R v Christos Tsekas

District Court of NSW|2018-07-10

Judgment ON VERDICT on special hearing

The accused, born on 25 May 1944 and is now 74 years of age, was charged with the following: 1. On 25 September 2016 in Rockdale in the State of New South Wales, did wound Paul Raymond Jay with intent to murder the said Paul Raymond Jay.
The accused was further charged in the alternative: 1. (2) That on 25 September 2016 at Rockdale in the State of New South Wales, did wound Paul Raymond Jay with intent to cause grievous bodily harm.
Count 1 on the Indictment was an offence pursuant to s 27 of the Crimes Act 1900. The alternative count is an offence pursuant to s 33 (1)(a) of the Crimes Act 1900.
On 17 October 2017 the accused was found unfit for trial by her Honour Judge Syme. He was then referred to the Mental Health Review Tribunal ("MHRT") pursuant to s 14(1)(a) of the Mental Health (Forensic Procedure) Act 1990 ("MHFP"). On 18 December 2017 the MRHT determined that the accused was unfit to stand trial and was unlikely to become fit within the next 12 months, pursuant to s 16(1). The matter was then referred to the District Court for special hearing. As neither party elected to have the matter heard before a jury, pursuant to section 21A of the MHFP, the matter was set down for determination by judge alone. The special hearing took place on 9 and 10 July 2018.

The defence case

The accused called no evidence, but relied on the psychiatric evidence in the Crown case and the expert medical opinions of two psychiatrists, which are referred to below. Counsel for the accused advocated that the appropriate finding for the court to make in the circumstances was that the accused was not guilty by reason of mental illness, pursuant to s 22(1)(b) of the MHFP.

The elements of the charges

The elements of the charge pursuant to s 27 of the Crimes Act 1900 of wounding with intent to murder are that: 1. The accused 2. with the intent to murder 3. wounded 4. the victim.
The elements of the alternative charge pursuant to section 33(1)(a) of the Crimes Act 1900 of wounding with intent to cause grievous bodily harm are: 1. The accused 2. wounded the victim 3. with intent to cause grievous bodily harm.

The Crown submissions

The Crown provided a detailed written outline of submissions. The Crown accepted that it bore the onus of proof beyond reasonable doubt of the four elements of the principal charge, and that the accused bore the onus of proof of the defence of not guilty by reason of mental illness on a balance of probabilities.
The Crown submitted that intention to kill could be inferred from the actions of the accused in the manner and location of the attack, the number of wounds inflicted on the victim, the weapon used and the forethought of the accused in how he would attack the victim. The Crown therefore submitted that the elements of Count 1 on the Indictment have been proved beyond reasonable doubt. If the Court did not accept that submission, the Crown submitted that the elements of the alternative count, of wound with intent to cause grievous bodily harm, were proved beyond reasonable doubt.
On the question of intention, the Crown referred to R v Minani [2005] NSWCCA 226 at [32], where Hunt AJA said as follows: "32 Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent."
Under the heading "The Mental Health of Mr Tsekas", the Crown summarised the opinions of the two psychiatrists, namely, Dr S Dayalan, (report dated 30 March 2018), and Dr Adam Martin (reports dated 13 June 2017 and 24 May 2018). Neither of the psychiatrists were cross-examined on their opinions. There was no real divergence of opinion between the psychiatrists. It was common ground that the accused suffered a schizo-affective disorder, with presentations of delusional beliefs, auditory hallucinations, disordered behaviour, irritability, agitation, depressive symptoms and suicidal ideations. He also suffered a dementing illness which had resulted in a decline of his cognitive function. Both experts agreed that he was suffering from a psychotic illness complicated by his dementia, and his ability to think rationally was significantly impaired.
Both opined that at the time of the offending, the accused suffered a disease of the mind causing a defect of his reasoning, and that he did not know the wrongfulness of his actions.
The Crown submitted that in the event of a finding on Count 1 of not guilty by reason of mental illness, the appropriate course was to dismiss the alternative charge on the Indictment.

The submissions on behalf of the accused

Counsel for the accused also relied on a thorough written outline of submissions. The sole issue in the matter was whether the accused is responsible for his actions, having regard to his mental state at the time, that is, whether the accused is not guilty by reason of mental illness.
Counsel also relied on the Court of Criminal Appeal's judgment in R v Minami, supra. The test to be applied when determining whether a mental illness defence was available was formulated by Dixon J (as he then was) in R v Porter (1933) HCA 1; (1933) 55 CLR 182: "The question is whether he was able 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? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."
Counsel then analysed the expert medical evidence, which had first been obtained on the question of the accused's fitness to be tried. However, ultimately the opinions of both Dr Martin and Dr Dayalan were consistent in that both were of the view that the accused had available the defence of mental illness.
Following the hearing, counsel provided a supplementary written submission on the question of whether, in the event of a verdict of not guilty by reason of mental illness, in respect of Count 1, what order was to be made in relation to Count 2. Council submitted that a verdict of not guilty by reason of mental illness is to be distinguished from an acquittal represented by a not guilty verdict. "The verdict is a qualified verdict in that it represents a finding that the accused committed the acts that would establish the offence, but that he is not to be held responsible for those acts at law, due to the effects of his mental illness at the time of the offence". The verdict is referred to in the MHFP as a "special verdict"
Council also referred to R v Istudor [2016] NSWDC 1, in which Judge Haesler dealt with a similar situation, namely, where the accused was charged with attempted murder, and in the alternative, with an offence of wounding with intent to cause grievous bodily harm. His Honour entered a verdict that the accused was not guilty of the charge of attempted murder by reason of mental illness. Orders were made in consequence of that finding and included the notation, "No verdict is required on Count 2". It was submitted that the consequences of a special verdict are to be regarded as a finding that the offence in Count 1 is proved and therefore the court is not required to consider the alternative count.

Determination

Dr Brett Simpson, psychiatrist, provided a certificate of expert evidence in which he reported that Mr Tsekas had been under his care since June 2011, when he was admitted to St George Mental Health Unit for a period of five months.
He had been admitted with symptoms of lithium toxicity and delirium and his mental state had been deteriorating for several months, with delusional ideas concerning his wife. Upon his discharge, he was transferred to hostel care at Bruce Sharp Lodge in Rockdale. He remained under Dr Simpson's care until his arrest on 26 September 2016.
Dr Simson noted that Mr Tsekas had an established psychiatric diagnosis of Schizo-affective Disorder. He had first been treated for psychotic symptoms in May 1973 when he was aged 29 years. He had had multiple psychiatric admissions since his initial diagnosis and had been treated with a range of anti-psychotic, mood stabilising and anti-depressant medications.
Dr Simpson also reported that Mr Tsekas has a co-morbid cognitive impairment. Neuropsychological assessments performed in 2013 and 2015 demonstrated a mild to moderate level of cognitive dysfunction across the fronto‑subcortical and temporal lobe systems.
During a five-year period of treatment Mr Tsekas experienced intermittent psychotic symptoms despite compliance with a range of different anti‑psychotic medications. He had a further brief psychiatric admission in August 2014 when he expressed suicidal ideation. Dr Simpson reported that typically, during exacerbations of his illness he would report possible persecution by unspecified persons and likely auditory hallucinations. Further, over a three-year period prior to the alleged offence, Mr Tsekas became increasingly preoccupied with dust in his room at the hostel and moved rooms on several occasions because of this concern. When last assessed on 5 August 2016, he was still preoccupied with dust and reported a theory that the dust was controlled by a switch in the facility. He described having warned another resident not to touch this switch, although he denied any thoughts that a specific resident or staff member was persecuting him, or that he had plans to harm others.
Mr Tsekas was examined by Dr Susan Pullman, neuropsychologist and Dr Adam Martin for the purpose of providing expert opinions on his fitness to stand trial. Leaving aside their opinions on that question, Dr Martin further opined: "It appears highly likely that the alleged violent behaviour occurred as a direct consequence of delusions and hallucinations. It would appear likely that he had knowledge of the legal wrongfulness of his actions, judging from his responses around the time and admissions to the police, but it seems likely to me that his capacity to act rationally was significantly and detrimentally affected by his mental illness."
Dr S Dayalan, in a report dated 30 March 2018, was qualified on behalf of the accused to provide an opinion on whether he had a mental illness defence available to him. He opined as follows: "At the time of the offence, Mr Tsekas had a defect of reasoning in that he was experiencing delusional beliefs. The delusional beliefs were symptoms of Schizo-affective Disorder which is a disease of the mind. Mr Tsekas had taken a meat cleaver to the victim's room with an intent to hurt him. The description of his behaviour at the time of the offence suggests that he did know the nature and quality of his act. Mr Tsekas had been concerned about the impact of the dust on his health. He had been convinced that the victim was causing the dust to come into his room. It is noted that Mr Tsekas had complained about the dust for a few years to a number of different people, but in his opinion, his concerns had been ignored. He had decided to harm the victim as he had believed doing so would stop the dust coming into his room. Mr Tsekas had been suffering from a psychotic illness complicated by dementia at the time of the offence. His ability to think in a rational manner is likely to have been significantly impaired. He had been distressed by his psychotic symptoms and his behaviour at the time of the offence was his attempt to mitigate the distress secondary to his delusional beliefs. It would be reasonable to state that Mr Tsekas did not know the wrongfulness of his actions resulting in the offence."
In a further report dated 24 May 2018 to the Director of Public Prosecutions, Dr Martin responded to the report of Dr Dayalan. He elected not to re-examine Mr Tsekas given the findings from his first assessment. In answer to a question as to whether the accused was suffering from a mental illness at the time of the offence he opined as follows: "In my opinion Mr Tsekas was certainly suffering from a mental illness at the time of the alleged offending. There is consistent reporting from him and from others, of him expressing delusional beliefs about dust coming into his room, causing distress and this appears to have been closely associated with the alleged violent offending. His mental illness would be considered to be severe, for the reasons noted above. That is, Schizo-affective disorder is considered a major mental illness associated with significant disability and is characterised by a person being prone to being out of touch with reality and being liable to disorganised, illogical and irrational behaviour in association with impaired reality testing. It is frequently associated with poor insight into having an illness."
Dr Martin went on to opine that the alleged violent behaviour appeared intentional and goal-directed, namely, to deter the victim from causing dust to come into his room. In his view, there was no evidence to suggest that Mr Tsekas lacked the capacity to form specific intent to wound a person with intent to murder, however, he agreed with all of the conclusions and opinions of Dr Dayalan. He concluded that the accused has a serious mental illness which would be seen as a disease of the mind causing a defect of reason.The alleged offending occurred as a direct result of those delusional beliefs.
Applying the test in R v Minani, supra, I find that it was the act of the accused which caused the wounding of the victim, however, by reason of his mental illness, Mr Tsekas was not criminally responsible for doing that act.
I accept the expert opinion of both Dr Dayalan and Dr Martin, that at the time of the offending, the accused was suffering from a defect of reason directly related to his mental illness. That mental illness had been diagnosed as a schizo-affective disorder with a history of presentations characterised by delusional beliefs, together with a dementing illness. I accept the opinion of Dr Dayalan that at the time of the offending the accused did not know the nature and quality of his act. I am satisfied on the balance of probabilities that the accused did not know the wrongfulness of what he was doing at the time of the offence. I therefore find that the appropriate verdict pursuant to s 22 of the MHFP, should be not guilty by reason of mental illness. I accept the submission made by counsel for the accused, in conformity with R v Istudor, supra, that in those circumstances, no verdict is required in respect of the Alternative Count 2.

Orders

I make the following orders: 1. In accordance with s 38 of the Mental (Forensic Provisions) Act 1990, I find the accused not guilty of the charge of wound with intent to murder on the grounds of mental illness. 2. In accordance with s 39(1) of the Act, I order that Christos Tsekas be detained in Long Bay Prison Hospital, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. 3. I direct that, as soon as possible, the Registrar notify the Minister for Health of this order. 4. I further direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order and provide to the Tribunal the following documentation: 1. A copy of these reasons for verdict and orders. 2. The exhibits at the special hearing. 1. No verdict is required on the alternative charge of wounding with intent to cause grievous bodily harm.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2018

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