On 16 August 2018, the accused, James Patrick Graf, was charged with the murder of his father, Lance Graf, at the home at which they were living in Gol Gol, a town in southern New South Wales near the Victorian border. In due course he was committed to this court for trial.
As will be seen, the accused has a long history of mental illness and an established diagnosis of schizophrenia. An issue arose as to his fitness to stand trial, and on 9 December 2019 that issue was tried before Hamill J: R v Graf [2019] NSWSC 1767. His Honour received the reports of two respected forensic psychiatrists: Dr Sathish Dayalan, retained on behalf of the accused, and Dr Yvonne Skinner, retained by the Crown. In a report of 1 April 2019, Dr Dayalan expressed the view that the accused was not fit to stand trial. Dr Skinner arrived at the same view, expressed in a report of 16 August 2019.
There was subsequently some improvement in the accused's condition while in custody, such that he appeared to have become fit. However, in late November there was a marked deterioration in his condition. Before Hamill J Dr Dayalan and Dr Skinner gave evidence confirming their original view that he was unfit, as did his treating psychiatrist, Dr Reading. That was his Honour's conclusion in his judgment of 9 December 2019.
In the course of that judgment, at [12]-[13], his Honour referred to the well established authority on the issue of fitness: R v Presser [1958] VR 45 at 48 and Kesavarajah v The Queen (1994) 181 CLR 230. His Honour was satisfied that the accused understood that he was charged with the murder of his father. However, he was doubtful that he had the capacity to understand the court procedures and the nature of the proceedings. His Honour also doubted that he had the ability to understand the substantial effect of evidence against him and was satisfied that his capacity to make out his defence and to instruct his legal representatives was "severely compromised": [25]-[26]. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), his Honour referred the accused to the Mental Health Review Tribunal and remanded him in custody.
At a review that same month, the Mental Health Review Tribunal directed that the accused be transferred from the unit where he was being held to Long Bay Hospital for care and treatment. That placement and treatment proved to be beneficial, such that at a further review on 19 June 2020, the Tribunal determined that he had become fit to be tried. The Tribunal received evidence of his progress under treatment by Dr Reznik and his registrar, Dr Chowdhury.
The Tribunal reported as follows:
On 19 May 2020, Mr Graf's fitness to stand trial was assessed by Dr Chowdhury and Dr Reznik. Mr Graf clearly understood the charges and the pleas available to him. He had a good general understanding of the roles of the Judge, prosecution, defence and jury. Mr Graf felt that he would be able to follow proceedings in court and instruct his legal team. He was able to explain to his treating psychiatrists his role in the death of his father. Dr Chowdhury said that Mr Graf's interview was a long one and he was able to maintain good concentration.
Dr Chowdhury noted that Mr Graf is prescribed three medications for his mental health. It is likely that his mental health will continue to improve, with consistent medication compliance. By the time of a trial, his mental health may have improved further.
Dr Chowdhury was asked by the Tribunal whether Mr Graf's mental health would be unsettled by a trial that would necessarily focus on his father and the circumstances of his father's death. Dr Chowdhury said that he thought that Mr Graf would be able to cope with this stress.
From the observations that the Tribunal was able to make in its video link hearing, Mr Graf appeared to follow the Tribunal's discussion and respond appropriately to questions when asked. He did not appear distressed. Although shorter and less detailed than a trial, the discussion at the Tribunal hearing did cover the topics of Mr Graf's mental health and his father's death.
In accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act, the Tribunal notified the court of its determination and the matter came before me two days ago, on 13 October 2020.
In further recent reports, Dr Dayalan and Dr Skinner also concluded that the accused is now fit. Dr Dayalan interviewed the accused on 4 September 2020 and, in a report of 11 September, found that he understood the nature of the charge, and was able to identify his plea and to give a rational reason for his decision. The doctor considered that he would have the ability to follow the court proceedings in a general sense and understand the significance of evidence presented against him, although he may need regular breaks during the proceedings so that his counsel could "explain and repeat key information". The doctor observed that at the interview his thinking process did not appear to be significantly impaired by his psychotic illness, he was able to demonstrate logic in his reasoning, and would be considered to have "sufficient capacity to decide on a defence".
Dr Skinner interviewed the accused on 17 September 2020, and provided a report of 25 September. The doctor reported that during her interview he was able to engage in reasonable conversation and showed no signs of psychosis. She raised the issue of his ability to cope with the stress of a trial, noting that he would likely be distressed by the material presented and might require additional medication in the event of a prolonged trial. Nevertheless, she noted that he had confidence in his legal representatives and believed that, with assistance from his treating doctors and those legal representatives, he is "fit to plead and to stand trial".
Dr Skinner concluded:
Mr Graf is capable of entering a plea to the charge. He has some general understanding of the court proceedings and he reports that he has discussed these issues with his solicitor. He was aware of the functions of officers of the court. I think he would be able to understand the substantial effect of evidence from the prosecution and he could be assisted by explanation given by his legal counsel.
I believe he is capable of making a defence or answering the charges against him.
I am satisfied that the accused is fit to stand trial, and I announced that finding on 13 October.
[2]
The trial
Accordingly, the accused was then arraigned. He pleaded not guilty by reason of mental illness, and the defence of mental illness is the only issue in the case. The trial proceeded before me, sitting without a jury. There is agreement between the parties that the defence is made out.
[3]
The evidence
I received in evidence an agreed statement of facts and the material upon which it is based. Apart from the evidence bearing on the defence of mental illness, that statement is an adequate summary of that material.
The statement of facts records:
1. The accused was born on 4 March 1992, and the deceased on 8 December 1958.
2. The accused lived at 12 Wadsworth Drive, Gol Gol with the deceased and his mother and wife of the deceased, Lorraine Graf.
3. At the age of 19 years the accused was diagnosed as suffering from schizophrenia. The accused was taking medication for this condition up until about one month before the offence.
4. On 16 August 2018 at 6:06pm the accused called triple zero and initially reported that unknown persons had stabbed his father before requesting police attendance. About 6.l5pm, Constables Matthews and Swarbrick were called to 12 Wadsworth Drive, Gol Gol. Upon their arrival they found the deceased on the dining room floor with numerous wounds to his neck and extensive bruising to the right side of the face. There was a large amount of blood pooled on the floor around the deceased. The accused was found inside the house and detained. While Constable Swarbrick returned to the police vehicle to get a first aid kit, the accused was asked by Constable Matthews what had happened. The accused responded, "He was trying to sexually assault my friend and take me with him." He later volunteered, "I punched and stabbed him".
5. Constable Swarbrick returned, and Matthews asked where the weapon was. The accused replied, "I threw it over there", nodding towards the kitchen area. Matthews asked what it was, and the accused replied, "a knife".
6. The accused complained of a sore hand and Matthews asked what was wrong. The accused replied, "It's all swollen from punching him in the face".
7. The accused was placed under arrest, cautioned and eventually conveyed to the Dareton Police Station.
8. First aid attempts were made by police, however the deceased died at the scene.
9. Police recovered a stainless steel kitchen knife from the home which appeared to have blood stains on it. The tip of the knife was broken off and could not be found at the scene.
10. On post mortem the medical examiner noted:
1. The cause of death was the combined effects of stab wounds to the neck and cranio-facial trauma.
2. Several stab wounds to the neck with a penetrating injury to the right internal jugular vein.
3. Stab wound to the right supra orbital ridge with a blade tip embedded in the bone.
4. Extensive craniofacial trauma with subarachnoid haemorrhage.
5. A blood alcohol level of 0.069g/100ml.
6. That there were no obvious "defence" injuries to the hands or arms, suggesting the deceased had been rapidly overcome.
7. The limbs were normal with dried blood spatter on both hands and forearms.
1. Subsequently an expert compared the broken knife and the blade tip which were found to match with the fractured edge, striations and stretch marks all aligning.
2. The accused was spoken to whilst in custody where he was arrested for the murder of Lance Graf and cautioned.
3. The accused participated in an electronically recorded interview with his brother in law as a support person. During the interview the accused appeared to police to be incoherent and confused. His responses included:
1. When first asked what he could tell police about the death of his dad earlier that night, he said "Um, um, he threw collateral timing at me so, um, I shoved him and, um, um, he tried to raise my hearing over my roof. So, um, so I, um whimsicalised him..." (Q&A 59)
2. The only persons present were he and the deceased. (Q&A 83 and 145)
3. "[The deceased] wanted to eloquent a piece of deficit from his brain tissue that was just not within my grasp to create a frontal mean. So, I pushed him from the rear, from the shoulder and he whimsicalised me. So, um, he confiscated using the soundwave, so I punched him in the jaw and he went down". (Q&A 75)
4. He said the accused was cooking food in the kitchen when the deceased came home and "saw some plates on the kitchen...and he proposed opera...which is what he does every week...and I was waiting for him to calm down...and he kept on inquisitating me so I left and walked away...I came back again and I threw some rubbish in the bin". (Q&A 87)
5. "He was princifying a shout, based on how stupid I was because I failed to do the dishes". (Q&A 94)
6. He had started to cook sausages for himself but stopped "because I got a bit stressed, so I turned it off cause I couldn't make the meal". He then walked out and saw the deceased who "shouted at me for not, for seeing the uncleaned bowls on the table, that the plates on the table. ..that were unclean and that's what started it". (Q&A 475 - 480)
7. He said that the deceased was "sprawled out" because he got hit. (Q122)
8. At Q328 He agreed that the deceased was "decked" by him, saying "Yeh I was goddamn decking him".
9. When asked if the deceased was alive or dead when "sprawled out", he replied "My only option was to do what I just said I did, and it was, um, to get arrested" (Q&A 127). When asked why that was his only option, he replied, "cause I knew that if he woke up I would have been in the fuckin' deep hell".
10. That "he was breathing so hard that I knew that he was gunna call the police and just knock me out". (Q&A 312)
11. He agreed that he did what he did to stop the deceased talking. (Q&A 319)
12. When asked about what injuries the deceased received, the accused replied, "he got palm reckoned" and when asked to explain that, he replied, "It means his back was turned so I showed him the right hand instead of the left". When asked what injuries he had the accused replied, "He had I thi...he had probably a broken jaw line...and I think I broke his nose." (commencing Q&A 129)
13. When asked who occasioned these injuries he replied, "he technically enforced them...from his own mouth". (Q&A 136)
14. At Q146 Police suggested that there was a knife involved, the accused replied "Lance was my discussant. And he would have gone down for anything that I did to him just to make sure he couldn't, just couldn't see it through".
15. When asked what might have triggered him to act the way he did, he replied, "yeah, I just wanted to make sure that he stopped serving dinner every night like with paprika on top". (Q&A 263)
16. When asked who of the two of them had the knife (Q149) he replied, "he drank milk and he inducted it on the table. So, milk is not a knife but is what starts the mind, so I picked up the knife and cut him".
17. He said he got the knife from the kitchen. (Q&150)
18. Asked where he struck the deceased with the knife he replied, "I struck him under his fuckin' beard". (Q&A 154)
19. He said that prior to the physical altercation they "weren't in a conversation...he pointed the magic finger and then he walked off. So, I pushed him, then he fell onto the deck, he tried to get up, he tried to exhilarate his urn so I punched him in the jaw and he went down. He tried to get up one more time by covering his head. So, I decked him in the jaw again with this hand". (Q&A 322)
20. At Q325 he described that the deceased then put his hands over his own head to protect himself. After that he said that the deceased "started apologising in a really mismannered way cause he knew what he was throwing at me did not have an after mean setting in that instance, not considering how things spread apart. What I mean is he was just flirting of why he was so pathetic as he was substantiating why he was getting decked".
21. The accused admitted drinking two cans of beer before the offence (Q&A 221). He denied illicit drug use and specifically denied using synthetic cannabis. He admitted that he had ceased to take his prescribed medication a month before.
22. During the interview the accused complained that his hands were injured. At Q 176 he was asked how he was injured and he replied, "cause I decked him one because he tried to strangle me". When asked for more information he replied, "Tried to breathe without a summit and pull me into retro gear so that he could slap me and then call the police on me".
23. When asked if he had any injuries from being strangled, he replied, "He tried to grab a weapon off the bench, so I held him by his shirt and I threw him underneath the table and then I kicked his head". (Q&A 181)
24. When asked how he got a swollen hand, he replied, "he reached for an object, so I struck him several times in the jaw". (Q&A 195);
25. When asked how the confrontation began, the accused replied, "Um he threw a romantic headbutt at me, so I decked him to the floor, I stomped his face and I grabbed a knife and I cut him under the beard...cause he was still breathing and I knew that he was going to murder me unless I fucking ended him". (Q&A 272 - 274)
26. Police asked if he thought that he had to do what he did or else the deceased was going to murder him and he agreed, saying "uh huh, cause he doesn't skip business with his brother" and explained that the deceased and the brother went to court "cause I knew when I was beating him up on the floor that if he woke up and had the first word he would fuckin' all raised promortal existence from the sexual genome and would be just castrated". (Q&A 275 -277)
27. Police played the triple zero call to the accused (commencing Q506) and then asked at Q524 to go over his complaint that the deceased had grabbed him. The accused said that the deceased had grabbed him because the accused had taken hold of him by his shirt.
[4]
The Defence
It is not in dispute, and I am in any event satisfied beyond reasonable doubt, that the accused caused the death of the deceased by inflicting upon him the violence recorded in the agreed statement of facts. It is at this stage that the defence of mental illness falls to be determined: Hawkins v The Queen (1994) 179 CLR 500. The effect of s 38 of the Mental Health (Forensic Provisions) Act is that the accused must be found not guilty by reason of mental illness if it is established that at the time he inflicted that violence he was "mentally ill, so as not to be responsible, according to law" for his actions. The accused bears the burden of establishing the defence on the balance of probabilities.
Whether the accused was not responsible in law for his actions because of mental illness is to be determined according to the common law. The principles have their origin in the nineteenth century M'Naghten Rules which have been consistently applied in modern authority. Expressed in contemporary terms, what must be established is that, due to a disordered state of mind engendered by a mental illness, the accused either did not understand the nature and quality of his acts or, if he did, he did not know that they were wrong. (The nineteenth century formulation uses the expressions "defect of reason" resulting from a "disease of the mind".)
The focus in the present case is upon the second of those alternatives, his knowledge of the wrongfulness of his conduct. The determination of that issue was elucidated by Sir Owen Dixon in his summing up to a jury in R v Porter (1933) 55 CLR 182 at 189-190, as follows:
The question is whether he was able to appreciate the wrongfulness of the particular act he was doing at the 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.
[5]
The psychiatric evidence
In their initial reports both Dr Dayalan and Dr Skinner traced the accused's psychiatric history over the years leading up to the time of the offence, based not only on the accused's account but also on available medical records and, in Dr Skinner's case, the observations of his mother and other relatives recorded in statements which are in evidence. I note that in her statement his mother said that she and the deceased "never had a problem or had any hassles" with the accused. She concluded the statement with the observation that she could not believe that the accused "would do what he has done". She found it "so hard to believe".
In her report, Dr Skinner noted signs of mental illness in the accused from the age of 14, and his diagnosis of schizophrenia at the age of 19. She also noted trials of medication from 2015, including clozapine which, unfortunately, caused cardiac complications. He had shown only a limited response to multiple other medications and, as noted above, had ceased taking any medication at least a month prior to the offence.
It is unnecessary to examine this history any further. Both doctors recorded the well established diagnosis of schizophrenia. Both of them also described his presentation and treatment after his arrest, but that need not be examined for present purposes.
Dr Dayalan and Dr Skinner were agreed that the defence of mental illness was available to the accused. In his first report Dr Dayalan wrote:
Mr Graf was noted to be grossly thought disordered in the police interview soon after the alleged offence and had continued to present with disorder in his thought form at the time of assessment following his incarceration. He had also expressed odd beliefs about his father that would be regarded to be delusional in nature. It was noted that he had stopped taking his antipsychotic medication a month before the offence. Given his established diagnosis of schizophrenia, it would be reasonable to assume Mr Graf had experienced a relapse or exacerbation of his acute psychotic symptoms at the time of the alleged offence. He would therefore be regarded to have been suffering from a disease of the mind at that time.
Mr Graf had exhibited disorganised thinking pattern and had described a number of delusional beliefs in a thought disordered manner at the time of the police interview. He had continued to present with delusional beliefs following incarceration. Given the presence of delusional beliefs and disorganised thinking pattern, he would be regarded to have had a defect of reasoning at the time of the alleged offence.
Dr Dayalan considered that the accused's actions at the time of the offence and his limited recollections in the interview indicated that he had an understanding of the nature and quality of his actions at the time. However, he concluded that, given the "acute confusion associated with his psychosis and a number of delusional beliefs involving his father", he was "probably unable to appreciate the moral wrongfulness of his actions".
Dr Skinner dealt with the defence briefly in a report of 18 November 2019, but more comprehensively in her report of 25 September 2020. In that report she noted the reports of relatives of the accused becoming more disturbed around the time of the offence, suggesting that his mental state had been deteriorating. She also noted that his behaviour during the offence was quite out of character, as he was reportedly never violent or aggressive. Equally, it was reported that he had a good relationship with his father and that his father had been supportive of him.
Dr Skinner described his recorded interview with police as "at times incoherent". She observed that he did not provide a reasonable account of what had happened and used unusual language. She considered that he "demonstrated thought disorder, there was no logical sequence in his explanation and he was not able to explain what had happened or why he had acted as he did". Applying the legal test for the defence, she considered that at the time of the offence "Mr Graf either did not know the nature and quality of his actions, or if he did know the nature and quality, he did not know that the acts were wrong".
[6]
Verdict
The evidence presented on this issue is compelling, as the Crown prosecutor accepts. I am satisfied that this offence was the product of the accused's mental illness. Like Dr Dayalan, I consider that he did know the nature and quality of his actions at the time but I am satisfied that he did not know that they were wrong, applying the test enunciated by Sir Owen Dixon in Porter. The defence of mental illness is made out.
Accordingly, I find the accused not guilty by reason of mental illness. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act, I order that the accused be detained at Long Bay Hospital, or such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law.
[7]
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Decision last updated: 15 October 2020