My pre-trial opposition to the change of venue was based largely on the fact Goulburn Gaol was on the outskirts of that regional city. This heightened the possibility many potential jurors would be related to, or friends of, prison officers or their families. Prisons are popular in provincial cities. They provide employment and are generally beneficial to the local community. But the chances of an impartial jury were diminished. It was probably an insufficient basis, but my argument emphasised Darlinghurst was the logical and proper venue for Schneidas’s trial.
There was no change. The trial would go ahead in Goulburn.
Peter Schneidas’s defence was always an emphatic denial that he was responsible for the prison officer’s murder. The case against him was not overwhelming, dependent upon some fellow prisoners who each had varying degrees of personal imperfections. Prior to trial, we had subpoenaed these witnesses’ prison files and, importantly, their psychiatric records. There was abundant material therein to test their credibility.
The Crown relied upon a number of prisoners. Many were still serving sentences and were held at Goulburn Gaol until called. Some had been released and received travel and accommodation allowances. It emerged they selected the Travelodge, one of Goulburn’s best motels, situated on the Hume Highway, which then ran through the heart of that city. Quite coincidentally, it was the same choice as the judge and counsel. Each morning at nine sharp, each ex-prisoner stood outside his motel room in front of his door on the walkway. No doubt a regimented practice from days of prison muster. In front of each was his bag. They were waiting for transport by police to the nearby courthouse. Shades of Long Bay, but really quite sad when you think about it.
The trial began at the historic Goulburn Court House, Justice John Patrick Slattery presiding. The jury was empanelled in the morning and the Court adjourned for lunch. At two pm, Schneidas withdrew my instructions. For the first time in my career, I had been sacked. The correct legal euphemism for that indignity is ‘my instructions have been withdrawn’. That was a career first for me and, thankfully, the last.
Schneidas chose to appear for himself. As well as cross-examining, he made an opening address and a statement from the dock, and then gave sworn evidence and submitted to cross-examination. By all accounts he did a pretty good job—some unkind court watchers rated it a better job than I could have done.
Schneidas was gaoled for life.
Justice Slattery expressed the view that prisoners who killed prison officers or police while on duty should never expect to return to live in the community.
Back in the prison system, Schneidas was declared an ‘intractable’ prisoner yet again. After all, his crimes against two of their colleagues would hardly have endeared him to the remaining custodial staff. He was kept in complete isolation for years and deteriorated further as a person. Eventually, he was released after twenty long years, and there was hope. He married but died within months of his release on parole in a strange drug-related incident.
Almost all of his adult life spent in gaol. A ruined life.
* * *
Making Peter Schneidas a ‘trusty’ was a mistake. A massive and tragic mistake.
Personally, he was unsuited to that classification, and should have never been placed in the OBS as a sweeper. When Schneidas entered the prison system, he arrived as a petty criminal with no history of violence. His anger at being given a three-year sentence and the inherent, and at times condoned, violence of life inside broke him, and perhaps that’s what made him lash out at Parramatta and then at Long Bay, just a year apart. These incidents occurred after having spent time in Grafton Tracs and Katingal.
The OBS, Katingal and Grafton Tracs are no more. In 1983, the OBS was bulldozed to the ground, and Katingal followed in 2006. Grafton was decommissioned in 1991, and then reopened in 1992, and is now a male and female medium-and minimum-security prison.
The changes to the New South Wales prison system came after recommendations by Justice John Flood Nagle from the 1978 Royal Commission. His report unveiled the extent of sanctioned violence being perpetrated at Grafton.
It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners.
In some instances, the beatings began even before the security belt and handcuffs were removed. The beatings were usually administered by three or four officers wielding rubber batons. The prisoner was taken into a yard, ordered to strip, searched, and then the biff began. The word biff by no means describes the brutal beating which ensued. A former prison officer, Mr JJ Pettit, described it, ‘sometimes three, four or five of them would assault the prisoner with their batons to a condition of semi-consciousness. On occasions the prisoner urinates, and his nervous system ceases to function normally.’ If most of the prisoners are to be believed, the officers had no compunction about beating them around their backs and heads; nor were they averse to kicking them when they were on the ground. They invariably abused them while they were hitting them … Sometimes they threatened to kill them.
Katingal replaced the Grafton intractables section as the end of the line for troublesome prisoners. Sensory deprivation replaced physical brutality as the weapon to enforce submission. This was not a reform at all. Both options were as bad as each other. Neither should have ever happened nor be repeated.
There is a misapprehension that to be a protection prisoner is in some way to enjoy a more comfortable mode of custody. True, it is segregated from the general population. Its occupants are mainly ‘dogs’, prison slang for informers, or ‘rock spiders’, the name for those sexual offenders whose victims are children. Protection is more, not less, arduous than for those in the general prison population. Privileges are fewer and time in solitary confinement is greater.
Once on protection it is never really safe to return to the normal prison population. Other prisoners can see who is in the segregated protection prisoners’ exercise yards. Even a transfer to another gaol will not keep that fact a secret, as prisoners are constantly on the move between various institutions. The prisoner’s code, which authorises, even demands, the bashing and humiliation of child sex offenders, smacks of more than a little hypocrisy. Child sex offenders are at constant risk, not only of physical assault, but their food is often tampered with by the introduction of unpleasant adulterating products, often human waste or other body fluid.
That hypocrisy is the justification advanced for other prisoners to sit in moral judgement. Loathsome though child sex offenders are, are they so much worse than killers, rapists, other violent offenders or drug dealers? Surely all are deserving of punishment, but it is best left to the community acting through the court system with all of its safeguards.
Katingal’s successor, the so-called Supermax within the Goulburn Correctional Centre, was inspected by a state parliamentary committee in 2005. Earlier, the Corrective Services Commissioner, Mr Ron Woodham, gave evidence to the committee supervising the prison administration. One MP criticised the management of Supermax and its restriction of prisoners’ rights of appeal against their conditions. Mr Woodham was then told eight elephants had been successful in an appeal brought on their behalf over their conditions at Taronga Zoo. When asked why elephants at the zoo had appeal rights that were denied to Supermax inmates, Mr Woodham’s reply was blunt and unsympathetic: ‘Well, elephants probably do not go around murdering backpackers and children and doing armed robberies and shooting people and hurting my staff.’
On my scorecard Woodham won that one.
* * *
For Peter Schneidas, the twenty actual years served for a top of the range murder, being that of an unarmed warder on duty, is interesting. This is middle of the range today in sentencing patterns for murder generally, and probably less than half of what to expect for the murder of a prison officer on duty now, I would expect. Today, in certain ci
rcumstances, ‘life’ is the mandatory penalty for the murder of a police officer. One imagines that would be a powerful guide in assessing the gravity for a murdered prison warder.
CHAPTER
9
Mad or Bad?
This chapter considers homicides where mental illness is a defence. To argue mental illness relies on the—some say archaic—nineteenth-century legal definition. This was a time where, in England and the colonies, including Australia, mental impairment was often the only way of avoiding the hangman’s rope.
The definition of mental illness comes from the famous case of Daniel M’Naghten in England in 1843. He murdered the private secretary of British prime minister Sir Robert Peel after mistaking him for that statesman. He was acquitted on the grounds of insanity. The common law defence of mental illness was then defined and came into force following a debate in the House of Lords. The assassin M’Naghten’s case led to the formulation of the rules bearing his name. To succeed, the accused must prove they had such a defect of reason, from disease of the mind, as to not know the nature and quality of the act they were doing, or, if they did know it, they did not know doing it was wrong. The M’Naghten rules apply to this day in New South Wales. There is also the defence of ‘diminished responsibility’, which is available only in murder trials. This means the accused may not suffer from mental illness in the legal sense, but at the time of the murder their abnormality of mind substantially impaired their mental responsibility.
The longevity of those rules does not mean they are perfect. But, approaching two centuries later, nothing better has yet been formulated by our parliaments or courts to take their place.
A defence of mental illness is available across the entire criminal law spectrum, whereas diminished responsibility only applies to murder cases. Therefore, when facing murder, the tactical (there must be a better word for it) decision arises whether to rely upon one, both or neither. It is possible an accused would meet the criteria of both. From a defence perspective, the most favourable outcome for the client is the determining factor in choosing which defence to pursue. The defence has the right, providing the court is not misled or in any way lied to, to suppress expert reports deemed unfavourable to the accused. Ethically, the Crown has no such tactical prerogative—all evidence gathered by the Crown must not be suppressed. The Crown may, however, after disclosing the evidence, chose not to call a particular witness.
Although mental illness and diminished responsibility appear to be similar, the main difference comes at sentencing. Mental impairment is a dominating feature in determining criminal punishment. In fact, it can intervene and remove criminal liability absolutely. Thus, the legal system has the dilemma of deciding if the correct diagnosis has been made. Is the accused person mad or bad? Or neither? Or both?
A person found to be mentally ill is subject to being kept in psychiatric care, whereas a person found to have suffered diminished responsibility receives a custodial sentence in a gaol. If you think the former is a softer option, take it from me, if you’ve committed a violent crime it is harder to convince people of your sanity than convincing a parole board of your good behaviour.
* * *
In 1983, Robert Booth, a 45-year-old invalid pensioner, had an appointment with GP Dr Montague Mutton, at his Parramatta surgery. When Booth arrived he produced a gun and, without provocation, shot the doctor dead. Booth then surrendered himself to local police.
There was a loud and violent community outcry when Booth’s charge of murder was reduced to manslaughter on the grounds of his diminished responsibility. His psychiatric evaluation fell short of being serious enough to raise the defence of mental illness; most likely, he did not suffer from an ongoing or permanent mental illness. Such a difference does not mean there was not an intent to kill. As explained earlier, it is based on the offender suffering a serious abnormality of the mind—so serious that, it reduced his legal culpability.
Justice Ronald Cross imposed a sentence of five years gaol and set a non-parole period of just twenty-one months. It was the lottery win of sentences.
Understandably, Dr Mutton’s family was shocked and horrified and attacked the leniency of the sentence. The issue was raised in State Parliament. Speaking in the Legislative Council of the New South Wales Parliament, Sir Adrian Solomons told the House that to the people of Parramatta, the sentence ‘brought a reaction of almost disbelief’. Despite protests, that absurdly lenient sentence remained undisturbed. Case closed.
The extreme leniency reflected the overwhelmingly strong psychiatric diagnosis and evidence. Even so, Justice Cross had set firm orders for Booth to undergo psychiatric assessment, but these orders were diminished by the short duration of the sentence.
* * *
James Leighton Ferguson, a carpenter and New Zealand expat, was aged thirty-three when he boarded in a house at Wentworthville, in Sydney’s west. His landlady was a mother of three, Mrs Laurie Jean Callagher. While mentally ill, Ferguson believed Mrs Callagher ‘was Morag … head of the witches coven … had dealings with the supernatural and was involved in Satanism’. On 6 August 1980, Ferguson assaulted Mrs Callagher, strangled her and severed her head, placing it in the oven. After lighting the oven, Ferguson left the house with the victim’s three-year-old child on his shoulders. Leaving a trail of blood, he was soon tracked down by the police helicopter.
At Ferguson’s trial, the Crown relied upon the notable Dr Oscar Schmalzbach to assess his culpability. In Dr Schmalzbach’s opinion, Ferguson did not realise what he was doing was wrong. Dr Schmalzbach found him to be acutely psychotic and certifiably insane, but his condition had gradually improved with treatment.
Called by me on behalf of Ferguson, Dr William Barclay, another eminent psychiatrist, said Ferguson was a manic-depressive with a mental illness. In his opinion, he agreed Ferguson knew what he was doing, but did not know that it was wrong. If accepted, that condition was a classic case of legal mental illness. Dr ME Dix, a South Australian general practitioner, said Ferguson had been her patient for the previous four years. She treated him for ‘bipolar manic depression psychosis’.
Based on the medical evidence, the Crown and the court agreed Ferguson was suffering from a mental illness. On 31 March 1981, in the Central Criminal Court, Justice David Hunt pronounced sentence, following the prescribed statutory formula, ordering Ferguson be kept in strict custody at the governor’s pleasure. That wording is another imperial legacy, which means the government of the day decides, through its officials, when Ferguson is allowed back into the community. His time would be spent in a psychiatric hospital, not in gaol.
After the verdict, James Ferguson was permitted by Justice David Hunt to make an emotional and moving statement. He spoke, in a faltering voice, of the dangers of taking prescribed drugs without adequate advice and supervision. He also admitted, ‘I had come off the drug lithium carbonate some three months earlier, not knowing the dangers of that action.’
Ferguson described the deceased, his landlady, as being ‘one of the most caring people I have ever met. Our friends and families have been torn apart by what happened. I can never repay for the results of what happened … too many people have been hurt too badly for that. The knowledge that I have taken a life is sometimes too much to bear.’
Ferguson also spoke of writing from gaol to the Queen and Prince Charles and the prime ministers of Australia and New Zealand about the dangers of inadequate supervision of drug taking.
I had not discussed with Ferguson the scope of this statement. The verdict was inevitable. He spoke rationally and from the heart.
The family of Mrs Callagher were more than charitable and understanding. Her partner said, ‘James was sick … he didn’t know what he was doing.’ On the other hand, the victim’s mother was stunned and critical of Ferguson’s release after serving only two years and nine months. She said, ‘I thought he would be away for at least ten years.’
Ferguson spent slightly longer in the ordered ‘strict cus
tody’ than Robert Booth did in gaol. The Daily Telegraph headline of 16 June 1983 says it all: KILLER FREE: SHOCK FOR FAMILY—HEAD IN OVEN SENTENCE CUT TO 34 MONTHS. On release, Ferguson was deported to New Zealand.
* * *
Paul Anthony Allen is the most troubling case of all and was one of my very last as a Public Defender.
Mr Allen was a 26-year-old hardworking man of impeccable character. In July 1985, he was a trainee engine driver with the State Rail Authority. It was at this time he beat his de facto wife, Tanya Bagoly, to death with repeated blows from a baseball bat at their home at Barrack Point, near Wollongong, on the New South Wales south coast. He believed she was possessed by the devil.
Psychiatrist Dr Rodney Milton supported Allen’s plea of not guilty on the grounds of mental illness. Dr Milton diagnosed him as suffering from a ‘severe and overwhelming paranoid schizophrenic psychosis’. He said Allen believed his de facto was possessed by the devil and ‘by killing her he was somehow performing an act which was good rather than evil’. Allen had also told the arresting police sergeant, ‘She [Bagoly] nearly admitted to me that she was Satan.’ Equating his act as good, as he did, demonstrates the depth of his possession by evil. This was the uncontradicted defence of Paul Anthony Allen.
The torment of Allen’s mind was profoundly revealed when he told Dr William Barclay he had not killed Miss Bagoly, adding, ‘Tanya was a robot. If she had been a real person, there would have been more blood on me.’
Justice Denied Page 14
