R v Francis Herbert MURRAY

HIS HONOUR: Francis Herbert Murray has been indicted for the murder of David Cyril Dodman at North Gosford in this State on 1 June 2005. To that charge he has pleaded not guilty and has raised a defence of mental illness.

Pursuant to section 132(1) of the Criminal Procedure Act he has elected to be tried by a judge alone and the Crown has consented to that election.

Additionally, he has pursuant to section 184 of the Evidence Act 1995 admitted in writing that he committed the act which caused the death of David Dodman. In open court he orally confirmed that admission.

It is thus my task to find the facts of the matter and to determine first, if the Crown has established beyond reasonable doubt that the admitted act of the accused in killing David Dodman falls within the ambit of the crime of murder. Second, if so, has the accused established on a balance of probabilities his defence of mental illness within the framework of the Mc Naghten rules.

My task in finding the facts relating to the killing of David Dodman has been assisted by the tender of the Crown of a statement of facts, the contents of which were not challenged by Ms Zahra, solicitor, who appeared for the accused. Since reserving my decision I have read the case statements and materials tendered by the Crown as its case. Having done so, I find the Crown case statement is an accurate account of the facts relating to the killing of David Dodman by the accused and I have adopted the bulk of that statement as my findings of fact. I thus find as follows:- At the time of the death of David Dodman, the accused was a 22-year old single man and has been acquainted with the deceased’s son (Rick Dodman) and the Dodman family for many years. Towards the latter part of 2004 the accused became hostile towards the deceased’s son and on several occasions went to the family home at 2 Marangarni Avenue, North Gosford where he damaged property and provoked physical confrontations. The accused was admitted to hospital and diagnosed with a mental illness, having suffered a psychosis in January 2005. He was discharged after a short time, with instructions as to medication and case conferencing. Within weeks of being discharged the accused returned to work where he again, began to suffer delusions about the Dodman family. Shortly before 4pm, Wednesday the 1st June 2005, the accused went to the Dodman’s home, where he waited for the deceased to arrive home. When the deceased arrived home, the evidence suggests that the accused approached the deceased at the carport and a confrontation took place. This confrontation continued to the back yard of the premises at which time the accused stabbed the deceased multiple times to the head and neck. Neighbours witnesses the confrontation and stabbing and called the police. When police arrived they observed the accused sitting on the deceased, still stabbing the deceased. Police called on the accused to drop the knife and move away from the deceased. He complied and was subsequently arrested. Mr Dodman was deceased, as a result of multiple stab wounds inflicted to his head and neck. The accused was in an apparent state of shock and was conveyed to Gosford Hospital. Early attempts to speak with the accused by the police were unsuccessful, as the accused remained mute. Dr Giuffrida, forensic psychiatrist, has examined the accused and a report of the 26 August has been supplied by the Crown. It is Dr Giuffrida’s belief that at the time of the offence, the accused was labouring under a defect of reason, namely the delusional belief [that the Dodman family intended to seriously harm or kill him], arising from a disease of the mind, namely paranoid schizophrenia.

In the absence of the defence of mental illness I find that the Crown has established beyond reasonable doubt the elements of the crime of murder against the accused.

However, as I have said, the accused has raised a defence of mental illness. That defence is primarily based upon the opinion of Dr Michael Giuffrida, forensic psychiatrist, who was retained by the accused’s solicitors and secondly on the opinion of Dr Bruce Westmore, also a forensic psychiatrist, who was retained by the Crown.

The defence of mental illness, as it is now described, was defined in the celebrated case of R v Mc Naghten (1843) 10 Cl & Fin 200. As I have indicated earlier in these reasons the onus is upon the accused to establish this defence on a balance of probabilities. As a matter of law it is for the accused to establish that at the time when he committed the act which caused the death of David Dodman that as a result of a defect of reason from a disease of the mind he did not: (a) appreciate the true nature and quality of that physical act; or (b) that he did not know that what he was doing was wrong.

In Stapleton v The Queen (1952) 86 CLR 358 at 375 the High Court held that “wrong” in this context means wrong according to ordinary standards adopted by reasonable men.

Both Drs Giuffrida and Westmore, having received similar histories from the accused and from medical records, concluded that at the time he killed Mr Dodman, the accused was suffering from a mental illness namely paranoid schizophrenia.

I summarise the histories received as follows.

The accused is a young man, having been born on 5th September 1982. Following an uneventful schooling he obtained his HSC and commenced a diploma course in electrical engineering, which course he had nearly completed at the time he killed Mr Dodman.

Unfortunately, he commenced smoking cannabis at the age of 14 or 15 – a habit he persisted with until about the time of Mr Dodman’s death. He also was an infrequent ingester of amphetamines, but this was not his preferred drug. Additionally he would drink up to 10 schooners of beer at parties.

It seems that the accused commenced having delusional episodes in 2004. He concluded that his workmates at Energy Australia were implying that Rick Dodman (the son of the deceased) had been sleeping with a girl of whom he was fond. Despite Rick Dodman denying this allegation when the accused confronted him with it, the accused remained angered and resentful of Rick Dodman. So much so that the accused commenced a series of attacks on property belonging to the Dodman family. First he threw bricks at the Dodman family home, breaking windows. Second he poured timber stain over Rick Dodman’s car. Third, he attempted to set fire to that vehicle but was interrupted before he could due to his father getting his elder brother to intercept him. As a result of the second of these happenings the accused was arrested, but released on bail.

However following the third event the accused was admitted to the psychiatric unit (known as the Gunya Unit) at Wyong Hospital on 24th January 2005. He apparently was an inpatient at that hospital for some months. While there he told his treating psychiatrist that “something was telling him to go and damage his best friend’s property or him”. At the Gunya Unit a differential diagnosis of first onset schizophrenia and drug induced psychosis was made. He was placed on medication including an antipsychotic drug, Risperidone. His injection of medication apparently ceased on 13 April 2005.

To both psychiatrists the accused confirmed his delusional beliefs. His recollection of the killing of Mr Dodman was vague to them. Dr Giuffrida concluded as follows:- “It is clear first of all that Mr Murray suffers from a continuing and underlying psychotic illness of paranoid schizophrenia and at the time of the offence and in the months both before and afterwards he was experiencing the fixed false belief or delusion that Rick Dodman and his family meant to kill he or his family. Mr Murray therefore feared for the life and safety of he and his family. It is clear therefore that Mr Murray was labouring under a defect of reason, namely the delusional belief described, arising out of a disease of mind, namely paranoid schizophrenia, such that he did not know that what he was doing was wrong in killing the victim. The disease of mind of which Mr Murray suffered caused in my opinion a total loss of capacity to comprehend the wrongness of his act. He was at the time of the offence rendered incapable of comprehending the wrongness of the fatal act. I am therefore of the opinion that Mr Murray has available to him a Mc Naghten’s defence.”

Dr Westmore’s view was: “It is likely Mr Murray suffers from a paranoid schizophrenic illness. I believe that illness was present at the time of the homicide and that Mr Murray would have available to him the defence of mental illness and to the charge of murder. He was suffering from a disease of the mind which would have totally deprived him of his capacity to know that he ought not to do the act, to understand that his actions in killing the deceased was wrong. He is in my opinion fit to be tried and he will require long term supervision in a secure psychiatric facility.”

I am driven to the conclusion that the accused has on a balance of probabilities made out his defence of mental illness. Accordingly, my verdict is not guilty on the ground of mental illness.

This finding does not mean that Mr Murray will be at liberty at the conclusion of this trial. As a matter of law, I must order that he must be detained in strict custody in such place and such manner as to me seems fit until released by due process of law. While in custody he comes under the supervision of the Mental Health Review Tribunal. I believe it is of importance that I explain the function of that Tribunal - Composition of the Mental Health Review Tribunal The Mental Health Review Tribunal consists of a president or their 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. Functions of the Tribunal 1. To review Mr Murray’s case as soon as practicable after an order is made for his detention in strict custody and make a recommendation to the Minister for Health as to Mr Murray’s continued detention, care or treatment. 2. Only if satisfied that the safety of Mr Murray or that of any member of the public would not be seriously endangered by Mr Murray’s release may a recommendation for release be made. If there is such a recommendation, then the Minister for Health must notify the Attorney-General and, at the same time, furnish a copy of his notification to the Director of Public Prosecutions. If the Attorney-General makes no objection to a recommendation for release within thirty days after being so notified by the Minister for Health then, and only then, may an order be made for Mr Murray’s release, provided that the Minister for Police and Emergency Services are informed of the date of any such release. 3. Where release is not recommended, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal. 4. After the review referred to in note (1), the Tribunal must, at least once every six months, again review the case and make recommendations to the Minister as to Mr Murray’s continued detention, care or treatment in a hospital, prison or other place or as to his release. 5. In addition, the Tribunal must also review the case and make a recommendation to the Minister for Health if requested to do so by that Minister, the Attorney General, the Minister for Corrective Services, the Chief Health Officer or by a medical superintendent of a hospital. Again, the Tribunal must not recommend release unless satisfied as to the safety of Mr Murray or any member of the public. 6. If release is ordered, then it may be on conditions or unconditionally. On breach of a condition, or where the mental condition of Mr Murray has deteriorated so that he may be a serious danger to others a further order may be made for his apprehension, care and detention. 7. Security conditions (as necessary) continue whilst Mr Murray is in detention in a hospital, prison or other place or where he is allowed to be temporarily absent. 8. A person found “not guilty on the ground of mental illness” may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired by effluxion of time.

The orders of the Court are as follows: 1. The accused is not guilty of the murder of David Dodman on the ground of mental illness; 2. The accused be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law.