R v George Tannous

Supreme Court of NSW|2016-03-10|Before: Mathews AJ

Judgment

HER HONOUR: On 10 March 2016 George Tannous was charged by way of indictment with the offence that on 17 February 2014 at Bankstown in New South Wales he murdered Margaret Tannous. He pleaded not guilty.
An order had previously been made, by consent, that the proceedings be tried by judge alone. Accordingly the trial proceeded before me without a jury. It was an extremely brief trial. A number of documents were tendered by the Crown, all of them by consent. Indeed, they included a psychiatric report obtained on behalf of the defence. Brief oral evidence was given by Dr Adam Martin, the forensic psychiatrist who had assessed the accused on behalf of the Crown. Both counsel were in agreement that the appropriate verdict in all the circumstances was the special verdict of not guilty by reason of mental illness.
Most of the relevant documents, including both psychiatric reports, had previously been provided to me by counsel. Having read those documents and heard Dr Martin's evidence, I was firmly of the view that this was the only appropriate verdict in the circumstances. Accordingly I entered a verdict that the accused was not guilty by reason of mental illness and made a number of ancillary orders. I said that I would deliver my reasons at a later date.

Circumstances of the Offence

The accused and the victim were husband and wife, having been married in Lebanon in about 1993 or 1994. Shortly afterwards the accused moved to Australia, where they lived in a unit at Meredith Street, Bankstown. They had two children, aged 18 and 17 at the time of these events.
The relationship between the two had clearly deteriorated over the years. In 2012 the victim took out an apprehended domestic violence order against the accused, although she withdrew it shortly afterwards. This was followed by a trial separation, and although they later reconciled there were obvious tensions in their relationship.
It is unnecessary for present purposes to detail the various causes of conflict between them, but they largely stemmed from the accused's intense jealousy, and his firm belief that his wife was having affairs with other men. By way of illustration, the victim was working as a migration agent in rented premises in Bankstown. She sublet part of her office to a man, in order to assist with the rental payments. While the victim was away in Lebanon, the accused went and demanded that the sub-tenant move out of the premises, saying: "if you were married, would you be happy if your wife was sharing an office with a man?" The accused was also convinced that his wife was having an affair with her cousin, because his kiss on her cheek had lasted two seconds, rather than one.
The victim travelled to Lebanon, on her own, in January 2014. She returned on 15 February. On the evening of 17 February the two of them were at home alone, as both children had gone out. An argument developed between them relating to the man who had sublet the victim's office, and the accused repeated his accusations that the victim was having affairs with other men. At that point the victim said that she wanted a divorce. This infuriated the accused, who took a large stick and proceeded to strike her on numerous occasions to the head and the upper part of her body. The accused then called 000 and asked for an ambulance to attend. When the ambulance officers arrived he told them: "I hit her because she made me mad." He then left, saying that he was going to the police station to hand himself in.
The ambulance officers found the victim in the bathroom of the unit, covered in blood. She was moaning and agitated and needed to be sedated. The police arrived and assisted the ambulance officers in transferring her to a spinal board. She was taken to Liverpool Hospital where she was treated for extensive injuries, but at 11.00 that night she went into cardiac arrest, and died at 11.14 pm.
In the meantime, the accused made a number of telephone calls to relatives and friends of the victim. These displayed more than a little irrationality. In each of them he said that he had hit his wife, but what he said thereafter varied considerably. In more than one he said that she might not still be alive, while in others he said that he hoped that nothing bad would happen to her. At 8.45 that evening he walked into the Bankstown Police Station and was arrested.
At 11.04 pm the accused entered into a recorded interview with the police, with the assistance of an Arabic interpreter. It was interrupted shortly afterwards with news of the victim's death. The accused continued with the interview, describing his perceived problems with the victim's infidelity. As to his intention when he was striking the victim, he gave different answers at different stages, saying that he lost his temper. Towards the end he said that he wanted to hurt her, but did not think that she would die.
The accused was then charged with the murder of the victim. He has been in custody ever since.
A subsequent post mortem examination of the victim showed the cause of death to have been blunt force trauma. There were extensive blunt force injuries to the upper limbs and the face, with fractures of both the upper and lower jaws as well as multiple fractured or absent teeth. These were suggestive of extreme force being used in the facial blows. In addition there were multiple lacerations of the scalp associated with extensive skull fractures. These were taken to have been caused by the combined effects of blows to the top of the head and the face.

Background of the Accused

I now turn to say something about the background of the accused. This information derives principally from the psychiatric reports tendered by the Crown.
The accused was born in Lebanon in March 1958 and is now 59 years old. On all accounts he had a difficult childhood, and left school at about the age of 11. He married the victim in Lebanon and came to Australia the following year (in either 1994 or 1995, depending on the account). The victim was Lebanese, but had spent most of her life in Australia. The accused worked as a cleaner in this country, either as an employee or for his own business. They had two children, a son aged 18 and a daughter aged 17. For most of the marriage they lived in the unit in Bankstown where the killing took place.
The accused had previously had a number of mental health issues, although none so serious as to require admission to a psychiatric hospital. In 2012 he was referred by his general practitioner to a psychologist for "severe depression, anxiety and panic attacks". He was prescribed antidepressant medication.

Issues to be Determined

The accused having been charged with murder, it goes without saying that the Crown must prove, beyond reasonable doubt, the essential ingredients of that offence, as relevant to the circumstances of the particular case. In the present case, the defence of mental illness having been raised, the matters to be proved by the Crown, at least in the first instance, are significantly reduced.
The Crown must prove in all cases that it was a voluntary or intentional act of the accused which caused the death of the victim. A "voluntary or intentional act" is to be contrasted with an involuntary or accidental one. In determining this matter the Court is to put to one side the evidence as to the underlying medical condition of the accused. If this matter is proved beyond reasonable doubt the Crown must, in the normal course of events, also prove that the accused had the requisite intention for murder at the time of inflicting the fatal injuries. However when the defence of mental illness has been raised, different principles apply, as confirmed by the High Court in Hawkins v the Queen [1994] HCA 28; 179 CLR 500. In that event, the next matter for consideration is whether the elements of that defence have been established by the accused on the balance of probabilities. If so, there is no need to consider the accused's intention. The accused is to be found not guilty by reason of mental illness. It is only if that defence is not made out that the Court needs to return to consider whether the Crown has proved that the accused had the requisite intention for murder.
In the present case there can be no doubt that it was the accused who inflicted the fatal injuries on the victim. Nor can there be any doubt that his actions in this regard were voluntary and intentional ones in the relevant sense. Indeed, no one has sought to suggest to the contrary. Accordingly, the next significant matter to be considered relates to the accused's mental state at the time of the killing, and particularly whether the defence of mental illness has been made out so as to lead to a special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 ("the Act").

The Defence of Mental Illness

There is no statutory definition of the defence of mental illness. It has long been established that, once the defence has been raised, it is to be determined in accordance with the rules set out in R v McNaghten (1843) 8 ER 718 ("the McNaghten Rules"). Under these rules the accused must prove, on the balance of probabilities, that at the time he inflicted the fatal injuries he was labouring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.
As to this last requirement, that the accused not know that what he was doing was wrong, it is now firmly established that this does not relate to his understanding of the illegality of his actions, but rather to his appreciation, in a deep or moral sense, of the wrongfulness of his conduct. As Dixon J (as he then was) said in The King v Porter [1933] HCA 1; 55 CLR 182 at 189-190: "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."
At this point I turn to discuss the psychiatric evidence given at the trial.

The Psychiatric Evidence

The accused has been assessed by two psychiatrists for the purpose of these proceedings: Dr Adam Martin at the request of the Crown, and Dr Richard Furst at the request of the defence. Both provided written reports which were tendered by the Crown. In addition, Dr Martin gave brief evidence at the trial.
Dr Furst's report is dated 22 July 2015. The doctor saw the accused at the Parklea Correctional Centre on 10 June 2015. He had already been provided with all relevant documentation. The accused, the doctor said in his report, was emotional and tearful through the interview, especially when discussing the offence. He was depressed in mood, and still maintained that his wife had been having affairs. On the basis of this interview, and having assessed all relevant documentation, Dr Furst diagnosed the accused as suffering from a delusional disorder (morbid jealousy) as well as a depressive disorder. To quote from the doctor's report: "These psychotic disorders delusional disorders are diagnosed when prominent non-bizarre delusions (i.e., involving situations that occur in real life, such as being followed, poisoned, infected, loved at a distance, or deceived by spouse or lover, or having a disease) are present for at least one month and the symptom criteria for schizophrenia have never been met. Psychosocial functioning may not be obviously impaired and any co-occurring mood episodes must be of relatively brief duration."
Dr Furst expressed the opinion that, at the time of the killing, the accused was probably suffering from a disease of the mind in the form of a delusional disorder and was probably also suffering from a defect of reason regarding his wife having multiple affairs as a product of his underlying delusional disorder. He probably understood that his actions in killing his wife were legally wrong, but he may have had difficulty reasoning about the wrongfulness of his actions with a moderate degree of sense and composure. In conclusion, the doctor considered that the accused probably had the defence of mental illness available to him.
Dr Martin saw the accused, also at the Parklea Correctional Centre, on 2 September 2015. He also had been provided with all relevant documentation, including Dr Furst's report. The accused, again in this interview, was convinced that his wife had been unfaithful to him, and was not open to alternative explanations for her behaviour.
In his report Dr Martin expressed the opinion that the accused probably had a psychotic illness, namely delusional disorder (jealous type) and the killing probably occurred as a direct result of his delusional thinking. The doctor considered that the accused's disordered thought processes would have impacted on his ability to appreciate the moral wrongfulness, if not the legal wrongfulness, of his actions, and would have had a detrimental impact on his ability to think and behave rationally. On this basis the doctor considered that the defence of mental illness could be argued.
In his evidence at the trial, Dr Martin said that the offending could also be attributed to the accused's suspicious and controlling personality, but that the two (a controlling personality and a delusional disorder) were by no means mutually exclusive. He concluded that in his opinion the accused was suffering from a major mental illness, namely delusional disorder, and that the offending occurred as a direct result of this condition. Not surprisingly, Mr Lange for the defence did not cross-examine Dr Martin.

Conclusion

The whole of the evidence in this trial pointed in one direction only, namely that when the accused inflicted the fatal injuries upon his wife he was suffering from a mental illness as defined in the McNaghten Rules. It was for this reason that I entered a special verdict of not guilty by reason of mental illness and made the following consequential orders as to the disposition of the accused: 1. I order that he be detained at the Metropolitan Remand and Reception Centre (MRRC) 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. 2. I direct the Registrar of the Court to notify the Minister for Health of this judgment. 3. I direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and to provide to that Tribunal the following documentation: 1. A transcript of these proceedings; 2. A copy of each of the exhibits tendered at the trial as well as the crown submissions; 3. A copy of my reasons for verdict and orders once they are delivered. 1. I will deliver my reasons at a later date.

Amendments 18 April 2016 - Amended Representation of Solicitor for the Accused. 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: 18 April 2016

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