also left the property to live in Goulburn in 2002. Later, while being treated by Dr Ilchef, the accused moved in with his mother. His sister believed he was then responding to treatment, but had good and bad days, due to drugs and alcohol. In 2008, Ms Watson and the accused moved back to the property at Lake Bathurst, where the accused was observed to be drinking alcohol heavily. Mid-year, Ms Watson told her that he had begun threatening her and that she was scared of him. He became obsessed with knives and on one occasion, she saw him playing with a hunting knife and speaking in a threatening manner.
    
14. On one occasion Ms Watson left to stay elsewhere and her family advised her to call the police, if the accused became threatening. About six months before her death, Ms Watson contacted police, with the result that the accused was again taken to the Chisholm Ross Centre. His sister had not seen her brother much since then. She had spoken to her mother by phone, shortly before her death, but they did not discuss the accused.
    
15. Another sister saw the accused on 8 March 2010 at her home. She drove him to see Dr Ilchef in Goulburn and waited for him. He told her that his medication had been reduced. On 10 March, she had dinner with Ms Watson and invited her to stay overnight, to save the trip home. Ms Watson declined.
    

What happened on 10 March 2010

16. On 10 March 2010, at about 8.59 pm, a 000 call was received by police. The caller, who identified himself as Ben Watson said '[h]ello, yes, I've just killed someone' and directed police to an address, stating that he would wait out the front of the house. The accused discussed with the operator, that he lived at the premises and that he had killed 'someone' there with a knife. A transcript of the 000 call was in evidence.
    
17. The accused saw a neighbour, who described the offender as appearing pale, with his eyes wide open, as if in shock. He was usually a slow speaker, but he spoke quickly and sharply that night, saying amongst other things '[t]here was a problem at home'. She went to Ms Watson's home and saw the front door open. As she approached, the accused emerged and told her to go home. She asked him about Ms Watson and he told her to go home saying 'I've called the ambulance'.
    
18. The neighbour returned home at about 9.20 pm and rang 000 and told them what she knew. They indicated that they had received a call for help, but at a different address. She gave them the correct street number and police soon arrived.
    
19. Police found the accused crouching down behind a vehicle, which was parked in front of the house. The top which he was wearing appeared to have bloodstains on the front. The police activated the police vehicle's 'In Car Vehicle Camera' ('ICV') as they pulled up. Their conversation with the accused was then recorded on the ICV system. The transcript is in evidence.
    
20. Ms Watson's body was found inside the house, on the floor in a bedroom. Blood was found on the telephone, beside which was a blood stained knife. The accused was cautioned and arrested. When asked his relationship to Ms Watson he said that she was 'a keep'.
    
21. On 11 March 2010, the accused participated in an electronically recorded interview. The transcript was also in evidence. The accused refused to answer most questions asked about what had happened.
    
22. When asked his name the accused said that the name he used at the moment was ' Benjamin James Watson' and that he had another name, 'Satan Nostradamus', which his real mother had given him. He said that he suffered from schizophrenia, for which he took oral medication. He also said that he was due to take his medication that day, but he did not like it, it made him feel giddy; a side effect that he had been suffering for the nine months since he had been taking that medication. He said he had been on a higher dose in the past and before that on injections and that he had not taken any drugs or alcohol.
    
23. Amongst other things which the accused did say was that Ms Watson was not his real mother; that he had met his real mother a couple of months ago; that he had met with her on a couple of occasions at his house; that Ms Watson had then been taken away by police, while his real mother was there, so that he could speak to his real mother. He also thought that his real father was then there, but he did not know their names. When further questioned he said that he knew from years ago, that his real mother was different to Ms Watson, 'from my voices through parents' and that Ray Watson was not his father. Ms Watson's relationship to him was 'a keep', by which he explained he meant 'introduced parenting'; that is, his parents 'pay her to look after me'. They told him she was not his real mother. He said that 'Satan Nostradamus' was his real name on his real birth certificate; that his real parents were in America, where he was born; that he had not been adopted and had DNA tests, when blood was taken while police were there. He said that he felt good when he had the DNA test and that the injections left marks, but he did not have any.
    
24. The accused also said that he had been put on a 'mind book spell or something' which 'they injected into me'. He explained that 'then they say stuff and then you go to sleep and then you wake up and you can't remember what you've done till later'. He explained that by 'they' he meant the police and the army.
    

The cause of death

25. A post mortem examination was conducted which showed that the cause of death was multiple stab and incised wounds to the neck and chest. The autopsy report was in evidence. It showed that Ms Watson suffered extensive stab wounds to the face, neck, chest and right hand. The wounds included a wound to the neck, with complete transection of the trachea and oesophagus and extensive damage to the vascular structures of the neck; another stab wound on the right of the neck, causing damage to the right internal jugular vein and right common carotid artery; and two stab wounds which had penetrated the chest cavity, one of which had completely transected the right internal thoracic artery. There were also defensive wounds on Ms Watson's hands.
    

Proof of the Charge

26. The onus falls on the Crown to prove, beyond reasonable doubt, the elements of the offence of murder with which the accused has been charged. They are that:
    

1. Helen Watson died.

2. That her death was caused by the acts of the accused, by multiple stabbings.

3. That at the time of committing those acts the accused i ntended either to kill Helen Watson, or at least intended to cause her grievous bodily harm.

27. As I have said, the accused has the benefit of the presumption of innocence. The Crown must prove all elements of the offence. There was no issue concerning proof of any of the elements of the offence between the parties.
    
28. On the evidence, I am satisfied that it must be concluded that Ms Watson's death was caused by the fatal stab wounds which she received on 10 March 2010 and that those wounds were inflicted by the accused.
    
29. When the evidence of what the accused himself said and did that day is considered in light of what various witnesses observed, and what the autopsy report disclosed, I am satisfied that it is beyond reasonable doubt that the accused, by his acts in repeatedly stabbing Ms Watson, caused her death while possessing the requisite intent, namely of killing her.
    

The defence of mental illness

30. The defence of mental illness arises to be considered in accordance with s 38 of the Mental Health (Forensic Provisions) Act . That section provides for a special verdict that an accused person is not guilty by reason of mental illness. It provides that if the evidence at the trial establishes that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done, then, if it appears that the person did the act, but was mentally ill at the time, a special verdict that the accused person is not guilty by reason of mental illness, must be returned.
    
31. If a special verdict of not guilty by reason of mental illness is returned, the Court may remand the person in custody until the making of an order under section 39 of the Mental Health (Forensic Provisions) Act in respect of the person.
    
32. The onus of proof of a defence of mental illness rests on the accused, on the balance of probabilities (see Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659). The term 'mental illness' is not defined in the Mental Health (Forensic Provisions) Act. The test which must be applied is that discussed in R v M'Naghton (1843) 10 CI & F 200 [8 ER 718]. 'Mentally ill' in this context means suffering from a 'defect of reason' or 'a disease of the mind', with the result that the accused did not know the quality and nature of the physical acts which he was doing, or alternatively, if he did know, that he did not know that what he was doing was wrong. Knowing what is wrong is not the same as knowing that the act committed is against the law (see Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 367).
    
33. In this case there is no question that the accused was suffering paranoid schizophrenia at the time he caused Ms Watson's death. There is no suggestion that the accused did not know the quality and nature of the physical acts, which led to Ms Watson's death. The defence was pressed, on the basis that owing to the disease of the mind from which he suffers, that when he caused her death the accused did not know that his actions were morally wrong, and prevented him from thinking rationally about his actions or the consequences of them.
    
34. In R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-90, Dixon J of the High Court explained what the accused who raises such a defence must prove. His Honour explained at 189 - 90:
    

"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."

35. The questions raised by the defence relied on must be answered in the context of the evidence as to the accused's outward conduct at the time, which I have dealt with, as well as by reference to the medical opinions of the psychiatrists who have examined the accused, considered in the light of his medical history.
    

The accused's history of mental illness

36. The evidence showed that the accused has a long history of mental illness.
    
37. In November 2003, he was an involuntary patient at Chisholm Ross Centre, after having been scheduled by a doctor at Goulburn Base hospital. A diagnosis of Schizophreniform Psychosis was made, with problems with cannabis use noted. He was discharged in December, when Community Mental Health follow up was recommended, as well as drug and alcohol counselling. In July 2004, when he saw Dr Ilchef, a consultant psychiatrist, there had been no such follow up and he was diagnosed as meeting the criteria for schizophrenia, having had active psychotic symptoms for more than six months.
    
38. On further examination in September 2004, Dr Ilchef was concerned about the accused's state and in October, a marked deterioration was noted, after a reduction in medication, with the accused experiencing ongoing auditory hallucinations, and persecutory beliefs.
    
39. In January 2005, he was still experiencing persistent psychotic symptoms and was having difficulty with prescribed medication. Fortnightly injections were then commenced and in early May, Dr Ilchef noted that there had been good response to that medication. On 26 May, however, a nurse at Springfield House, where the accused was obtaining his regular injections, noted that it was obvious that his delusional thoughts were quite strong; he couldn't control them; he admitted hearing voices and believed that he had given the command to bomb the twin towers.
    
40. By March 2006, Dr Ilchef noted that the accused was having persistent psychotic symptoms, including auditory hallucinations; that he enjoyed some of them, and didn't want them to disappear entirely. They were passing by September, when Dr Ilchef noted that the accused said that he would miss the voices, if they were to stop suddenly.
    
41. In 2007, the accused's medication was again increased, but he was not always compliant and needed to be pursued by staff in order to ensure that he received his injections. In August, during a home visit, delusional ideas about 'Al Queada' were noted. It was observed that the accused was hearing voices, many from within, and that his conversations with them, upset Ms Watson. Over the following months, Ms Watson indicated to medical staff that the accused's symptoms were increasing. He did not attend an appointment with Dr Ilchef in October and his attendance for injections were also erratic and had to be pursued.
    
42. By July 2008, Dr Ilchef was of the view that the accused's medication was not adequately treating his psychotic symptoms. During a home visit by his case manager in September, he presented as guarded, hypervigilant and with delusional ideation, believing that he was receiving injections at the police station, which were wiping his mind of memories and that those injections were the consequence of illegal activity. He was closely monitored over the following months. In October, Dr Ilchef observed that he was thin, weary, taciturn and continuing to have complex psychotic experiences, including perceptional disturbances and delusions. Increased medication was considered but not implemented. Increasing reluctance to attend for injections emerged.
    
43. On 18 February 2009, the accused had received no injections since 15 January. On attendance for an injection he was displaying delusional symptoms, reporting that:
    

"he knows about the magic book that is in everyone's head but is no longer under a spell, that his lawyer is American and is probably a Hell's Angel."

44. The accused did not attend an appointment with Dr Ilchef in March and was again non-compliant with his medication. He informed his case manager by phone that he was not taking medication and was 'heaps better off'. A home visit was attempted, but he did not answer the door. When Ms Watson was telephoned she advised that he was hallucinating and delusional; telling her amongst other things that she wasn't his mother and calling the operator to obtain the 'phone number of Hell's Angels'. On 12 May, Ms Watson advised that the accused was significantly paranoid and at times she had to lock him out of the house and that she had also herself stayed elsewhere.
    
45. A home visit was conducted and on 14 May, with the assistance of four police officers, a formal assessment was made of the accused. Ms Watson advised that he had threatened to kill her on the previous Saturday evening and had accused her of raping him. Three knives were found hidden in his caravan, but he denied having them. He was scheduled and transported to the Chisholm Ross Centre for assessment. On 22 May, a six month control order was made, requiring him to meet at least twice weekly with his case manager, to attend appointments with Dr Ilchef at least three times per month and to adhere to his prescribed medical regime. He was then released.
    
46. In early June he was reviewed. The accused sought to reduce his medication, which was declined. Later in June, Dr Ilchef found no clear evidence of positive psychotic symptoms. The accused asked about stopping his medication in six months' time and was advised that he required long term medication. In September he again sought to change his medication, which was refused. Later in September, a change to oral medication was approved, with a further six months Community Treatment Order recommended by Dr Ilchef, to ensure a safe transition to such medication. That was granted in November. In December a reduction of some medication was approved, with close contact to be maintained by his case manager, to monitor any deterioration in his mental state.
    
47. Between December 2009 and February 2010 there was, however, no contact with the accused, while his case manager was on leave. On 9 February, he was observed to be doing well. In March, a further reduction in medication was approved by Dr Ilchef, with his case manager to monitor him more closely over the next few months. There was, however, no further contact with him before Ms Watson's death.
    

The Medical Assessments

Dr Lewin

48. Dr Lewin provided a report in March 2011, having examined the accused on two occasions. He considered various of the material now in evidence, as well as Dr Nielssen's July 2010 report, the accused's medical record while under the care of Professor Owen and Dr Ilchef, outpatient psychiatric nursing notes, his Justice Health clinical file, and psychiatric assessments undertaken in prison, by a Dr O'Dea.
    
49. Dr Lewin noted the accused's report of having first experienced mental symptoms in 2000 and an earlier extensive history of marijuana use, from age 14 years. He had tried ice in 2008, but had not used such drugs in 2009 or 2010. He also reported no marijuana use for two to three years before his mother's death, but Dr Lewin noted that there were other reports in the documents he had reviewed.
    
50. The accused recounted that his first hospital admission was associated with marijuana use. He was then experiencing paranoia and hearing voices. After treatment in hospital for a month, he was discharged, without follow up. His marijuana use then continued intermittently. His attempts to resume work failed. He was unsure about the times of his later hospitalisations, but recalled that this had occurred after he had experienced violent impulses and had threatened his mother, who he thought was raping him and doing bad things. After discharge, he saw a Community Mental Health nurse monthly.
    
51. The accused reported being treated with oral medication and by injection, with Dr Ilchef changing medications and dosages over time. In 2010, he described being delusional, hearing voices and instructions conveyed by Al Qaeda. He was being given instructions to harm people. He was discharged from hospital in early 2010, but he continued hearing voices on a daily basis.
    
52. In the weeks leading up to Ms Watson's death, the accused claimed he was not drinking alcohol, and had ceased taking marijuana or other drugs. He was experiencing persistent phenomena, including believing that Ms Watson was not his mother; that she had hurt him before and had raped him in his sleep. When asked about his mental state in the days leading up to her death, he said 'I don't really know for sure. What I done, it was not a good thing. I should not have done it'. He described having had violent outbursts, which he attributed to his medication. He felt angry, believing '[p]eople were against ya ... everyone was against ya'. He explained that this included his mother and doctors. He believed that when he told them the medication was not right, the doctor just 'fiddled' with it.
    
53. The accused also described voices making him do things, against his best interests, including throwing out things such as CDs or a belt buckle. He tried to ignore the voices, but sometimes followed the instructions. He also explained his use of the name 'Nostradamus' and his firm belief that his mother was not his real mother and that he had received visits from a couple, who identified themselves as his real parents.
    
54. The accused had limited recollection of the events of the day of Ms Watson's death. He had no memory of a knife and could not remember his thoughts leading up to her death. He could recall ringing the police and telling them he had killed someone.
    
55. The accused also had memories of taking medication in the preceding days, which he found uncomfortable and distressing. He described feeling angry and dizzy and remembered believing the medicine was wrong for him. He reported pacing and a general feeling of being unsettled all the time, and feeling compelled to move, being unable to sit still, with a compulsion to walk. Dr Lewin was of the view that this was consistent with a history of Akathisia, a common complication of the use of neuroleptic medication, often experienced as intensely distressing.
    
56. The accused described similar symptoms on an ongoing basis over previous months, but reported that he had not described them to Dr Ilchef. What he told Dr Ilchef about, was his thoughts of getting off the medication, so that he would feel better and could fix up the house. He reported that in the months preceding Ms Watson's death, his thoughts were not directed towards hurting her and he had no plans to harm her. At that time he was attending all his appointments, endeavouring to reduce his medication, which he was taking regularly, as prescribed. Dr Lewin observed, however, that the accused was clearly unsure of the dates and the time sequence of important events.
    
57. As to his mental state in March 2010, the accused recalled being violent in January and February, after he ceased receiving injections and transferred to oral medication. He reported sometimes telling Dr Ilchef about the voices he heard and his symptoms worsening, but said that sometimes he withheld the information from Dr Ilchef, because he feared the medication being increased. He wanted to get off it, believing that it did not help him and that he did not like the feelings it gave him.
    
58. The accused also described the reduction in medication in the two days preceding his mother's death, as worsening his symptoms. Dr Lewin noted that there was no independent confirmation of this history, but that such a pattern of worsening Akathisia, was consistent with clinical experience.
    
59. The accused said that while he was getting on well with his mother in the weeks before and had not had thoughts of violence, in the days before her death, the voices were hounding him constantly. Dr Lewin observed that the Community Mental Health Service Clinical notes recorded that his family were particularly concerned at this time, taking him to the appointment with the treating psychiatrist.
    
60. The accused could not recall what he then reported to Dr Ilchef, but said that he did not approach him with a plan of trying to persuade him to stop the medication. His memory had become clearer since, with changed medication and he could remember 'crazy talk' when interviewed by police. He said the name 'Satan Nostradamus' had just come to him.
    
61. Dr Lewin noted that with treatment while in prison, the accused described the voices having settled, feeling better overall, memory and cognition improvement and that he had no current persecutory, delusional ideas. Dr Lewin outlined the basis of his assessment that in March 2011, Mr Watson had sufficient capacity to be able to decide what defence he would rely upon and to make his defence and his version of the facts known to the Court and to his counsel.
    
62. Dr Lewin diagnosed that the accused was suffering from chronic paranoid schizophrenia, against a background of polysubstance dependence. His opinion was that there was abundant evidence of delusional thinking, during the accused's two interviews, when he gave a description of elaborate and complex patterns of persecutory delusions in the past, which he appeared to repudiate, but a number of which he continued to cling to.
    
63. Dr Lewin noted emotional blunting, poverty of thought, and a continuing acceptance of bizarre beliefs, including delusional beliefs about Ms Watson's identity and her repeated sexual assaults of him, which the accused found unremarkable.
    
64. On Dr Lewin's diagnosis, in the period from discharge from hospital in May 2009 and March 2010, the accused had exhibited acute psychotic symptoms and objective signs of mental illness. His symptoms reportedly settled in late 2009 and early 2010, but he repeatedly complained of side effects of prescribed neuroleptic medication.
    
65. In his report to Dr Ilchef three days before Ms Watson's death, the accused had reported being in good spirits, with no psychotic symptoms reported. A reduction in medication dose was then prescribed. The accused had no memory of his state on the day of Ms Watson's death, but was described by Dr O'Dea, several days later, as being acutely unwell.
    
66. Dr Lewin concluded that at the time of Ms Watson's death it was 'more than likely' that the accused was acutely unwell. There was long term evidence that he was suffering from a chronic and severe mental illness, which was resistant to treatment. While the treating psychiatrist came to the conclusion in March 2010 that the accused's condition was then less than acute, that it was then acute was supported by the accused's long term abundant history of schizophrenia, including persecutory delusional ideas about his mother, the accused's behaviour at the time and Dr O'Dea's assessment.
    
67. In Dr Lewin's assessment, on the basis of the accused's cluster of persistent delusional ideas about his mother, which included that she sexually assaulted him during the night, his understanding of his actions was impaired. He was of the view that the accused appeared to have been unable to recognise that his behaviour in stabbing his mother, was morally wrong. The accused had described the ability to resist other delusional beliefs and to resist command hallucinations at other times, as well as a longstanding struggle with symptoms of Akathisia, which became more intense with the reduction of medication. In Dr Lewin's opinion, this may have magnified the intensity of the accused's response to his psychotic symptoms. Dr Lewin opined that '[i]t appears that he was then unable to think rationally as to the reasons which might guide him in a decision to act'.
    
68. Dr Lewin also noted that there had been improvement in the accused's condition, during a prolonged period of stable inpatient care at Silverwater, with use of antipsychotic medication and detoxification for marijuana and stimulant substances. In March 2011, he found that mild residual symptoms of his schizophrenia illness were evident, in a mild/subacute phase, at a time when the accused was not unduly sedated. Dr Lewin concluded, however, that the accused's severe illness had responded only partially to an 'energetic psychiatric treatment'; that he had made only a partial recovery and that he had gained only limited insight. In all of the circumstances, Dr Lewin was of the view that the accused had a basis for the defence of mental illness.
    

Dr Nielssen

69. Dr Nielssen also reviewed various of the material reviewed by Dr Lewin. He interviewed the accused in July 2010 and then noted a similar, albeit less detailed history to that later taken from the accused by Dr Lewin. At that time, the accused still adhered to the belief that Ms Watson was not his mother; that he had met his biological parents; and that his beliefs were not based on his symptoms of schizophrenia. He also then persisted in a belief that he was affected by 'mind books'. He did accept that hearing voices was probably a symptom of a mental illness. He described the ineffectiveness of the treatment he was receiving at the time of Ms Watson's death, in stopping the voices, which had told him how he'd been wronged and had suggested that he kill his mother.
    
70. The accused described a belief at the time of his mother's death, that she wasn't his mother and that she had arranged to have some blokes rape him, at a time when he had been in a trance. He had read the narrative in the police facts sheet and felt ashamed of himself and sorry for what he had done, but denied being related to his sister. He also denied any memory of the assault itself, although he could remember ringing the police and telling them things recorded in the record of interview. He explained his use of the name 'Satan Nostradamus'; his description of Ms Watson as 'a keep'; and his history of being at the Chisholm Ross Centre, after arguing with his mother.
    
71. The accused also gave an account to Dr Nielssen of his mental illness after heavy marijuana use and experimentation with ice. He described ongoing hallucinations and lapses in awareness and insisted that he was not related to his sisters and was not sure if they were his biological siblings.
    
72. Dr Nielssen described the accused as evidencing blunted reactions, consistent with chronic schizophrenia. He reported symptoms such as hallucinations, which were then decreasing in frequency, but continued expressing delusional beliefs. Impairment in intellectual function consistent with chronic mental illness was also noted. Dr Nielssen diagnosed that the accused was suffering chronic schizophrenia, based on his presentation and history.
    
73. Dr Nielssen also noted that he was not thought to be acutely unwell by Dr Ilchef, three days before Ms Watson's death. While he was then taking a relatively low dose of medication, which was further reduced, the accused reported then experiencing chronic auditory hallucinations and bizarre delusional beliefs.
    
74. Dr Nielssen was also of the view that the accused had a defence of mental illness, given his severe form of schizophrenia, a disease which produced a pattern of abnormality of the mind, recognised in law as a disease of the mind. The effect of an exacerbation of his chronic and largely treatment resistant form of schizophrenia meant that at the time of Ms Watson's death, he was unable to recognise that his actions were morally wrong. Nor could he reason with sense and composure about the consequences of his actions. Dr Nielssen concluded that the accused had only made a partial recovery and continued to express delusional beliefs.
    

Conclusion on the defence

75. Given the circumstances of Ms Watson's death, and how the accused came to have had his medication reduced at a time when he was acutely unwell, I have outlined in some detail the basis for the consistent opinions held by Dr Lewin and Dr Nielssen, that the defence of mental illness is available to the accused. Having considered all of the evidence, I am satisfied that the experts' opinions were persuasive and that it must be accepted that the accused has established that as a consequence of his mental illness, when he killed his mother he was unable to understand that what he was doing was wrong.
    
76. The accused suffers from a persistent, treatment resistant form of paranoid schizophrenia. As a result, he has long suffered from paranoia and persistent hallucinations and delusional beliefs, including long held beliefs about his relationship with his mother and the serious harm she has done him. He also appears to have suffered a well understood reaction to the medication he was being treated with. The result was that in early 2010, at a time when he was acutely unwell, he was apparently not frank with his treating psychiatrist, as to either the ongoing symptoms of the disease which he was suffering, or the side effects of the treatment he was receiving.
    
77. The accused was then seeking to have his medication reduced, in order to alleviate these side effects. In March 2010, the accused was on a seemingly low dose of medication, which was then reduced even further, even though he was in fact acutely ill. The further reduction of his medication appears to have exacerbated the side effects which he was experiencing. The end result was that, at the time that he killed his mother, he was labouring under such hallucinations and delusional beliefs, that it must be accepted that he was not able to understand that what he was doing, when he caused her death, was wrong.
    
78. Even the treatment which he has since received while in prison, which appears to have had positive effects, has not been completely effective in addressing his persistent delusional beliefs, which are the ongoing symptoms of the illness from which he suffers.
    

The consequences under the Mental Health (Forensic Provisions) Act 1990

79. Section 37 of the Mental Health (Forensic Provisions) Act requires that consideration be given to the legal and practical consequences of a finding of mental illness, including the existence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act 2007 and its functions with respect to forensic patients.
    
80. The effect of an order made under s 38 is that provided for in s 39 of the Mental Health (Forensic Provisions) Act, which 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."

81. In this case the accused sought no order for his release.
    
82. The role and responsibilities of the Mental Health Review Tribunal have been repeatedly described. Hall J gave such an explanation in Regina v Coleman [2010] NSWSC 177, an explanation which I respectfully adopt:

"69 The legal and practical consequences of a finding that the accused is "not guilty on the ground of mental illness" may be shortly stated.

70 The statute which governs cases like this, namely, s.39(1) of the Mental Health (Forensic Provisions) Act , requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal.

71 The Mental Health Review Tribunal consists of a president and his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task.

72 The Tribunal is required to review the accused's case as soon as practicable after an order is made for his detention in strict custody. The Tribunal may make orders as to his continued detention, care or treatment, or as to this release.

73 The Tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused.

74 Where an order for release is not made, the Tribunal orders result in continued detention, care and treatment in a place and manner specified by the Tribunal.

75 After the initial review, the Tribunal must, at least once every six months, again review the case and make orders as to the accused's continued detention, care or treatment in a hospital, prison or other place or as to his release.

76 If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for his apprehension, care and detention.

77 The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in educational and therapeutic programmes, to ensure that the accused is properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.

78 Security conditions (as necessary) are in place while the accused is detained in a hospital, prison or other place or if he is allowed to be temporarily absent from the place of detention.

79 The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered."

Conclusion

83. For the reasons I have explained, I am satisfied on the evidence, on the balance of probabilities, that the accused is not guilty of the offence with which he has been charged, on the ground of mental illness.
    

Orders

84. I find that at the time that the accused committed the acts which caused the death of Helen Fay Watson, that he was mentally ill so as not to be responsible in law for his acts. I am accordingly required to return a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990.
    
85. Benjamin James Watson, upon the charge that on 10 March 2010 at Lake Bathurst in the State of New South Wales you did murder Helen Fay Watson, pursuant to the provisions of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness.
    
86. I order that Benjamin James Watson be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, in Long Bay Prison Hospital or such other facility as the Mental Health Review Tribunal may determine, until released by due process of law.
    
87. The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the judgment and orders made by this Court and to provide the Tribunal with copies of the exhibits in these proceedings.
    
88. Finally, I extend my deepest sympathy to Ms Watson's family and friends who must all mourn her tragic death. What the evidence has revealed has shown the terrible loss which they have unquestionably suffered, as well as the longstanding, difficult circumstances which led to that awful end result. I hope that it is of some small comfort to them to know how our society has acted to deal with her death, and that the circumstances of her sad passing has not gone unnoticed.
    

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