R v Goonerage [2005] ACTSC 96

1. On the evening of 29 January 2005, at a unit at Havelock House that Renny Goonerage (the accused) shared with Adrian Ford (the complainant), the accused struck the complainant several times with a machete. The complainant put up his hands to protect himself, and the accused repeatedly struck him with the machete, causing, amongst other injuries, a compound fracture of the right wrist, a severed bone in his right arm and a deep laceration to his head. The charges that the accused now faces arise from that incident.

... THAT on the 29th day of January 2005 at Canberra in the Australian Capital Territory, Renny Goonerage intentionally inflicted grievous bodily harm upon Adrian Ford.

AND FURTHER THAT on the 29th day of January 2005 at Canberra aforesaid, Renny Goonerage recklessly inflicted grievous bodily harm upon Adrian Ford.

3. The accused has pleaded not guilty to both charges on the grounds of mental impairment. The charges are alternative. The charge of intentionally inflicting grievous bodily harm is punishable on conviction by imprisonment for fifteen years: s 19 of the Crimes Act 1900 (ACT) (`the Crimes Act'). The charge of recklessly inflicting grievous bodily harm is punishable on conviction by imprisonment for ten years: s 20 of the Crimes Act.

4. Division 13.3 of the Crimes Act deals with acquittal on grounds of mental impairment.

5. Section 320 provides:

320 Acquittal on grounds of mental impairment

(1) An accused is entitled to be acquitted of an indictable offence on the grounds of mental impairment if it is established on the balance of probabilities that, at the time of the alleged offence, the accused was, as a result of mental dysfunction or mental illness -

(a) incapable of knowing what he or she was doing; or

(b) incapable of understanding that what he or she was doing was wrong.

(2) The onus of establishing that an accused is entitled to be acquitted on the ground of mental impairment lies on the party seeking the acquittal.

(3) Evidence adduced by the prosecution to establish that an accused is entitled to be acquitted on the grounds of mental impairment is inadmissible except with the leave of the Supreme Court.

6. Section 321 provides:

321 Plea of not guilty by reason of mental impairment

If an accused pleads not guilty by reason of mental impairment, the Supreme Court shall enter a verdict of not guilty on that ground with respect to the offence charged if -

(a) the court considers the verdict appropriate; and

(b) the prosecution agrees to the entering of the verdict.

7. By notice of election dated 2 June 2005, the accused elected to be tried by judge alone. Pursuant to s 68C of the Supreme Court Act 1933(ACT), a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).

8. As far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

9. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

10. Further, and most importantly in the circumstances of this case, if I am satisfied beyond reasonable doubt that the accused intentionally inflicted grievous bodily harm upon the complainant, I am to enter a verdict of not guilty by reason of mental impairment if I am satisfied on the balance of probabilities that at the time of the offences alleged against the accused he was:

(b) incapable of understanding that what he was doing was wrong.

11. This case is unusual, in that there is no dispute as to the facts, and the only real issue is the mental fitness of the accused at the time of the attack on the complainant by the accused wielding a machete. In particular, pursuant to s 184 of the Evidence Act 1995 (Cth), the accused admitted, through his counsel Mr James Sabharwal:

(i) That the complainant suffered the following injuries:

(a) Six deep lacerations to his arms

(b) Severed bone in his right arm

(c) Compound fracture of the right wrist

(d) Deep laceration to his right foot

(e) Laceration in his head

(ii) That those injuries are consistent with being repeatedly struck with a machete.

12. The prosecution has indicated, through its counsel, Mr James Lawton, that the prosecution agrees to the entering of a verdict of not guilty by reason of mental impairment, pursuant to s 321(b) of the Crimes Act. This means that the sole matter for consideration by the Court is whether the Court considers that verdict appropriate, pursuant to s 321(a) of the Crimes Act.

13. Section 18 of the Criminal Code 2002 (ACT) (`the Code') provides:

(1) A person has intention in relation to conduct if the person means to engage in the conduct.

(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.

(3) a person has intention in relation to a circumstance if the person believes that it exists or will exist.

A physical element of an offence may be -

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, happens.

15. Section 13 of the Code defines "conduct" as meaning an act, an omission to do an act or a state of affairs.

16. It is necessary to consider whether the offence of intentionally inflicting grievous bodily harm has been made out.

17. The intentional infliction of grievous bodily harm requires a willed and conscious act, an infliction by that act of grievous bodily harm to a person (grievous bodily harm merely meaning really serious bodily harm: DPP v Smith [1961] AC 290) and that the act causing that harm is done with the specific intent of causing that harm.

18. Further, s 49 of the Crimes Act provides that an alternative offence to this particular offence is that of reckless infliction of grievous bodily harm. If the other elements of the offence of infliction of grievous bodily harm are made out, save as to the specific intention, then, if the prosecution proves beyond reasonable doubt that there was a reckless infliction of that harm, that alternative offence will be made out. Section 20 of the Code defines what constitutes "recklessness" but that provision does not, at this stage, apply to this offence. I take the test of recklessness for the purposes of this offence to require foresight on the part of the accused of the probable consequences of the accused's actions and indifference on the accused's part as to whether or not those consequences occur (see R v Campbell [1997] 2 VR 585 at 593 citing R v Nuri [1990] VicRp 55; [1990] VR 641 at 643).

19. No challenge was made to the evidence given by the prosecution witnesses. Mr Lawton for the Crown tendered as evidence in the prosecution case, without objection, a statement by the complainant, Adrian Paul Ford, dated 7 February 2005; a transcript of a taped conversation between Constable Andrew Billing and the complainant on the evening of 29 January 2005; a transcript of a taped conversation between Detective Constable Kathryn Lee Richens and the complainant at Canberra Hospital on 31 January 2005; a statement by Detective Constable Kathryn Lee Richens dated 8 March 2005, a statement by Detective Sergeant Harry Thomas Hains dated 30 January 2005; a statement by Constable Lauren Jane Sanders dated 18 February 2005; a report by Dr Alexander Burns, Orthopaedic Surgeon at the Canberra Hospital dated 10 June 2005; a report of Dr Tony Tonks, Plastic Cosmetic and Hand Surgeon of 17 July 2005; and a report of Dr Charles Howse, medical practitioner of 24 February 2002.

20. That evidence is unchallenged, and counsel for the accused acknowledged the correctness of the summary of facts as set out in the document headed "Case Statement".

21. On the evidence I find beyond reasonable doubt the following facts:

Between November 2004 and 29 January 2005 the accused shared a unit at Havelock House with the complainant Adrian Ford.

On 27 January 2005 Adrian Ford contacted the ACT Mental Health Crisis Team as he was concerned about the wellbeing of the accused. On 27 January 2005 the accused had locked himself in his bedroom in the unit and would only communicate with Ford by passing notes under the door.

Two members of the Crisis Team attended in the afternoon of 27 January 2005 and along with Police Officers took the accused to the Canberra Hospital Psychiatric Unit. In the evening of 27 January the accused escaped from the Unit by jumping a wall. He was later found by Police and returned to the Psychiatric Unit and after further assessment was released from the Unit on the morning of 28 January 2005.

The accused returned to his unit at Havelock House around lunchtime on 28 January 2005. The accused told Ford that he was fine and that he had been given a Mental Health Case Manager. The accused then said to Ford "Don't report me to Mental Health again."

On 29 January 2005 the accused spoke with Ford during the day before going out. During the evening of 29 January 2005 Ford was sitting in the lounge room smoking a cigarette when the accused approached and stood in front of him. The accused was holding a machete with both hands and held it above his head before swinging it down on to Ford several times. Ford put up his hands to protect himself and the accused repeatedly struck him with the machete, causing deep cuts down to the bone on Ford's right forearm.

Ford then scrambled to the kitchen area. The accused following him and continued to strike at him with the machete. Ford fell over. He cried out "You're killing me" however the accused continued to strike at him with the machete. The complainant then ran out of unit 17 and across to another unit where he cried for help. The occupant of unit 14 called the Police.

When Police attended they were unable to locate the accused but at around 10.00 pm saw the accused riding a bicycle across the median strip of Northbourne Avenue. He was covered in blood. Police stopped the accused and arrested him. After being cautioned the accused was asked where he had put the machete. He replied "I put it in a bin". When asked which bin he replied "I don't know". Police later located a machete covered in blood in a green `dumpster' bin in the carpark of Havelock House.

As a result of the attack Mr Ford sustained six deep lacerations to his arms; a severed bone in his right arm; a fracture to his right wrist; a laceration in his right foot and a laceration to his head.

22. I am satisfied beyond reasonable doubt that those injuries constitute grievous bodily harm, and were inflicted by the accused intentionally.

23. On the issue of mental impairment, counsel for the accused tendered without objection a report dated 21 June 2005 from Dr Garth Eaton, which was directed to Dr Eaton's observations of the accused on 5 April 2001 in connection with a motor vehicle accident on 23 May 2000 involving the accused. Dr Eaton says:

Renny appeared to be suspicious of the 3rd party insurance company involved with his case. He said he received a phone call from the insurer and was threatened. This caused him to feel depressed. He also expressed suicidal thoughts.

...

I was very concerned about his demeanour and behaviour when he consulted me and in my opinion he required urgent psychological assessment and counselling.

On the same day due to my concerns, I contacted Renny's father Dr Conrad Goonerage to inform him of the situation. Dr Goonerage said he would endeavour to locate Renny and talk to him.

24. Mr Sabharwal also tendered a bundle of progress notes from the ACT Community Care, detailing involvement with the accused. Those notes range from 5 April 2001 to 19 April 2005. The notes record a history of significant drug abuse since the age of 12.

25. The notes record that he `hears voices occasionally saying "kill" but he doesn't follow them.' On another occasion the notes recorded `convinced now people are watching him & want to assassinate him.' In October 2003 it was reported that the accused was `feeling suicidal for an hour or so every day - has "my knives & my sticks" at home' - has `recurrent images of knife to major artery but not currently suicidal as we talk'.

26. Counsel for the accused also tendered in evidence the mental health records held by Mental Health ACT. The notes report that on 27 January 2005 the accused was brought to the Psychiatric Services Unit after referral by a housemate described as "Paul" in Havelock House earlier that day, with concerns about deterioration in mental state. That note records that the accused was previously unknown to ACT Mental Health. The report indicated that:

`Renny had been becoming increasingly withdrawn over the last month. Reported that Renny only communicating via notes slipped under his bedroom door, isolating in his bedroom, that he was only eating chocolate and that he was self harming with cigarette burns. Methamphetamine and cannabis use implicated.

... Notes were found in his room and on the door and a machete was found under his mattress (removed by the police). He told CATT that he was worried about someone in the hostel killing someone else but wouldn't elaborate. Evidence of social breakdown and poor hygiene. ...

Stated that he last used amphetamines 1 month ago and cannabis 1 week ago.

27. It appears that the machete that was removed by police (as recorded in this progress note of Mental Health ACT) was one of two machetes possessed by the accused. The one used in the attack on the complainant was a broad "bolo" type machete which had not been removed by police when the accused was taken to the Psychiatric Services Unit on this first occasion.

Denied paranoid or persecutory ideation. Constantly demanded whether it was a crime to isolate or only eat chocolate. ... Denied suicidal ideation or thoughts of harming others. Denied having been paranoid in the past.

29. The accused absconded from the centre, and the ACT Mental Health notes record that the Australian Federal Police phoned at 12.25 am on 28 January 2005 to notify that they had apprehended the accused and were returning him to the Psychiatric Services Unit.

30. The impression recorded in the file notes after a further assessment is:

Patient irritated at being forcibly removed from his house by police and detained involuntarily at PSU. Possibly a mild degree of paranoia. No immediate risk of harm to self or others.

Plan: Able to be discharged home.

31. A file note at 9.30 pm on 29 January 2005 records:

Call from Police Ops to ask if we had any further addresses or knew where Renny might be as he has attacked someone with a machete at HH [Havelock House] and then left the premises.

32. It appears the assessment of the accused by Dr Terje Kaasik in the presence of Dr Anthony Barker, the registrar in psychiatry, on 28 January 2005, and the further assessment of the accused after he had been returned to the Psychiatric Services Unit after absconding, that there was `no immediate risk of harm to self or others', was mistaken; a mistake that had very serious consequences, some of which are ongoing or permanent for Mr Ford.

33. In the psychiatric assessment by Dr Graham J. George, Consultant Psychiatrist in Sydney, of 22 March 2005, Dr George reported:

On the basis of his presentation over time, it appears that he does suffer some form of mental disorder. His behaviour in the Belconnen Remand Centre, up until 16/02/05, had been one of a person, who was quite withdrawn, almost mute or with poverty of thought, a blunted affect, confusion, perplexity, paranoia and little insight. Because Mr Goonerage did not express paranoid delusions, does not rule out the possibility that he may have held paranoid ideas and often, this can be expressed as a general sense of paranoia experienced by observers.

... It is possible that he has underlying schizophrenia of a paranoid type, in view of his continuing flat affect, perplexity, and paranoia. Undoubtedly, he can be precipitated into an acute psychotic episode with use of amphetamines.

My general assessment at this time is that it is almost impossible to provide a definitive diagnosis of his current presentation. Further investigations as mentioned above, need to be carried out. It would only be on the results of these investigations that a definitive diagnosis could be made.

34. Evidence was also given by Dr John Saboisky, Consultant Psychiatrist at the Calvary Clinic in Bruce. Dr Saboisky's report is dated 5 July 2005, and he also gave oral evidence before me. In his written report, Dr Saboisky said:

He ... told me that until he had treatment with the anti-psychotic drug Risperidone he had been too frightened to tell people about what was going on in his head. In particular, he reported to me that he had been hearing voices for about three months before and that he had not admitted to them because he was instructed by them not to speak about anything to anyone. He then went on to elaborate a very complex delusional system involving four characters: God, Asamel the Goddess, the devil and Spector which he referred to later as "my power".

He told me that he has no recollection of attacking Adrian Ford but he does have some memory of attempting to kill himself by running away and in front of cars. He did indicate that on the night of events the voices were telling him that "Happy was trying to kill me". "Happy" was his term for Adrian. He told me that the three different voices, God, Goddess and the devil had a complex relationship with themselves and also with him. He said they gave him powers and also burnt him.

35. Dr Saboisky's assessment in his report is as follows:

1 I believe he suffers from paranoid schizophrenia which may have been induced and perpetuated by the use of intravenous methamphetamine or cannabis and the many other drugs he has used. I believe he is still psychotic despite the fact that he has been away from drugs for nearly five months and has been on a moderate dose of antipsychotic medication for about four months.

2 & 3 With the benefit of hindsight and his recent disclosures of auditory hallucinations coupled with an extensive delusional system I believe he was psychotic for about three months before the incident. This was confirmed by his flatmate who sought the assistance of the CAT team. At the time of the offence he was hearing auditory hallucinations and was firmly of the view that he was going to be killed. He was also of the view that his flatmate may want to kill him and clearly after he was briefly incarcerated at The Canberra Hospital he felt that the flatmate was stealing from him and had been responsible for his incarceration in the hospital against his will. The evidence points to the fact that he was deluded at the time of attacking Mr Ford. He attacked him to protect himself from being killed.

4 His prognosis is guardedly optimistic. He no longer fears that he is going to be killed and is very relieved about that. He is able to talk frankly about his psychotic symptomatology but he continues to hallucinate and believe the delusional material which he reported to me. In my view his antipsychotic medication needs to be increased or changed to gain better control.

5 He needs long term psychiatric care, regular antipsychotic medication and outside of a prison setting I would be inclined to use injectable Risperidone to ensure compliance. He clearly needs to stay off all psycho-stimulant medication especially amphetamines as in all probability it will rekindle his psychoses even in the presence of his antipsychotic medication.

6 The likelihood of future violence is very difficult to predict even if he complies with treatment. Given what has happened and the fact that he continues to be symptomatic despite antipsychotic treatment I would recommend that he be treated in a secure psychiatric facility until such time as his paranoid psychoses comes under significantly better control.

36. I accept the opinions expressed in this report. However, the report, valuable thought it is, does not address the precise requirements of s 320 of the Crimes Act. An acquittal on ground of mental impairment requires the accused to establish, on the balance of probabilities, that at the time of the alleged offence the accused was, as a result of mental dysfunction or mental illness, incapable of knowing what he was doing, or was incapable of understanding that what he was doing was wrong. There is no doubt that at the time of the attack on the complainant, the accused was suffering mental dysfunction or mental illness.

37. Dr Saboisky in the witness box was asked whether the accused `... seemed to be aware of what he was doing...', to which Dr Saboisky said:

I think he clearly formed an intent to hurt Mr Ford. But I think he had a mistaken belief at the time that Mr Ford was going to kill him or threaten him in some way.

What does that mean?---Means that at the time of the offence he was deluded, he had a false belief which had no basis in fact.

38. Of the clear differences in disclosure by the accused to Dr George and disclosure of the history of hearing voices and being delusional given by the accused to Dr Saboisky, Dr Saboisky said:

People who have paranoid schizophrenia are totally mistrustful, extremely guarded, extremely defensive and they usually don't disclose their history for fear of consequences. It doesn't surprise me at all that he would not disclose his delusional material until such time as he was appropriately treated.

39. After his evidence in-chief, I asked Dr Saboisky directly:

Doctor, was he incapable of knowing what he was doing when he attacked Mr Ford with a machete?---I think he was capable of knowing what he was doing. I think he was capable of knowing that he was using a machete to inflict harm.

Was he incapable of understanding that [what] he was doing was wrong?---I think that at the time, he was firmly of the view that it was either his life or Adrian Ford's life.

Yes, but was he in that belief incapable of understanding that what he was doing was wrong?---It's a very difficult question to answer.

I know, but it's the question that I have to answer?---Sure, sure.

Well I'll come back to the fundamental question, on the balance of probabilities was he incapable of understanding that what he was doing was wrong?---I think his mental state was so disturbed he was incapable of making a distinction between right and wrong at the time because he was so intensely delusional.

41. As a result of the evidence of Dr Saboisky, and in particular the opinion expressed immediately above, I am satisfied on the balance of probabilities that at the time of the attack on the complainant by the accused, the accused was, as a result of mental dysfunction or mental illness, incapable of understanding that what he was doing was wrong.

42. Accordingly, I enter a verdict of acquittal on the charge of intentionally inflicting grievous bodily harm on the grounds of mental impairment. I do so because, pursuant to s 321(a) of the Crimes Act, the Court considers that verdict appropriate, and the prosecution agrees to the entering of that verdict as is required by s 321(b).

43. Section 324 provides:

(1) If an accused is charged with a serious offence and is acquitted on the grounds of mental impairment, the Supreme Court shall order that the accused be detained in custody until the tribunal orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.

(2) If the Supreme Court is satisfied under subsection (2) it shall make an order accordingly.

44. Section 308 provides:

For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:

(a) the nature and extent of the accused's mental dysfunction or mental illness, including the effect it is likely to have on the person's behaviour in the future;

(b) whether or not, if released -

(i) the accused's health and safety is likely to be substantially impaired; or

(ii) the accused is likely to be a danger to the community.

(c) the nature and circumstances of the offence with which the accused is charged.

(d) the principle that a person should not be detained in prison unless no other reasonable option is available.

(e) any recommendation made by the tribunal as to how the accused should be dealt with.

45. Having considered the criteria for detention in s 308, I am not satisfied that it is more appropriate to order the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.

46. I therefore order that the accused be detained in custody until the tribunal orders otherwise.

47. Section 302 of the Crimes Act provides:

(1) If, under section 323 or 324, the Supreme Court makes an order that the accused be detained in custody until the tribunal orders otherwise, the court shall indicate whether, if the accused had not been acquitted, it would have imposed a sentence of imprisonment.

(2) If, under subsection (1), the Supreme Court indicates that it would have imposed a sentence of imprisonment, it shall nominate a term in respect of that offence, that is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence.

48. Pursuant to s 302(1), I indicate that if the accused had not been acquitted, the Court would have imposed a sentence of imprisonment. It is necessary, under s 302(2), for the Supreme Court to nominate a term in respect of the offence of intentionally inflicting grievous bodily harm which is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence.

49. I have had the benefit of a summary of sentences that have been imposed in respect of intentionally inflicting grievous bodily harm. The circumstances of each case, of course, vary significantly. In R v McDermott [2003] ACTSC 1; (2003) 172 FLR 1, Higgins J entered a verdict of not guilty on the grounds of mental impairment in a case where the accused had been charged with attempted murder. Higgins J, as he then was, indicated that the term of imprisonment that would have been appropriate was ten years. The objective circumstances of the present offence are very close to attempted murder. The conduct was extremely serious and the consequences for the complainant very serious and ongoing, as the victim impact statement by the complainant establishes.

50. Pursuant s 302(2) of the Crimes Act, the best estimate of the sentence I would have considered appropriate if the accused were convicted of intentionally inflicting grievous bodily harm on Adrian Paul Ford is seven years imprisonment.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender

Solicitor for the Crown: Office of the Director of Public Prosecutions