R v Biggs

BELL J : The accused, John David Biggs, was arraigned on 16 August 2007 on an indictment, which charged him with the murder of Rhonda Shirley Trainor on 2 November 2005 at Forbes. He pleaded that he was not guilty of that offence.

Prior to his arraignment, the accused signed an election pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) asking that he be tried by a judge alone. I was satisfied that before making the election the accused had sought and received advice about the election from his counsel. The Director of Public Prosecutions consented to trial by judge alone and the trial proceeded before me without a jury.

The offence of murder requires the Crown to prove beyond reasonable doubt that the death of the deceased was caused by the deliberate act of the accused and that at the time of doing the act or acts that caused death the accused intended thereby to kill or to do grievous bodily harm.

The facts relating to the offence are not in issue. The accused consented to much of the evidence being led by the tender of statements and transcripts of interviews between the police and a number of child witnesses.

The accused made the following admission on the advice of his counsel pursuant to the provisions of s 184 of the Evidence Act 1995 (NSW): 1. Rhonda Shirley Trainor died on 2 November 2005. 2. The death of Rhonda Shirley Trainor was caused by the unlawful and unprovoked acts of the accused. 3. Those acts were done with the intention to at least inflict grievous bodily harm upon Rhonda Shirley Trainor.

The accused was a 58-year-old Aboriginal man at the date he killed the deceased. He and the deceased had been living together in a de facto relationship for around 14 years. They had three sons: one was aged 13 years and twins who were aged 11 years at the date of the offence.

The deceased had six children by her former partner, David Burgess. They were aged between 28 and 19 years at the date of her death. Lisa, the eldest, Tracey and Kelly each gave oral evidence supplementing the account contained in their statements.

At the time the deceased and the accused commenced their relationship both were in the habit of heavy drinking. Their relationship was characterised by frequent arguments during which the accused was physically violent to the deceased. The deceased gave up drinking alcohol around ten years before her death. The accused also gave up drinking at this time. On occasions when he was away from home he would drink beer but he did not drink in the company of the deceased at all.

There was a reduction in the pattern of arguments and of physical assaults after the deceased and the accused stopped drinking. Nonetheless, from time to time they continued to argue and on occasions the accused assaulted the deceased. Throughout the relationship the accused was preoccupied with concerns that the deceased was sleeping with other men.

On 23 January 2005 there was a violent incident which caused the deceased to complain to the police about the accused’s behaviour. As a result of her complaint an apprehended violence order was issued for her protection. The accused was required by the order not to assault, molest, harass or threaten the deceased. On 9 October, following a further complaint by the deceased, the order was varied so as to require the accused not to enter the Cedar Crescent home. As the result of this order the accused moved to premises in Conridge Street, Forbes. Nonetheless he continued to visit the deceased and his children at the Cedar Crescent home until the date of her death. The deceased appears to have consented to these visits although the evidence suggests that by late 2005 she was in fear of the accused.

A number of people saw the deceased on the morning of 2 November and observed nothing out of the ordinary. At about 9.30 am she chatted about day-to-day matters with her neighbour, Rachel Kavanagh. At about 11.00 am her daughter, Tracey, was walking along Cedar Crescent with her partner and infant son when the accused, who was driving his utility, pulled over to the kerb. The deceased was in the passenger’s seat she called out to the child, “are you coming with Nan”? Tye got into the utility with the accused and the deceased and the accused drove off.

The accused and the deceased visited one of their neighbours, Jean Sloane, in the course of the morning of 2 November. Ms Sloane asked the accused to pick up a chest of drawers for her. He agreed to do so and later that morning he and the deceased dropped off the chest of drawers at Ms Sloane’s home. This was around midday and they said that they would see Ms Sloane later.

Another neighbour, Nancy Hill, saw the accused and the deceased during the morning and both seemed to her to be normal and happy.

The eldest boy came home from school at lunchtime. When he arrived the deceased and the accused were arguing. When the boy left the home the accused and the deceased were sitting in the lounge room. The accused was swearing at the deceased and she was crying. Neither showed any sign of injury.

At around 1.30 pm Ms Kavanagh heard loud banging and a voice screaming out, “someone help me”. The voice sounded like the voice of the deceased. Ms Kavanagh had never heard screaming like this before. She telephoned the Forbes Police station and reported the incident.

Constable Biles and Constable Zierholz attended at the Cedar Crescent premises in answer to Ms Kavanagh’s call. Ms Kavanagh saw no one enter or leave the deceased’s house from the time she heard the screams until she saw the police at the premises. The police knocked on the front door with no response. They inspected the backyard and found no one. Nancy Hill came over to the house and spoke with the police. She called out, “Johnny come out we know you are in there”. Shortly after this the accused opened the front door and walked out onto the porch. He had a an injury to his neck and a lot of blood on the front of his t-shirt.

Constable Zierholz asked, “what’s happened?”, and the accused responded, “it’s all over”. Constable Zierholz said, “what do you mean?” and the accused said, “it’s all over you’re too late” and “leave me alone, you’re not taking me”.

Tracey Trainor, who lived a few doors away, came over to her mother’s house. She approached the accused asking, “what did you do to her John?” He said, “she won’t be fucking anyone anymore”.

The accused was placed under arrest and taken to the Forbes Police Station.

The police recorded their interaction with the accused at the Police Station in the period before he was taken to the Forbes District Hospital for treatment for his injuries. The recording is in evidence. The accused’s responses appear somewhat slowed. At times he exhibited a degree of aggressiveness, demanding, “I want some fuckin’ support here for me”. He was asked about his injuries, and he responded, “I told ya she cut me”. He was asked , “what with, John?” and he said, “knife”.

When the police entered the premises they found the body of the deceased lying face down in a pool of blood in the dining room. It was apparent that she had sustained a number of penetrating wounds to the skull. The lower part of the wall adjacent to her head was stained with blood spatter. There was blood spatter on the freezer immediately in front of the deceased’s head and there was blood spatter on the underside of the dining table, to the right of the body. There were bloodstains on the ceiling which had the appearance of having been cast off by a bloodied swinging object.

A broken golf club was found in the kitchen near the entry to the dining room. The head of the club had broken away from the shaft. Blood and hair adhered to the club’s head and there were bloodstains along the stainless steel shaft. DNA analysis of the samples taken from the head and shaft were consistent with the blood being that of the deceased.

The police located a large wooden handled flat tipped screwdriver in a magazine rack in the lounge room. It had bloodstains on it. Subsequent testing of the stains on the shaft of the screwdriver showed a DNA profile consistent with that of the deceased.

In an unoccupied bedroom the police found a digeridoo which appeared to have bloodstains on it.

A post-mortem examination was conducted on 4 November by Dr McCreath. She observed nine lacerations or abrasions to the head. These were mostly located at the back of the head. There was extensive fracturing of the skull with associated bruising and lacerations to the brain. There was extensive bruising of the face and bruising to the anterior aspect of the neck and within the strap muscles of the neck. The cause of death was blunt force head injury.

Sergeant Clarke, of the Forensic Services Group, has studied the analysis of bloodstains. He considers that the pattern of blood spatter in the dining room is consistent with the deceased having been struck a blow to the head which caused bleeding and from which she fell to the floor. While lying on the floor Sergeant Clarke considers that the deceased was struck further forceful blows, which caused medium velocity impact splatter. Not less than three blunt force blows were struck as the deceased lay in this position. Sergeant Clarke considers the golf club to be the most likely weapon to have caused the medium velocity impact splatter that he observed in the dining room. I accept Sergeant Clarke’s opinion in these respects.

The accused was examined by Dr Andres at the Forbes District Hospital on the afternoon of 2 November. He had a six centimetre lacerated wound on the front of his neck and three puncture wounds to the left front chest. The wounds were superficial and were sutured under local anaesthetic. The accused offered no account to medical staff at the hospital of how he had come by the injuries. There was no evidence that he had sustained injuries consistent with being defence wounds.

Dr Anderson, a medical officer with the Clinical Forensic Medicine Unit of the New South Wales Police Service, examined photographs of the accused’s injuries. He was asked to express an opinion as to whether the injuries were self-inflicted. Dr Anderson was not able to express a definite opinion in the absence of seeing the neck wound before it was sutured. He considered that the wounds possessed features suggestive of self-infliction.

In one of the bedrooms the police located two bloodstained black handled knives. They were found under a set of bunk beds. The blood on the blade of each knife was consistent with the DNA profile of the accused. The samples taken from the handle of each knife had a DNA profile consistent with the accused being the major contributor. In each case the analysis also detected DNA from another source. One of the handles had a minor DNA profile that could have originated from the deceased.

An examination of the accused’s t-shirt revealed a small defect on the outer fabric surface of the chest pocket on the left side. The defect did not extend to the inner surface of the garment. There was no other damage to the garment. Significantly, there were no signs of knife damage corresponding to the superficial wounds to the left side of the accused’s upper abdomen.

Sergeant Clarke made an examination of the bedroom in which the blood stained knives had been found. He observed a number of passive droplet stains on the carpet floor. Passive drops are formed by the force of gravity alone. This pattern of stains indicated that the source of the blood had been stationary for a period of time.

Bloodstains were observed in other parts of the house, including on a mat located near the southwestern corner of the lounge suite and a mat located in the lounge/dining room doorway. There was no pattern of blood staining leading from the bedroom, where the bloodstained knives were located, to the dining room.

I am satisfied beyond reasonable doubt that the deceased died on 2 November 2005 as the result of being struck one or more blows to her skull by the accused. I am satisfied that one or more of the blows were struck with the golf club. It may be that the didgeridoo and the screwdriver were also used by the accused in the course of the fatal attack but the evidence does not admit of a finding in this respect. It was a savage and sustained attack. I am satisfied beyond reasonable doubt that more than one blow was administered to the deceased as she lay helpless on the dining room floor. The terms of the accused’s admission acknowledge that the acts causing death were carried out with at least the intention of inflicting grievous bodily harm upon the deceased. The number of blows, their force, and the statement made by the accused in the immediate aftermath of the killing (that the deceased would not be having sexual relations with anyone else anymore) satisfy me beyond reasonable doubt that his intention was to kill.

I am satisfied beyond reasonable doubt that the Crown has established each of the elements of the offence of murder. It remains to consider the “defence” raised by the accused of mental illness.

Proof of the “defence” of mental illness is upon the accused on the civil standard. It is sufficient for him to establish that it is more likely than not that he was mentally ill so as not to be responsible for his acts.

Section 37 of the Mental Health (Criminal Procedure) Act 1990 (the Act) requires that, if on the trial of a person charged with an offence, a question is raised as to whether the person was at the time of commission of the offence mentally ill, the court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings. The Court must include in its explanation a reference to the existence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act 1990 and a reference to the relevant functions of that Tribunal with respect to forensic patients within the meaning of that Act, including a reference to the requirements of that Act that the Tribunal may make a recommendation for the release of a person detained in accordance with s 39 only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

Section 38 of the Act provides that where on the trial of a person for an offence there is evidence that the person was mentally ill, so as not to be responsible, according to law, for his action at the time when the act was done, then, if it appears to the jury that the person did the act but was mentally ill at the time the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

Mental illness is not defined for the purposes of s 38 of the Act. I must be satisfied upon the balance of probabilities that at the time of doing the act causing death the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong: R v McNaghton (1843) 8 ER 718 - for the defence to be made out.

Two eminent forensic psychiatrists gave evidence: Dr Westmore, in the accused’s case, and Dr Neilssen in the Crown case. Each considers that the accused was mentally ill at the time of the killing, such that he was deprived of the ability to understand that his acts were wrong.

The Crown does not challenge the evidence that the accused was suffering from a mental illness, being a psychotic disorder, at the time he did the acts causing death. In written submissions the Crown identified the issue raised by the defence in this way: Has the accused proved on the balance of probabilities that that condition deprived the accused of the ability to reason about the moral rightness or wrongness of his actions “with a moderate degree of sense and composure”. The quotation is a reference to the frequently cited passage from R v Porter (1933) 55 CLR 182 at 189 - 190. Dixon J’s direction to the jury in that case was in these terms: We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was 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”? is wrong having regard to the everyday standards of reasonable people.

Dr Westmore first saw the accused at the Parklea prison complex on 10 April 2006. At that time the accused gave an account that the deceased had been sneaking out to meet other men on nights when he and she were sleeping together at the Cedar Crescent home. He told Dr Westmore, “I’d wake up and hear the fella singing out at the door. I just had to bite me lip all the time. I couldn’t say nothing or do nothing”. He described how he had got up and found the deceased having sex with a man in the lounge room. He claimed that a neighbour, Rod Williams had tried to provoke him into fighting with him on the day of the killing as a device by which the deceased and he were trying to get him out of the way.

Dr Westmore considered that the accused was mentally ill at this first examination. His provisional diagnosis was that the accused was suffering from a delusional disorder. Following his examination he wrote to the prison authorities, advising that the accused required psychiatric assessment. He recommended that inquiries be made to determine whether there was any basis in reality for the accused’s beliefs with respect to the deceased’s sexual conduct.

A delusional disorder is a psychotic condition, in which the sufferer maintains a fixed, false belief notwithstanding knowledge of the existence of evidence to the contrary.

Dr Westmore re-examined the accused at the Silverwater prison complex on 21 February 2007. By this time the accused had been commenced on a course of Risperidone by Dr Miller, his treating psychiatrist. The accused told Dr Westmore that he had been placed on Risperidone “because I’ve been hearing voices and things like that”. He said that he had experienced the voices since he had been in prison “and a little bit before”. In the course of this second interview the accused said that he had difficulties in getting an erection and offered this as the reason that the deceased had started to run with other men. The accused nominated Rod Williams, Toddy Harvey and Paul Lambert as men with whom the deceased had been having sexual relations.

Dr Westmore’s primary diagnosis is that the accused was suffering from a delusional disorder. His differential diagnosis includes that the accused was suffering from a paranoid schizophrenic illness. The accused’s history of auditory hallucinations which Dr Westmore obtained at the second examination did not incline him to favour a diagnosis of paranoid schizophrenia or of schizophrenic illness. He considers that it is possible that the accused was suffering late onset schizophrenia, but he favours delusional disorder given the accused’s history of pervasive and persistent morbid thoughts of jealousy, including his checking behaviour. Delusional disorder is itself a psychotic illness. Dr Westmore was emphatic in his opinion that the accused was suffering from a psychotic condition and whether the condition is correctly labelled as delusional disorder or late onset schizophrenia is of secondary importance and will only be known after time.

In Dr Westmore’s opinion the accused understood the nature and quality of his acts at the time of the killing. Dr Westmore considers that the accused was acting on delusional beliefs which totally deprived him of his capacity to know that he ought not to act as he did. He expanded on this in oral evidence, emphasising that the disorder led the accused to entertain thoughts that men were coming to the house, banging on the door, calling out his name, leaving footprints outside his house and so on. He observed: The patient feels that everybody knows about it and that the wife is continuing to do it repeatedly and despite that and despite their distress and then it’s the anger that leads from that and so it’s not a normal thought about infidelity there’s something different.

Dr Neilssen considers that the accused has a psychotic illness, which is best described as a late onset schizophrenic illness. He considers that the accused’s mental illness produced a defect of reason being his delusional beliefs that his wife was unfaithful to him and that this deprived him of the ability to recognise that his actions were morally wrong or to reason with sense and composure about the likely consequences of his actions.

In oral evidence Dr Neilssen expanded on the reasons why the accused’s mental illness deprived him of the ability to understand that his conduct was morally wrong: Well I think it’s, comes down to the nature of psychotic illness and how it effects reasoning in general and the faulty logic that produces a delusional belief also has a severe affect on reasoning in general and the perspective of a person who is affected by a delusion is from the point of view of that delusion that he’s been terribly wronged by his wife and that’s why I believe it affected his ability to realise that his actions were morally wrong (T 59-35-44).

The evidence that there was no basis in reality for the accused’s beliefs concerning the deceased’s infidelity is powerful. Each of the deceased’s daughters who gave evidence described the accused as repeatedly charging the deceased with unfaithfulness over the course of their relationship in circumstances in which there appeared to be no foundation for the allegation.

Detective Senior Constable Baker located Rodney Williams, whom the accused had described as goading him into fighting with him on the morning of 2 November. Mr Williams was working on the morning of 2 November until about 1.30 pm. He then went home to his address in Cedar Crescent and went to sleep. He had no interaction with the accused.

Paul Lambert knew the deceased as a neighbour, but he had not spoken to her very often. He had little contact with either the accused or the deceased and he had not had a sexual relationship with the deceased.

Brenda Weatherall was living with her partner, Eric (Ned) Wright, in Cedar Crescent at the time of these events. After the accused and the deceased moved into Cedar Crescent Ms Weatherall had become friendly with both of them. For practically the whole of December 2004 Brenda Weatherall and the deceased went walking together around the lake at Forbes. About a week before Christmas the deceased stopped coming on these walks. Ms Weatherall asked why and the deceased told her that the accused believed that she had been meeting a man at the lake and having sex with him. The deceased was at all times in company with Ms Weatherall on these walks and nothing of the sort occurred. The deceased complained to Ms Weatherall that the accused did not allow her to have any friends.

Eric Wright said that when the deceased and the accused first moved to Cedar Crescent he had not observed any problems between them. He and the accused had gone fishing together and they had got on well. After a time the accused started challenging him that he was sleeping with the deceased. Mr Wright had never had a sexual relationship with the deceased.

The twins both described their father as accusing their mother of sleeping around with other men. One of the twins was sleeping in the master bedroom at the time of these events. Despite the court order, the accused was sleeping with the deceased in the master bedroom on the night of 1 November. The boy woke early on the morning of 2 November and was told my his mother that the accused had gone outside the home and that he was looking for footprints.

There is no evidence to suggest any basis in reality for the accused’s belief that the deceased was being unfaithful to him.

I am satisfied that the accused was suffering from a psychotic condition characterised by delusional beliefs relating to the deceased’s infidelity at the time he killed her. The Crown did not submit to the contrary.

When the accused came out of the house in the immediate aftermath of the killing he understood that the deceased was dead and he knew that the police would take him into custody for what he had done. He offered an account that the deceased had attacked him causing the injuries to his neck and abdomen. He maintained this account in his interviews with Dr Westmore. It is probable that the knife wounds were self-inflicted. Their appearance was consistent with them being self-inflicted. They are likely to have been inflicted in the bedroom where Detective Salmon observed droplets of blood on the carpet. The knives appear to have been concealed under the bed as distinct from landing there in the course of a fracas. The t-shirt worn by the accused did not bear signs of knife damage. The probability is that in the aftermath of delivering the fatal blows to the deceased the accused self-inflicted superficial knife wounds with a view to providing some excuse for his brutal assault on the deceased.

Dr Neilssen said that the accused had told him that he had been attacked, but Dr Neilssen’s own assumption was that the injuries were self-inflicted because of their location. He considered that the accused had been making an excuse afterwards. This did not change his opinion concerning the accused’s psychotic reasoning process at the time of the killing. Dr Neilssen observed that the accused is not a sophisticated person or a person likely to make up symptoms. The symptoms that the accused reported were very typical of many other people suffering from a psychotic condition. The delusional belief and impaired capacity for logical thinking in Dr Neilssen’s opinion meant that at the time of the killing the accused had not been able to reason as to the wrongness of his act.

Dr Westmore was asked to consider the accused’s statements in the aftermath of the killing, including his account that the deceased had attacked him, as evidencing an attempt to shift the blame for what had occurred. Dr Westmore agreed that this appeared to be the case. It did not alter his opinion. He explained that mentally ill people who commit offences, such as this one, often have some understanding that they will get into trouble for what they have done.

The evidence of two senior forensic psychiatrists with very considerable experience in the assessment of mental illness in individuals charged with serious criminal offences is that at the time the accused struck the fatal blow or blows he was mentally ill, such that he could not reason that what he was doing was wrong by the standards of ordinary members of the community. Dr Westmore considers that the accused’s psychotic condition totally deprived him of the capacity to know that he ought not to have done what he did.

The psychiatric evidence is all one way. The factual assumptions made by Dr Westmore and Dr Neilssen are established by credible evidence. There is nothing in the evidence which would cause me to reject the unchallenged expert opinion.

I am satisfied upon the balance of probabilities that at the time he did the act or acts that caused the death of the deceased the accused was mentally ill such that he was not responsible in law for his acts. For these reasons, I am required to return a special verdict.

John David Biggs on the charge of the murder of Rhonda Shirley Trainor I find that you are not guilty by reason of mental illness. Pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990 I order that you are to be detained in a correctional facility or such other facility as the Mental Health Review Tribunal may direct until you are released by due process of law.