R v Macguire

1. [1]

   On 11 December 2019 Matthew Terrence John Macguire was committed from Burwood Local Court to this Court for trial on a charge that on 8 April 2019 at Silverwater he did murder Ryan Fennell. The particulars of the charge are that whilst the accused and the deceased were sharing a cell in the Metropolitan Remand and Reception Centre (“MRRC”) at Silverwater prison, the accused carried out a sustained attack on Mr Fennell, inflicting severe head injuries that resulted in his death. On 7 December 2020 I conducted a special hearing of the charge pursuant to s 19(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Forensic Provisions Act”). These are the Court’s reasons for the verdict and orders that will be entered pursuant to my determination under that section.

2. [2]

   On 20 April 2020 Hidden AJ found the accused unfit to be tried and referred the matter to the Mental Health Review Tribunal as required by the Forensic Provisions Act. His Honour remanded the accused in custody at the Forensic Hospital, subject to any order of the Tribunal. The Forensic Hospital, located at Long Bay, is referred to by various names throughout the medical records and reports in the case. In these reasons I will convert all such references to “the Forensic Hospital”. On 20 July 2020 the Tribunal determined that the accused was “presently unfit and will not become fit to be tried for the [offence] with which he has been charged within 12 months of the Court’s finding of unfitness”. The Tribunal determined that he should be detained at the Forensic Hospital for care and treatment.

3. [3]

   The Tribunal’s determination was duly conveyed to the Office of the Director of Public Prosecutions. On 11 August 2020 the Director informed the Court that he intended to proceed with the charge. Accordingly the Court listed the special hearing under s 19(2). That section is in the following terms:

4. [4]

   No election for a jury was made under s 21A of the Forensic Provisions Act. The special hearing was therefore conducted by judge alone. As provided for in s 21(3)(a) of the Act, the accused was taken to have entered a plea of not guilty. He was represented by counsel who informed the Court from the outset that he would submit that the proper verdict on the evidence should be not guilty on the ground of mental illness. The Crown prosecutor opened on the basis that he accepted that should be the verdict.

5. [5]

   The effect of ss 21B and 22(1)(b) of the Act is that one of the verdicts available to a judge who determines a special hearing without a jury is: not guilty on the ground of mental illness. The defence of mental illness falls for consideration if I am first satisfied beyond reasonable doubt that the accused caused the death of the deceased by deliberate acts: Hawkins v The Queen (1994) 179 CLR 500; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32].

Circumstances of the homicide

1. [6]

   The accused was on remand at the MRRC Silverwater from a date prior to 24 January 2019, on charges of assault with act of indecency and destroy or damage property. On 24 January he was transferred to the Forensic Hospital by Order of the Secretary of the Department of Health pursuant to s 55 of the Forensic Provisions Act. On 26 March 2019 the accused was transferred back to the MRRC, having been assessed at the Prince of Wales Hospital as not being mentally ill but suffering from a severe personality disorder. The summary of the accused’s psychiatric history given later in these reasons shows that that assessment was contradicted by every other diagnosis that had been made of the accused since 2004. It was contradicted by uniform medical opinions since 2003 that he suffers from schizophrenia and repeated classification of the disorder as treatment resistant since 2006. The view that he was suitable to be returned to MRRC because he was not mentally ill on 26 March 2019 was inconsistent with the records of over 20 admissions to psychiatric hospitals since the year 2000. The conclusion flew in the face of numerous reports of treating doctors concerning the persistence of the accused’s diagnosed schizophrenia.

2. [7]

   The shared cell in which the accused attacked the deceased was under Closed Circuit Television (“CCTV”) surveillance. The cell was not within a dedicated mental health care or screening unit however inmates within the relevant area were subject to heightened monitoring. Mr Fennell was placed in the cell with the accused on 8 April 2019. He had been on remand since 4 March 2019 for breach of a bond and common assault. The evidence tendered at the special hearing contains little information about Mr Fennell.

3. [8]

   The Crown Case Statement was tendered by the prosecutor. The accused’s counsel accepted that it could be relied upon by the Court as evidence of the truth of its contents. The detailed description in the Statement of the accused’s attack upon Mr Fennell is drawn from the CCTV recording. There can be no doubt about what occurred. While the two men were in the cell on 8 April 2019, at 6:25pm the accused wrapped his arm around the deceased’s neck in a chokehold, then dragged him from where he had been sitting on his bed to the floor of the cell. The accused inflicted multiple blows with his right hand to the deceased’s head. This apparently rendered the deceased unconscious and he lay in a prone position. The accused then struck the deceased’s face against the floor of the cell multiple times. He used his body weight to place pressure on the deceased’s upper torso and neck. The accused again struck the deceased’s face against the floor of the cell many times before standing up and stomping on his head and neck repeatedly. By 6:29pm the deceased lay motionless. The accused then desisted and covered the deceased with a blanket. After about 4-5 minutes the accused returned to the deceased and inflicted approximately a further 50 stomping blows to his head and neck over the space of another two minutes. Another interval of a few minutes passed before the accused resumed stomping on the deceased between 6:41pm and 6:47pm and again between 7:16pm and 7:20pm.

4. [9]

   The above events were recorded but the images from the camera were not being monitored at the time when the attack upon the deceased was carried out. Corrective Services staff attended the cell at about 7:24pm and ascertained what had occurred. The accused was removed from the scene and police were called. Mr Fennell sustained severe head injuries from the attack. It had continued intermittently over approximately 45 minutes. He died as a direct result of neck compression with blunt force craniofacial trauma. I am satisfied beyond reasonable doubt that his death was caused by the deliberate acts of the accused, carried out with intent to kill.

The mental illness defence

1. [10]

   Section 21(1) of the Forensic Provisions Act requires that the special hearing be conducted “as nearly as possible as if it were a trial of criminal proceedings”. Section 38 provides for the defence of mental illness. It is to be applied by me as it would be applied by a jury in a criminal trial. The section is in these terms:

2. [11]

   There has been tendered a wealth of evidence tending to show that, at the time of the homicide, the accused “was mentally ill”. Later in these reasons I will summarise the accused’s psychiatric history prior to 8 April 2019 and the retrospective assessments of his mental state that have been made since that date. It is necessary first to note what must be proved on the accused’s behalf in order to show that, by reason of such mental illness as may have affected him, he was “not responsible, according to law, for his … action at the time when the act was done”. Although this is not spelt out by statute, it is well established that once the defence has been raised it is to be determined in accordance with the rules laid down in R v M’Naghten (1843) 8 ER 718. Under those rules the accused must prove, on the balance of probabilities, that at the time he inflicted the fatal injuries he was labouring under such a defect of reason, arising from a disease of the mind, that he did not know the nature and quality of his acts; or, if he did know it, he did not know that what he was doing was wrong.

3. [12]

   In The King v Porter (1933) 55 CLR 182 Sir Owen Dixon applied the M’Naghten rules when he directed a jury that in order to displace the presumption that a person is “of sufficient soundness of mind to be criminally responsible for his actions”, the accused must establish “that his state of mind must have been one of disease, disorder or disturbance”. The following extract from the summing up in The King v Porter has continuing authority as an elaboration of the principles:

4. [13]

   The accused in the present case was questioned by police within hours of the homicide. His answers, considered with the benefit of the forensic psychiatrists’ opinions that have been tendered by the Crown and defence, have a bearing on each of the two possible deficiencies of reason, either of which may substantiate the mental illness defence under the M’Naghten rules. The accused’s counsel does not submit that the accused lacked understanding of the nature and quality of his violent acts; only that, by reason of psychotic illness, he was unable to understand that what he was doing was wrong.

The accused’s recorded interview

1. [14]

   Detective Sergeant Tesoriero and Detective Senior Constable Leite conducted an electronically recorded interview with the accused in a police room within the prison, from 2:00am to 2:39am on 9 April 2019. The Crown tendered the recording and the transcript of this interview, throughout which the accused manifested considerable disorder of thought. At the commencement of the interview he was asked his name and gave these answers (Q2, Q5, Q6)

2. [15]

   Some of his subsequent answers were meaningless jumbles of verbiage. However, he answered a number of questions in a manner that indicated that he knew he had killed his cell mate and how he had done it. Questions 48-55 were answered as follows:

3. [16]

   At this point the accused demonstrated placing a chokehold on a person and then stomping on his neck. He stood up from the chair in which he was seated for the interview, laid the chair on the floor of the room and demonstrated. The demonstration was clear and deliberate. Nine minutes later in the interview the accused again described the way he had attacked the deceased, this time including a demonstration of how he had raised the deceased’s head and struck it to the floor of the cell repeatedly. These demonstrations were in accordance with what was recorded on the CCTV. After giving the second demonstration the accused said that he had checked whether the deceased was dead by taking his pulse. He used his right hand to point to the area on his left wrist where a pulse would usually be taken. He said that he continued stomping on the deceased, “To end his life” (A145), and that he was trying to break his neck (A146). He said that this took half an hour to an hour (Q148-149).

4. [17]

   In the course of the interview the accused gave varying and fantastic explanations of why he had killed the deceased. These answers are relevant to the assessment that must be made of whether he knew his acts were wrong. First, his answers to Q47-51, quoted above, were to the effect that he attacked the deceased because he had received a message that he should do so. At Q61-89 he said that he had been in fear of the deceased as a result of messages he received. His answers in this passage included the following:

5. [18]

   He gave answers concerning “undercover” as follows:

6. [19]

   Still on the theme of having killed the deceased out of fear and because he received messages to do so, he said in answer to Q97, “Well, it was either me or him”. However, later the accused said that the deceased had asked to be killed:

7. [20]

   Answers to similar effect were given later in the interview:

8. [21]

   Despite the above delusional explanations for his conduct the accused gave some answers to the effect that his actions were wrong but ending with a statement that he did not know right from wrong:

9. [22]

   The incoherence of the accused’s thought, despite apparently meaningful answers at times, was demonstrated in the following passage towards the end of the interview:

Psychiatric history of the accused

1. [23]

   The defence of mental illness is concerned with the accused’s condition of mind at the time of the homicide. However, his psychiatric presentation and treatment over many earlier years is relevant for the light it sheds upon how deeply and persistently his mind was deranged by April 2019. The longevity and entrenchment of the accused’s mental disturbance is probative of his incapacity for reasoned understanding at the time in question. The Crown tendered a joint report of Dr Robert Reznik, Consultant Forensic Psychiatrist, and Dr Donna Button, Locum Psychiatric Visiting Medical Officer, dated 28 February 2019. There were also tendered two psychiatric reports that had been placed before Hidden AJ for the purpose of determining whether the accused was fit to plead, namely, Dr J Adams’ report of 15 October 2019 and that of Dr A Martin dated 29 November 2019. Counsel for the accused tendered a report of Dr Olav Nielssen dated 15 June 2020. From all of this material, the accused’s psychiatric history is drawn, as follows.

2. [24]

   The accused was born in January 1984 and grew up in Tumut. He was diagnosed with Attention Deficit Hyperactive Disorder at the age of 10 and was medicated for this. He underwent a further mental health assessment at the age of 12, in 1996, after he had assaulted his mother. He has reported to treating psychiatrists that at the age of 13 years, in 1997, he witnessed his father’s suicide by hanging and that during his youth he was sexually abused by an uncle. After leaving school he lived in Goulburn, Wagga Wagga, Tumut, Yass, Orange, Talbingo and Cooma.

3. [25]

   The accused’s first contact with mental health services was in 2000, at the age of 16. He evidently had a disposition to mental illness and at 16 he had commenced substance abuse. His criminal history commenced with a charge in the Children’s Court at the age of 17. The accused’s first admission to a psychiatric hospital was in 2003. By 2004, at the age of 20, he had been diagnosed with schizophrenia. During 2005 he deliberately harmed himself on multiple occasions and made a number of attempts on his own life, including an attempt to set himself on fire. In 2005 he was trialled on Clozapine, an antipsychotic medication, but this had to be discontinued because he developed severe myocarditis. By the age of 22, in 2006, his doctors had found his schizophrenia to be treatment resistant. He has had more than 20 admissions to mental health facilities in Wagga Wagga, Goulburn and Orange, including a single admission of 20 months at a facility in Orange in the period 2011-2012.

4. [26]

   From his first contact with mental health services in 2000 the accused frequently presented to emergency departments while intoxicated and aggressive. Dr Nielssen has made the following observation concerning the accused’s past use of cannabis and methamphetamine:

5. [27]

   Numerous of the accused’s psychiatric admissions over the 19 years up to date of this homicide have been in the context of substance abuse and non-compliance with treatment. In addition to treatment resistant schizophrenia, the accused’s diagnoses have included poly-substance abuse, post-traumatic stress disorder and antisocial personality traits. The accused has come before the courts on many occasions, including for violent offending, and at times the Local Court has diverted him from the criminal process to psychiatric assessment and treatment, pursuant to Pt 3 of the Forensic Provisions Act.

6. [28]

   From June to December 2016 the accused was an involuntary psychiatric inpatient at Cumberland Hospital, North Parramatta. That admission was precipitated by his presentation at a police station in Sydney, where he became aggressive after stating that he was searching for his sister. During the admission to Cumberland Hospital the accused was administered electroconvulsive therapy (“ECT”) on nine occasions. Drs Reznik and Button report that these treatments “improved his acute psychotic symptoms but he continued to exhibit acute behavioural disturbances”. On the evening of his discharge from Cumberland Hospital in December 2016 he overdosed on medication. He was re-admitted for three weeks and then transferred to Wagga Wagga psychiatric ward.

7. [29]

   On 16 February 2017 the accused was detained at Junee, the ground of his arrest on that occasion not being apparent from the evidence tendered in the special hearing. According to the report of Drs Reznik and Button, after a week in detention at Junee he was transferred to MRRC, Silverwater for assessment, because he was behaving in a bizarre fashion and manifesting psychosis. Justice Health’s records from this time state that he reported alcohol and marijuana use prior to his arrest, ongoing auditory hallucinations and poor sleep. At the MRRC he repeatedly kicked his door in response to voices and later commenced head-banging. Over nearly three months of detention on remand the accused’s psychotic symptoms persisted despite various trials of psychiatric medication. His behaviour was thought disordered, volatile and violent. He was scheduled to the Forensic Hospital on 19 May 2017.

8. [30]

   At the Forensic Hospital the accused initially appeared to have settled and was cleared for a step down to normal cell conditions but he then harmed himself by scratching the inside of his forearm with his fingernails, which he at first said was due to stress and later attributed to hearing voices. Several subsequent attempts to step down the conditions of his detention were thwarted by his disruptive or self-harming behaviour such as kicking doors and head-banging. On 13 June 2017 the accused appeared to have collapsed and to be unresponsive in the courtyard of the facility but he was diagnosed as having had a pseudoseizure and was placed on a management plan for feigning. He remained behaviourally disturbed and was unpredictably violent towards others through to September 2017. The report of Drs Reznik and Button does not state when he was discharged from the Forensic Hospital on this occasion but, early in the next year, he was again at the MRRC, Silverwater.

9. [31]

   In March 2018 the accused was assessed by Dr Adams in the Mental Health Screening Unit at Silverwater. The doctor observed at that time that he was “floridly psychotic … thought disordered, so much so that full conversation [was] not possible”. Shortly after this assessment he was again involuntarily transferred to the Forensic Hospital. He was discharged from there on 22 May 2018 and released from custody on 16 July 2018.

10. [32]

    Between 21 July 2018 and 1 November 2018 the accused was admitted to the psychiatric ward of Goulburn Base Hospital, during which time persisting symptoms of psychosis and problematic behaviour including violence were observed. A treating psychiatrist noted that this admission was “marked by significant behavioural disturbance and aggression”. He was trialled on various antipsychotic and mood stabilising medications but the view was formed that his “risk of misadventure and aggression is chronic due to his limited coping skills” and that the risk was “unlikely to change with prolonged admission to hospital”.

Psychiatric observations close to 8 April 2019.

1. [33]

   At 28 February 2019 when Drs Reznik and Button prepared their joint report, the accused was again detained as an inpatient at the Forensic Hospital, having been transferred there from the MRRC on 24 January 2019 as mentioned earlier in these reasons. The doctors’ joint report was prepared for consideration by the Mental Health Review Tribunal at a hearing under s 59 of the Act to determine whether the accused was a mentally ill person and whether he should be transferred back to a correctional facility.

2. [34]

   Having recited much of the above history the doctors concluded their report of 28 February 2019 as follows:

3. [35]

   Dr Nielssen’s report, based on medical records, recounts the removal of the accused from the Forensic Hospital to Prince of Wales Hospital on 25 March 2019 to determine whether he was mentally ill, under s 33 of the Forensic Provisions Act. Dr Nielssen says that whilst at Prince of Wales it was reported that the accused “nearly strangled a fellow patient”. As described earlier in these reasons, on 26 March 2019 he was assessed as not being mentally ill and was returned to police custody and taken to MRRC Silverwater. It is difficult to understand how that assessment could possibly have been made having regard to the history referred to above and taking into account the comprehensive and then current report of Drs Reznik and Button.

4. [36]

   Dr Nielssen has noted the following chronology of events shortly prior to 8 April 2019, from custodial and Justice Health records:

5. [37]

   On the day after the homicide, being 9 April 2019, the accused was assessed by Dr Morgan, psychiatrist, and by Dr Andrew White. The latter completed a certificate under the Mental Health Act 2007 (NSW) to facilitate the accused’s transfer back to the Forensic Hospital. The certificate described the accused as “grossly thought disordered” and stated that he “described hearing voices of bikies, and receiving messages from TV and radio and having everybody being able to read his mind”. At this time Dr Morgan recorded the diagnosis as treatment resistant schizophrenia.

Post-homicide assessments

1. [38]

   The reports of Drs Adams and Martin are directed to the accused’s fitness to plead and not to retrospective assessment of his mental state at the time of the homicide. Their conclusions are nevertheless of some value in resolving the mental illness defence because they confirm continuity of the accused’s long-standing psychotic disorder, from well before 8 April 2019 through to late 2019. When Dr Adams interviewed the accused on 26 September 2019 he was able to do so only through a hatch in the accused’s cell door because of the risk of violence, as then determined by staff of the Forensic Hospital. Dr Adams’ report includes the following:

2. [39]

   Dr Martin interviewed the accused at the Forensic Hospital on 25 November 2019. The following are extracts from his report:

3. [40]

   Dr Nielssen interviewed the accused by audiovisual link to Long Bay on 2 June 2020. The doctor obtained from the accused some history of the homicide but this was erratic and contradictory. The doctor also obtained the accused’s recollection of his psychiatric and medical history, his early background and his history of substance abuse. Importantly Dr Nielssen undertook a document review, particularly with respect to records of the accused’s behaviour in the three months prior to the homicide. Dr Nielssen drew these conclusions:

Verdict and orders

1. [41]

   I accept Dr Nielssen’s opinion, which I find well supported by the evidence of the accused’s psychiatric history, documented over 19 years prior to the homicide. The conclusion that the accused understood the nature and quality of his acts but that he was incapable of understanding that they were wrong is also supported by the content of the police interview conducted in the early hours of 9 April 2019. The accused has described the delusions that actuated him in varying terms. At times he has spoken of an instruction to kill, received through hallucinated voices. At other times he has referred to fear of attack by the deceased. In his interview with Dr Nielssen he included a perception that the deceased was armed with a knife. In other answers given to police the accused revealed a delusion that the deceased had asked the accused to kill him. I find the inconsistency and variability of these perceptions to be congruent with the delusional nature of all of them. None of what the accused has related as his reason for acting as he did has any point of contact with reality. His statements cannot be evaluated for their reliability by the normal measure of consistency in retelling. His inability to form any reasoned view at the time about why he was acting as he did rendered him incapable of understanding the moral wrongfulness of his acts.

2. [42]

   As this is not a sentence hearing no victim impact statements have been provided. The Court has been informed that Mr Fennell is survived by his mother and sister. Despite the concentration of attention upon the accused, in the evidence given at the special hearing and in these reasons, the Court has not lost sight of the sadness and loss for Mr Fennell’s family, knowing of his death in the appalling circumstances described here, while he was in custody for relatively minor infractions.

3. [43]

   In determining what verdict should be entered I take into account the legal and practical consequences of a verdict of not guilty on the ground of mental illness as summarised at par 6-270 of the Criminal Trials Bench Book published by the Judicial Commission of NSW. In particular, I note that:

4. [44]

   I am satisfied on the balance of probabilities that at the time the accused killed the deceased he was mentally ill, so as not to be responsible, according to law, for his actions. Accordingly, on the charge that the accused on 8 April 2019 at Silverwater did murder Ryan Fennell, the verdict of the Court is:

5. [45]

   The following order is made and will be entered forthwith: