The Crown did not dispute the diagnoses of these top ranking psychiatrists. On 5 March 1987, the jury took only twelve minutes to find Mr Allen not guilty on the grounds of mental illness.
There was never any dispute Paul Allen was legally insane at the time of the murder, but with treatment he soon came good, if that is the correct word, and the experts decided there was no longer any sign of any mental illness. So much so that—and it must almost be without precedent—he was released on bail and went back to work for one year and eight months until the verdict.
It is important to remember the verdict meant that, at the time of the killing, Allen was not legally liable, but insane. With regards to the sentence, however, he was perfectly sane and needed no treatment, but according to the law as it stood he could not be given a custodial sentence or, for that matter, be released. Although Justice Michael Grove had no misgivings about the propriety of the jury’s verdict, he was required by law to remand Paul Allen in custody, to await the decision of the Mental Health Tribunal. The formal order was for Mr Allen ‘to be kept in strict custody until the governor’s pleasure is known’: an indeterminate sentence in a psychiatric hospital, that hospital being Callan Park at Rozelle, in Sydney’s inner-western suburbs. The judge had no discretion. That order was mandatory.
To be a patient in a mental hospital is no doubt a depressing experience for anyone. To be confined to one while sane is an unspeakable Dickensian ordeal. Mr Allen suffered, but did not complain. He felt great remorse over being responsible for the death of the woman he loved. He genuinely didn’t think any punishment to him could be severe enough for what he did to his de facto wife. But to me, indeterminate detention in a mental hospital, if you are not mentally ill, is what the Americans would call cruel and unusual punishment. His experience at Callan Park was far worse than being in gaol. It was very unsettling for him.
I clearly remember sitting with Dr William Barclay at a table in the grounds of Cumberland Hospital, another psychiatric facility within the Western Sydney Local Health District complex, waiting to appear for Paul Allen before the Mental Health Review Tribunal. Patients from the hospital were wandering around us and, as lunchtime grew closer, the behaviour of many of them became increasingly more erratic. We were in no danger, however. It was explained to me the effects of medication given to patients after breakfast were wearing off. Paul Allen needed no medication.
The absolute tragedy of this case is that an innocent young lady was violently killed by the man who loved her. There was no sane motive, no gain for Mr Allen, only heartfelt and enduring loss. His total inability to appreciate, at the time, what he did was wrong was accepted by the Crown. The law did not require punishment. Society did not need protection from him. His legal insanity had been identified and cured. Gaol was not appropriate, nor was the mental hospital where he was lawfully detained.
The machinery to determine Paul Allen’s future rested with the Mental Health Review Tribunal. Its chairman was an eminent Queen’s Counsel, later to be a judge. The other two members were a psychiatrist and an independent citizen. I presented evidence to Mr Allen’s sanity and good behaviour while on bail prior to the verdict. The application, unfortunately, failed by majority: the chairman and the citizen member voted against release. The experienced psychiatrist was in favour.
Proceedings before the tribunal are not open to the public. The hearing which I attended was conducted with competence and courtesy. There were competing public interests involved: the safety of the community and justice to an individual. My submission to the tribunal was that there was no basis in medicine, law or fact to hold Mr Allen in custody indefinitely. I acknowledged the whole problem arose in the first place from the actions of Mr Allen. It was philosophically and legally relevant that he was unable to control his actions, which cost his partner her life.
The law governing uncontrollable fatal impulses is heartbreaking and permanently inadequate. Inadequate for the protection of innocent victims and inadequate for the fate of the offenders.
I do hope he was soon released, and not lost in the system. As I was no longer at the Bar, and thus could no longer appear for him, I lost touch with him.
This was my last appearance as a barrister and a depressing one.
CHAPTER
10
Mallard and Veen—The Sleep of Reason
This is the story of two young men, Rodney Francis Mallard and Richard Charles Vincent Veen. I’m not giving anything away when I reveal both men were guilty of homicide. Both men possessed an abnormality of the mind which led them to claim diminished responsibility as their defence. Both presented expert witnesses to corroborate their defence. This is where the similarities end: each faced different judges and juries and their outcomes differed. With the delivery of their verdicts, the story of these two men and the effect their cases would have on the law had only just begun.
* * *
On 31 January 1974, 49-year-old Miss Florence Jackson was strangled and sexually molested in her flat in Lurline Street, Katoomba in the Blue Mountains west of Sydney, not far from the famous lookout to the Three Sisters. The murder was committed by Rodney Mallard. He was only twenty-two. Mallard went on the run and was eventually arrested in Queensland and extradited to New South Wales. When arrested, Mallard admitted to the murder and signed a police record of interview. On the evidence, Mallard’s case looked hopeless.
While Mallard awaited trial, a story appeared in Sydney’s Daily Telegraph on 28 June 1974, detailing the findings of an inquest in the Bairnsdale Coroner’s Court in Victoria. The coroner’s court had been hearing evidence into the 1973 murder of a bank clerk, whose body was found washed up on a beach on 6 February 1974. The court found the clerk had given a lift to and been murdered by a person identified as Rodney Francis Mallard. The same Rodney Mallard I was about to defend. Any attempt from Victorian Police to put Mallard on trial would now have to wait until after New South Wales had dealt with him. At the same time, we hoped any potential jury members hadn’t read the article or, if they had, would not connect our Mallard with the Victorian murder.
Horrible as the facts were in the murder of Miss Jackson, they pointed inexorably towards an abnormality of Mallard’s mind. Instructing me was a rising young law clerk from the public solicitor’s office, Winston Terracini. In preparation, Terracini retained not one but two psychiatrists. He and I knew the Crown had exclusive first call on veteran government consultant psychiatrist, Dr Oscar Rivers Schmalzbach OBE. Dr Schmalzbach was a mercurial character, the veteran of over a hundred murder trials. Juries loved him. He was combative, yet charming.
For the defence, we retained Dr Frederick Wright-Short, a highly experienced consultant psychiatrist who, over the years, was retained in countless criminal and civil cases as an expert witness. There was no psychiatrist in private practice more respected than him. He was silver haired and patrician, immaculately dressed in a dark pin-striped suit, white shirt and conservative navy blue tie, and he gave evidence in a calm and persuasive manner. Dr Wright-Short accepted the history Mallard related to him, and Terracini and I thought he was a perfect foil for the flamboyant Oscar Schmalzbach.
We also had Dr Bill Lucas, who, despite his comparative youth, had great experience in homicide cases. He was also retained by the Faculty of Law at Sydney University. Such was Dr Lucas’s standing, he was officially the consultant psychiatrist for the Prison Medical Service. Dr Lucas was articulate and had a contrasting image to Dr Wright-Short, wearing a brown leather coat, colourful shirt and matching cravat, presenting himself in a dashing modern image for the times. These were the loud, flared seventies, remember.
Each of our doctors were impressive and, I thought, particularly persuasive witnesses. Acting independently, they concluded Mallard had ‘an abnormality of the mind which substantially impaired his mental responsibility’.
Mallard had worked, ironically, as a psychiatric nurse. In 1970, he was introduced to the occult and he engaged in devil worship. His
involvement and subsequent mental condition was exacerbated by the use and abuse of drugs and alcohol. Both defence psychiatrists were firm in the opinion that Mallard, while suffering an abnormality of the mind, was not mentally ill. This meant we could not go down the path towards an insanity defence, but there was evidence strongly supporting diminished responsibility.
As it happened, the New South Wales Parliament was about to introduce into criminal law the defence of diminished responsibility. To clarify, when elected officials make the law, they consult with the judiciary, and debate and decide on the law’s relevance and fairness to the community. It is the job of the lawyers and the courts to uphold the law.
Diminished responsibility had been available in England for ages, but that section of the insanity defence had not been available in New South Wales before now. Knowing diminished responsibility was about to be made law, we were given some extra time to put together our defence prior to trial. Mallard and I would present the first diminished responsibility defence in the state.
Once enacted, Section 23A of the NSW Crimes Act read:
(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.
(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.
For Mallard, we had every reason to be confident the defence would succeed and thus the verdict would be not guilty of murder, but guilty of manslaughter. The weight of evidence pointed powerfully that way. On my advice, Mallard had offered, before the trial even began, to plead guilty to manslaughter in full discharge of the indictment, but this was refused by the Crown. When arraigned before Justice John O’Brien, Mallard again pleaded guilty to manslaughter in front of the jury panel. The plea was rejected and the six-day trial proceeded. The state’s Senior Crown Prosecutor, Leon Tanner QC, was briefed for the prosecution.
I submitted to the jury, Mallard’s life story was ‘strange and bizarre to the extreme’ and ‘one of demon worship, drugs and degradation’. I concluded my opening address with these words: ‘On that fateful day at Katoomba, reason slept.’
Mallard had admitted his involvement in demonology, Satan worship and the occult to Dr Wright-Short. The doctor diagnosed Mallard as a psychopath. While prejudicial, the introduction of the flirtation with Satan and the occult was an attempt to demonstrate how abnormally our client’s brain was behaving. The Satan worship disclosure to doctors revealed how devastatingly twisted was Mallard’s mind. Plainly that risk had to be taken—it was the only hope of reducing the crime from murder to manslaughter.
With the defence of diminished responsibility being raised, the onus was on the accused to establish it. As with the defence of mental illness, this is an exception to the general rule that the onus is on the Crown, from first to last, and the accused does not have to prove anything. The shifting of the onus on these issues to the accused is not unfair. It is a matter of commonsense because, in a psychiatric defence, so much of the material which would support such a defence usually lies exclusively within the knowledge of the accused, their family and doctors. The onus on the accused is a lesser one than that usually resting on the Crown, that being proof beyond reasonable doubt. The standard of proof resting upon an accused, where a defence of mental illness or diminished responsibility is raised, is the same as that which rests upon a person who brings a civil case. It is sufficient to prevail by establishing proof on the balance of probabilities. In other words, to make out a case as being more likely than not true, or tipping the scales ever so slightly in favour of the accused’s position.
In Mallard there was no dispute on the issue he was responsible for Miss Jackson’s death. The sole issue was not the abnormality or otherwise of his mind, but the degree of it. The Crown called witness after witness to unfold the ghastly narrative. Time and again I sought to shorten this by indicating there was no dispute as to the facts. Time and again my efforts failed, with the judge having sat me down.
There was nothing legally wrong with the Crown leading all of this evidence in detail. It certainly brought home to the jury the highly unattractive facts. It did not, as I unsuccessfully tried to emphasise, assist the jury in performing its real task: to decide what medical opinions they preferred. The Crown’s detailed focus and emphasis on the ugly objective facts must have helped create an atmosphere of rejection of the technical psychiatric evidence. After hearing the gruesome details, how could the jury objectively view the offender’s mental condition and its relevance to the murder?
This was, as I stated earlier, the first time the defence of diminished responsibility had been raised in New South Wales, and might even prove to be something of a precedent. If the trial judge, Justice O’Brien, had had his way, I think it would have been the last. It became plain Justice O’Brien had not, instinctively, formed an intellectual attraction to the defence case, and it was apparent very early in Mallard’s trial. He did not like the defence or its proponents.
Our top rank psychiatrists, Dr Wright-Short and the incredibly highly qualified Dr Bill Lucas, outgunned the Crown’s theatrical Dr Oscar Schalzbach. True, it was not a numerical contest, but Mallard’s expert evidence was very imposing and thorough. Dr Schmalzbach, of course, expressed his opinion that Mallard was not suffering from any ‘substantial impairment of the mind’. He did concede, however, Mallard suffered from a psychiatric condition.
Standing in the dock, Rodney Mallard addressed the jury, saying,
I am not guilty of murder. I didn’t mean to harm Miss Jackson … It is really difficult for me to explain these urges. It was some power which came over me and I couldn’t fight it … I know I killed her and often see her face … I know what I have done, but don’t know why. I was friendly with her and on that day, at her place, my mind just went off. Something kept saying to kill her … Something kept going on in my head, saying she had to die. It is difficult, but what can I say other than that I am sorry?
As was his custom, Justice John O’Brien summed up all day. As the Crown had done, the judge painstakingly reviewed the facts in great detail. And, as I had tried to argue during the trial, there was no real need for this as the essential facts had never been in dispute. The only issue was whether the accused had established mental impairment to the required degree. On this issue the accused had to establish his case on the balance of probabilities. We believed the evidence pointed strongly in that direction. Or so we thought.
We seriously underestimated the influence of the judge.
After retiring for only an hour, the jury returned with a verdict of guilty of murder. The rejection of Rodney Mallard’s defence of diminished responsibility on the basis of his mental condition was against the weight of impressive medical evidence. When Mallard was sentenced to life imprisonment, his body shook and he cried uncontrollably. There must have been a feeling of utter despair for this 22-year-old man. Not only did he face an indeterminate period in gaol in New South Wales, but he was also wanted for murder in Victoria.
On 18 March 1983, Mallard was released by New South Wales Correctional Services and immediately extradited to Victoria for the murder of the bank clerk with whom he had hitchhiked. Mallard had served nine years for the murder of Miss Florence Jackson, and would spend another seven years as a guest of Her Majesty in Victoria. He was finally paroled in March 1990, after a total of sixteen years in gaol in two states. This, however, was not the end of Mallard’s story.
* * *
Richard Charles Vincent Veen was but twenty years of age and living in a derelict house near Kings Cross, Sydney’s notorious red-light district. He was a prostitute and roamed the streets and hangouts around Kings Cro
ss nightly. He had experienced a deprived and unhappy life from birth and had no parents and no home. He had been molested by his school teacher while a teenager. His Aboriginal heritage tormented him. He felt rejected by both the black and white communities. His potential to succeed faded with his almost vagrant lifestyle. He had suffered brain damage which triggered fatal violence when he partook of alcohol and had built up quite a criminal record, spending time in juvenile institutions for various crimes. He was devoid of hope.
On the night of 15 February 1975, as usual, Veen picked up a man in the street and they repaired to the client’s apartment in the inner western suburb of Croydon. A copious amount of alcohol was consumed by both men. When Veen asked for money for his services, the client refused to pay and made a hurtful racist remark. During the resulting turbulence, Richard Veen picked up a knife and stabbed the man to death. The autopsy would record over fifty wounds—a frenzied attack. Veen was charged with murder.
Veen took responsibility for the murder, but said it was the result of provocation: what Veen’s client did and said provoked an uncontrollable rage within him, a rage which overtook him, denying him reason and an understanding of the consequences of his actions. Although still a relatively new law, just under a year old at the time of the killing, Veen’s defence was diminished responsibility. The onus shifted to Veen’s defence counsel to prove that, on the balance of probabilities, their client had suffered an abnormality of the mind at the time of the killing. For this, the defence must call supporting expert evidence. Veen had no such evidence. Veen’s counsel relied upon a single psychologist who was contradicted by, yet again, the Crown’s expert, Dr Oscar Schmalzbach. The defence psychologist, while still a professional in the field, was not as experienced and court-savvy as Dr Schmalzbach. It didn’t seem a fair contest.
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