R v Townsend

On 9 March 2016 the accused, Brian Francis Townsend was arraigned in this Court on an indictment charging him with the murder of Mr George Cornell on 9 November 2014. To that charge he pleaded not guilty. In substance, although he admits that he killed Mr Cornell, intending to do so, the outstanding question is whether, at the time, he was mentally ill so as not to be responsible according to law for his actions. If so, then the appropriate verdict is a special verdict under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) of “not guilty by virtue of mental illness”. Such a verdict, where found, empowers the Court to order that the person be detained until released by due process of law or to be released either conditionally or otherwise. An order for release cannot be made unless the Court is satisfied, in substance, that the safety of the person or the public will not be seriously endangered by the person’s release.

The defence is made out if the Court is satisfied, more likely than not, that at the time of the offence he was suffering from a mental illness such that he did not know that what he was doing was wrong. The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. This has been applied in such trials in this State ever since. Speaking of the accused in that trial, His Honour said (at 189-90):

The facts in this case are not in dispute. Indeed, an agreed statement of facts has been tendered with the concurrence of both the prosecution and defence which deals with the circumstances of Mr Cornell’s tragic death.

At the time, the accused and the deceased were living in a block of units in Dubbo. Their units were on separate floors with access to each floor by stairs. There is a concrete landing area outside the accused’s unit and that is where the offence is alleged to have been committed. The two men had been friends for about 18 months, often drinking alcohol together, which sometimes led to arguments between them. In 2013 a personal violence order was issued against the accused in favour of Mr Cornell following an alleged assault upon him by the accused. That order was in force at the time Mr Cornell was killed, in terms that the accused be of good behaviour towards Mr Cornell, but it did not prohibit contact with him.

On Friday 7 November 2014 the accused and Mr Cornell commenced drinking alcohol, at first separately in their own units. During the afternoon they met in the accused’s unit and continued drinking on the rear veranda. As it happened, at 5.15pm on that evening a support worker from Mission Australia went to the accused’s unit and spoke to him through the screen door. He did not notice anything out of the ordinary. The accused said he was going to watch the cricket that night and that George (George Cornell) had cooked him seafood.

At about 11.30pm police were called to the unit complex in relation to a male that had been assaulted. The initial 000 call had come from the accused, who said that someone else had assaulted Mr Cornell. On arrival police noticed him standing near Mr Cornell, who was lying unconscious on the concrete landing outside the unit. He was covered in blood and clearly very seriously injured. The accused told police that he didn't know what had happened. An ambulance arrived soon after and Mr Cornell was taken to Dubbo Base Hospital.

After the ambulance left, the accused, who was obviously affected by alcohol, told police that he punched and stomped on Mr Cornell’s head up to 30 times. He was arrested and taken to Dubbo Police Station.

At the hospital Mr Cornell was diagnosed with multiple fractures to his skull. The accused was interviewed by police. His account of what happened is accepted as truthful. He told police, amongst other things –

Shortly after 10.30pm a neighbour had heard a man yell out; “No, No, No”. It was very loud and sounded as if someone was terribly frightened. Another neighbour heard, at about 11 pm a male’s voice yelling out; “Shut up. I told you to shut up”. It was very loud and I heard it in my unit.” Neither could tell where the voice had come from.

The accused had bruises and scratches on his knuckles, and his bare feet and clothing were blood stained with what DNA tests confirmed was Mr Cornell’s blood. Mr Cornell was pronounced dead in the early hours of 9 November. An autopsy found that death was caused by head injuries caused by blunt force trauma. There are details in the autopsy report about the extent of those injuries but it is not necessary to refer to them except to note that they confirmed multiple blows.

The accused was first diagnosed as suffering from schizophrenia in 2003. He has extensive medical records detailing his diagnosis and treatment. Significantly, they include brain damage from a fall from the back of a moving utility when he was 21. He had earlier symptoms of psychosis, but there is little doubt that the brain injury contributed to his later bouts and ultimate schizophrenia. He has had numerous admissions to hospital for his mental symptoms, when he has self-harmed in significant ways and exhibited some paranoia. This history and his account of what he was experiencing at the time he killed Mr Cornell provides, together with their own clinical examinations, the material upon which the conclusions of the two psychiatrists, Dr Richard Furst and Dr Olav Nielssen are based.

Dr Furst’s report includes a summary of the Accused’s lengthy history of mental health issues and treatment. Dr Furst considered that the accused “probably has enough cognitive capacity to follow what is said in court, notwithstanding his schizophrenic illness and some residual psychotic symptoms. His psychotic symptoms have improved somewhat over recent months.” He was therefore fit to be tried.

As to the question of mental illness, Dr Furst’s opinion was:

Dr Olav Nielssen stated:

So far as his mental illness is concerned, Dr Nielssen said:

I should point out that hallucinatory voices are typical of schizophrenic illness and some other brain injuries. Regrettably, in a medical sense, there is nothing surprising or unusual about the commands that Mr Townsend heard, the tragedy is that they commanded extreme violence in circumstances where he was, because of his illness I am satisfied, unable to resist what was being told to him.”

I am satisfied that it is appropriate to enter a special verdict of not guilty by reason of mental illness.

Although schizophrenia can, in many cases, be controlled by medications of various kinds and, indeed, the accused’s symptoms were to some degree moderated by his medication, he is medication resistant and cannot be released at large because it must be concluded that, if this were to happen, he would be not only a danger to members of the public but also to himself. Whether he can ultimately be released or placed in some less restrictive form of secure setting will be a matter for the Mental Health Review Tribunal, whose task it will be to monitor his progress.

It is necessary to make an order for the detention of the accused under s 39 of the Mental Health (Forensic Provisions) Act 1990.

I order that Mr Townsend be detained at the Long Bay Prison Hospital, or at such other place as may be determined by the Mental Health Review Tribunal, until released by due process of the law. I recommend the transfer of Mr Townsend to the Forensic Hospital, Malabar as soon as practicable.

I express my deepest sympathy to the family, relatives, and friends of George Cornell in their loss.