DPP v A H [2016] VSC 79

3 It is alleged that on 31 December 2014, at Sunshine, he murdered his uncle, MF.

4 The accused has pleaded not guilty to the charge on the grounds of mental impairment.

5 The case proceeded as a 'consent mental impairment' under s 21(4) of the Act.[2]

6 A Statement of Agreed Facts was read out and tendered by the Crown.[3] Defence counsel did not take issue with the Statement of Agreed Facts.

7 Both parties agreed that the available evidence established the defence of mental impairment as defined in s 20 of the Act.

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that -

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

9 The defence of mental impairment is to be established on the balance of probabilities.

10 Mr Gibson, on behalf of the Crown, called Dr Nicholas Owens, psychiatrist, and adduced evidence that the accused killed the deceased in circumstances attracting the defence of mental impairment under s 20(1)(b) of the Act. The report of Dr Owens was tendered[4] and Dr Owens gave viva voce evidence.

11 Mr Gurvich SC, counsel for the defence, called Dr Anthony Cidoni, psychiatrist, in support and also adduced evidence that, at the time the accused killed MF, he did so whilst mentally impaired within the meaning of s 20(1)(b) of the Act. The report of Dr Cidoni was also tendered[5] and he gave oral evidence.

12 In circumstances where the parties agree that the defence of mental impairment is able to be established on the available evidence, the trial judge may hear the evidence and, if satisfied that the defence of mental impairment is made out, may direct a verdict of not guilty because of mental impairment under s 21(4) of the Act.

13 Submissions were made, on the basis of all the evidence currently before me and on the basis of the expert psychiatric opinion of Dr Owens and Dr Cidoni, that I should be satisfied under s 21(4) that the defence of mental impairment is established.

14 Accordingly, pursuant to s 21(4), I must decide whether I am satisfied that the evidence establishes that the defence of mental impairment is made out, so that I can direct that a verdict of not guilty because of mental impairment be recorded.

15 The circumstances of this case are extremely tragic. The deceased, MF, met his death whilst acting courageously to assist his family and members of the public by helping in the supervision of the accused at a time when it appeared to members of the family that the accused was patently mentally unwell. The deceased is to be commended for his bravery.

16 The accused, who is of [redacted] background, was born on [redacted] in [redacted]. He is one of [redacted] children to his mother, FF. He has a sister, AS, who was involved in assisting their mother on a day-to-day basis prior to the death of MF.

17 MF was the brother of FF and uncle of the accused.

18 The immediate family of the accused resided in [redacted] in December 2014.

19 The accused was aged [redacted] at the time he was charged with murder and had lived in Australia since he was a young child.

21 The accused was dealt with at the Melbourne Magistrates' Court on 9 September 2014 for a number of charges, including assault-related offences committed in public in the [redacted]. He was sentenced to a community correction order ('CCO') of 12 months' duration as a result of those charges and was supposed to be undergoing that order at the time he killed MF.

22 The order required that he receive drug and alcohol assessment and treatment and undergo correctional supervision.

23 It is of some significance that the CCO file records that, on 30 October 2014, the accused was noted by a drug and alcohol assessor as needing treatment for cannabis addiction, with a previous daily habit of two grams per day, as well as occasional binge drinking. However, it was also noted that he had claimed to the writer that he had stopped smoking cannabis three days prior to the interview, and therefore was experiencing some physical symptoms and finding it hard to sleep.

24 Then, again, in early November 2014, when the accused attended an appointment for CCO supervision, his behaviour was considered agitated and inappropriate, including raising his voice and being irate about being kept waiting. He told the supervisor that he had been clean from drugs and alcohol for over a week as a result of reading the Qu'ran and practising Islam, and he then preached the benefits of Islam to the supervising worker.

25 Mr Abdiaziz Farah, a social worker known to the mother of the accused, attempted to obtain mental health assessment and treatment for the accused, having been initially approached by his mother towards the end of November 2014.

26 When he met with the accused at around that time, it appeared to him that the accused was unwell. He described his impression that the accused man's attention was wandering, stating that he seemed to be 'zooming in and out'.

27 The accused would not cooperate with suggestions about mental health assessment or treatment. He was also not abiding by his obligations under his CCO and was in danger of being breached on that order for non-compliance.

28 On 18 December 2014, the sister of the accused, AS, contacted a youth mental health service agency reporting that her brother was agitated and aggressive and that he was manifesting a sudden increased interest in religious matters, which was uncharacteristic.

29 She also expressed concerns for her mother's safety, given that the accused had gathered the family together and was accusing his mother of adultery. Despite maintaining far-fetched ideas when spoken to by the youth worker by telephone, the accused claimed to the worker that he was not unwell and that it was his family who were unwell. Nevertheless, his mother, in a separate phone call, echoed the concerns of her daughter for her own safety and her concern that the family was at risk from the accused man because of his unpredictable behaviour.

30 FF telephoned the Sunshine Community Correctional Services ('CCS') on 24 December 2014 again, seeking mental health assessment or support for her son.

31 On 25 December 2014, FF telephoned police and a mental health service provider asking for something to be done about her son's condition.

32 The police attended the family home, but by then the accused had left and could not be found. When he returned home, his mother telephoned the police again. They attended with ambulance paramedics, but on speaking to the accused found him to be calm and coherent and decided that there was no basis to exercise their powers under s 351 of the Mental Health Act 2014 or detain him.

33 On 29 December 2014, FF went with social worker Mr Farah to the Sunshine CCS office to discuss her son's non-compliance with the corrections order and to discuss the mental state of the accused. She wanted to find out whether the CCS could compel him to receive a psychiatric assessment. She told his case workers that the accused had withdrawn from his family and was acting erratically and was refusing to attend his scheduled CCS appointment. She expressed concern that he had an underlying mental health condition, such as schizophrenia, but said he had never been assessed or diagnosed because he was unwilling to engage in an assessment.

34 The appointment had been arranged because of poor compliance with the CCO. The meeting was unsuccessful in achieving a mental health assessment for the accused.

35 On 30 December 2014 at 9:37 pm, FF telephoned emergency services and requested the police to attend, as her son was delusional and hallucinating and had kicked down her bedroom door. She stated that she and her family were being terrorised by the accused.

36 The sister of the accused, AS, made a contemporaneous call to 000 seeking urgent police help.

37 Police attended at 9:53 pm and were shown the damage to the bedroom door. They were also told that the accused had been ranting on different topics and was intermittently crying hysterically and was not sleeping and that the family did not feel safe.

38 When police spoke to the accused, they considered that the subject matter and content of the conversation was irrational, inconsistent and scattered, but that the accused was otherwise calm and compliant. They did not consider that they could act under s 351 of the Mental Health Act 2014. However, they persuaded the accused to come with them voluntarily to the Western Hospital to be seen by medical staff for an assessment under the Mental Health Act 2014.

39 The accused attended the hospital with police at 10:45 pm. His mother, his sister and the deceased were also in attendance at the hospital.

40 Dr Haninia took a patient history and, after speaking to the accused, prescribed some antipsychotic medication and sought an assessment by an ECAT worker (Emergency Crisis Assessment Team), to see whether he should be admitted for treatment in hospital.

41 Michelle O'Brien, a social worker for ECAT, assessed the accused at 12:50 am and decided that he needed to be admitted on mental health grounds. She outlined, in a statement that formed part of the depositional material,[6] her concern that the accused was experiencing delusions that he and his uncle were pharaohs, and that his uncle had committed atrocities against the female members of the family.[7] She formed the opinion that, at the time she spoke to the accused, he lacked insight into his condition.

42 Steps were put in place to find out whether a bed would be available for an inpatient admission and to decide whether the accused should be admitted on a voluntary or an involuntary basis.

43 Whilst this decision was being finalised, the accused was treated as a voluntary patient and, therefore, when the accused wished to leave the hospital for a cigarette, he was not prevented from doing so.

44 The deceased accompanied the accused outside the hospital for the purposes of the accused having a cigarette at about 1 am. He did so in order to supervise the accused whilst the admission was being finalised.

45 CCTV footage captured the pair outside the entrance to the hospital. Shortly afterwards, security guards witnessed the accused running off, with the deceased giving chase.

46 At 1:19 am, the accused returned to the hospital and told some police who were attending for another case another case:

The Pharaoh is dead. I'm the new Pharaoh in town.

47 When medical staff saw the accused at this stage, he was found to be wearing bloodied clothes, although on closer examination no injury was able to be observed to account for the blood.

48 The accused continued to refer to the 'Pharaoh' and traditional religious passages, rights and the 'truth'.

49 When further questioned by Michelle O'Brien, he told her that he killed the man pretending to be his uncle. He said:

I strangled him and kicked his head until he died and then I elbowed him and I took my frustrations out for what's been happening to my family ...

I did it just around the corner ... I told him I wanted to walk for a cigarette but the whole time I held my intentions to my heart, I knew what I had to do was right, so I ran away and he fell for it ... thinking that he was going to put me in a permanent ... they've been trying to poison my food, they've been trying to poison my everything for long time ...

50 A hospital security officer was wearing a camera which was able to be activated and which recorded the interactions with the accused. This recording is available to assist a conclusion that the accused was seen to be floridly psychotic within a very short time after the killing.

51 Shortly afterward, hospital security guards and police discovered the deceased in nearby Stanlake Street.

52 MF was critically injured and unconscious due to severe head and neck injuries.

53 Although he was given emergency treatment in the Western Hospital, he died shortly after.

54 Meanwhile, the accused was sedated and handcuffed in the resuscitation bay until he was able to be assessed by Dr John Koutsogiannis.

55 He was then deemed to be an involuntary psychiatric patient, placed under arrest and taken to the Melbourne Custody Centre where he was examined by a Forensic Medical Officer and found unfit to be interviewed.

56 Dr Sylvia Hanania, who was the Emergency Registrar on duty at Western Hospital when the accused was brought in, deposed that, when she spoke to the accused prior to his assessment by Michelle O'Brien, she found him to be making eye contact, answering questions appropriately and to be lucid and cooperative.

57 However, when he returned to the hospital after running away and was found to have blood on him, she noted that he was saying things that did not make sense, was tangential and that there was a marked fluctuation in his behaviour.

58 Subsequent toxicology reports on the blood sample taken from the accused on the night of the killing were negative for known illicit drugs or alcohol.[8]

59 It appears from the above narrative that the events which flowed when the deceased tried to intercept the accused were difficult to predict or foresee because of the variable presentation of the accused when seen by police and mental health professionals. The accused was able to mask his symptoms and was guarded in his disclosures.

60 The accused has remained in custody since his detention as an involuntary patient on 31 December 2014. He was initially detained at the Melbourne Assessment Prison, then at the Acute Assessment Unit and then at Port Phillip Prison where he remains at present.

61 Post-mortem examination of the deceased was conducted by pathologist Dr Michael Burke. His evidence supported the probability that the deceased was assaulted by the accused close to where he was found in Stanlake Street, Sunshine, and that, as a result of the assault, the deceased had sustained abrasions and bruises to his head and neck, subarachnoid haemorrhage overlying the brain, cerebral contusions and multiple facial fractures and a midline fracture of the larynx and cricoid cartilage.

62 Dr Anthony Cidoni assessed the accused man on 3 August 2015 and diagnosed him as suffering from a schizophreniform psychosis at the time of his offending. This diagnosis applies to an episode of psychosis of more than one month's duration but less than six months. He opined that the accused was suffering from first episode psychosis.

63 He considered the relative contribution of cannabis or drug induced psychosis to the accused man's presentation but formed the view that the period over which the accused had displayed symptoms exceeded that which could be explained as merely a drug-induced psychosis.

64 He opined that the available evidence about what the accused did on the night of 30 and 31 December 2014, including the accused's presentation the following morning, demonstrated that as a result of his psychosis at the time of the killing, the accused met the second limb of the mental impairment test, in that he did not have the ability to appreciate the wrongness of his own conduct in killing the deceased. He found that the accused was preoccupied with ancient Egyptian imagery and his delusions focused on pharaohs. He was acting under the belief that he was going to be harmed at the hospital by being put into a coma. He had a delusion about the deceased being a pharaoh and being evil. He had formal thought disorder and persecutory and grandiose delusions including delusions of the Fregoli-type. He had been labouring under these delusions for at least three weeks.

65 Dr Cidoni elaborated on his August 2015 report in oral evidence, indicating that the accused lacked insight into his mental condition. He noted that an up-to-date forensic psychiatric report would be beneficial if the accused were to be found not guilty on the grounds of mental impairment.

66 He noted that only the passage of time could clarify whether the accused would go on to be diagnosed with full blown schizophrenia.

67 He stated that it was unclear when the psychotic symptoms resolved, but he did not observe ongoing psychotic symptoms when he examined the accused. The accused had suggested the symptoms resolved in April 2015.

68 Dr Nicholas Owens assessed the accused on 28 September 2015 and 30 November 2015.

69 He had access to the police brief, Dr Cidoni's report, the Justice Health custodial medical file and criminal history of the accused.

70 He also opined that the formal defence of mental impairment applied to the actions of the accused at the time he killed his uncle.

71 In his opinion, the accused was psychotic at the time and believed that his uncle was a threat to his life. He was plagued by delusions and paranoid thoughts based on ideas from ancient Egypt. The psychosis had been ongoing for at least three to four weeks prior to the offence and continued for some weeks afterward. The accused had been elusive and avoidant when his family had tried to have him assessed.

72 Dr Owens diagnosed probable schizophreniform disorder.

73 He did not diagnose any psychotic symptoms at the time of his interviews with the accused in late 2015, and appeared to consider that the psychosis had resolved at that stage.

74 He excluded a drug induced psychosis through cannabis ingestion or other drugs, because of the fact that the accused had not been ingesting drugs in the four weeks before the offence apart from an isolated occasion. He noted that the negative drug screen was consistent with the history provided on that point. The length and duration of the psychosis did not accord with a mere drug-induced psychosis.

75 Dr Owens opined that, on the balance of probabilities, the accused man's moral reasoning was grossly disturbed at the time he killed the deceased and that he only partly knew the nature and quality of his actions (that he had killed a person masquerading as his uncle), but that he could not reason with a moderate degree of sense and composure about his actions and did not know his actions were wrong.

76 Having considered all of the evidence disclosed in the depositional materials, and the expert opinions of Dr Cidoni and Dr Owens, I am satisfied that the defence of mental impairment as defined in s 20 of the Act is made out on the balance of probabilities. I accept that the accused was suffering from a disease or disturbance of the mind that was not merely explicable as the result of the effects of a temporary drug induced psychosis.[9]

77 In particular, it is apparent from the depositional materials that the accused man's functioning was already declining in the month or two prior to the killing. This is not adequately explained by the ingestion of illicit drugs. Sadly, the capacity of the accused to mask his mental illness when seen by professionals complicated the prospects of accurate diagnosis being made before the events of 30 and 31 December 2014. The accused was suffering a first episode psychosis at the time he attacked MF. He was acting under the belief that the deceased and others had tried to poison him and that they were seeking to place him into a coma when he was taken to the hospital.

78 The accused remained unwell at least until April 2015 after being remanded in custody.

79 I have no hesitation in accepting that the second limb of the legislative criteria for a defence of mental impairment applies to the actions of the accused at the time he killed MF.

80 I will declare, pursuant to s 23(a) of the Act, that the accused be liable to supervision under Part 5 of the Act.

[1] Information identifying the accused or his family members has been anonymised and redacted in this judgment.

[2] Section 21(4) of the Act sets out: If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and - (a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or (b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.

[7] She also outlined a number of other features of mental disturbance observed by her in her interview with the accused.

[8] Including an updated, more detailed VIFM toxicological screening that was performed after the police brief was prepared and which screened for Khat and synthetic cannabis (Crown Exhibit 3).

[9] T Forrest J in R v Konidaris [2014] VSC 89 discussed the dichotomy presented by cases where doubt exists as to whether a person has a healthy mind which is temporarily disturbed by a drug-induced psychosis as against a person suffering from a disturbance or disease of the mind which is the result of an underlying mental illness such as schizophrenia. I have considered and adopted this distinction in my findings in this case.