R v Kapesz

Circumstances of the offending

1. At the special hearing the Crown case was documentary and the Crown bundle included an agreed summary of the Crown case which included an outline of the offending which maybe summarised as follows.

Count 1 - Wound with intent to cause grievous bodily harm

1. At about 3.30pm on Tuesday 5 June 2018 at Brookvale, Duane Amohanga met a friend at a bus stop on the eastern side of Pittwater Road. Mr Amohanga noticed the accused standing behind a building pillar. The accused was wearing a reddish bucket hat and a hoodie.
2. Mr Amohanga and his friend walked across Pittwater Road. The accused was seen to run up behind Mr Amohanga and stab him in the back in his right shoulder where Mr Amohanga suffered a wound. The accused ran away.
3. Mr Amohanga was taken to Royal North Shore Hospital via ambulance and had suffered a 3cm longitudinal laceration between the ribs on the upper back overlaying his scapula. The wound was closed with 3 sutures.
4. CCTV footage from the nearby Warringah Mall showed the accused in the area at the time wearing clothing described by witnesses.
5. The accused was found to be in possession of that clothing the following day.

Count 2 and the alternative Count 3

1. At about 7.30am on Wednesday 6 June 2018, Jaime Morris was delivering bottles of water to premises in the Pitt Street Mall. The accused approached him and asked him for a cigarette, when Mr Morris declined to give him a cigarette the accused asked him about a tattoo on his face by saying, "what's the teardrop meant to be on your face? Is that your gang? What's your fucken gang's name?"
2. Mr Morris told the accused the "fuck off" and saw him walk away.
3. Mr Morris made his delivery and when he returned to his truck for a second load, the accused approached Mr Morris and stuck him on the head. Mr Morris fell unconscious to the ground. When he regained consciousness a woman told him, "You've been king hit and he had ran off in that direction", meaning towards the GPO. CCTV footage of the area showed the accused leaving the area by going through the QVB building.
4. Mr Morris was treated at the Prince of Wales Hospital for a soft tissue injury at the right side of his face (contusion) and to his neck (superficial abrasions). He suffered a laceration to his lip and his inner lip wound was closed with sutures.

Count 4

1. At about 1.30pm on Wednesday 6 June 2018 Paul Ravisa saw the accused sitting by himself at a bus stop near Wynyard. Mr Ravisa joined a queue for the bus to Manly. The accused was observed to approach him from behind in the queue and stabbed him 3 or 4 times around his neck. Mr Ravisa touched the area and noticed blood on his hand. He saw the accused run up stairs to Wynyard Park and gave chase however he lost the accused and returned to the bus stop where he was rendered assistance and a witness agreed to accompany police officers back to City Central Police Station to provide a statement. Along the way that witness recognised the accused who was then stopped by Police and arrested.
2. The initial interactions between Police and the accused were recorded on body worn video. When asked about the incident the accused said, "I am doing every job for the voices". When asked did he have anything to say about the stabbing he said "I have got schizophrenia. They made me do it. They wanted me to do it". He told the police he did the stabbings because the victims, "raped my girlfriend" and/or "they threatened to rape my girlfriend". The accused also told Police he has schizophrenia and that he was a member of the French Foreign Legion.
3. The accused told police that he had the knife in a garden bed near Wynyard and offered to show them where the knife was located. He volunteered to police that the knife had been used by him twice, once at Wynyard and once the day before in Brookvale. After the knife was located the accused admitted that it was the knife that had been used by him at Brookvale.

The accused's ERISP interview

1. The accused participated in an ERISP interview following his arrest in the presence of a support person. During that interview he told Police that he was a hired hitman and had done what he had been told to do by voices. He told Police that he was schizophrenic and that he had been working for a government agency. He further told Police that he was wearing a US Marine hat and that it was a hired hit from the US Marines.
2. The accused admitted that the knife that was found was used by him to stab the man at the bus stop and it was also used by him to stab the man at Brookvale the day before. He also told Police that he was part of the French Foreign Legion, as well as the US Army.
3. The Crown bundle contained the witness statements, photographs, expert certificates and police statements to establish the actus reus in respect to each of the offences in counts 1, 2 (and alternative Count 3) and Count 4 on the Indictment. It also contained video discs of CCTV footage of the incidents comprising counts 1 and 4, and of the ERISP interview, which I have viewed.
4. The Crown bundle also contained two reports of Professor D. M. Greenberg dated 14 November 2018 and 13 February 2020. In the first of those reports, Professor Greenberg provided his opinion on each of what are known as the Presser criteria (R v Presser (1958) VR 45, R v Kesavarajah (1994) 181 ALR 246) and concluded that the accused at that time was unfit to plead and unfit to stand trial on the Indictment as it then stood.
5. Professor Greenberg was qualified by the ODPP and set out the circumstances of the offending he had derived from his initial interview with the accused some 5 months after the offences took place. He reinterviewed the accused some 19 months later on 7 February 2020 for the purpose of his report dated 13 February 2020. He took a history that at the time of the offending the accused had claimed that he was starting to go "psychotic". His girlfriend had been imprisoned and upon her release they had argued. He had gone to Brookvale on 5 June 2018 looking for his girlfriend and had been commanded by voices to attack Mr Amohanga "to stop him seeing his girlfriend". The voices told him that he was from the French Legion and the US Army. He had bought the knife one month prior to that date and had it in his bag. After he stabbed the man he ran away and caught a bus to the city and slept on the street.
6. The following morning he woke up and began to look for a cigarette on Pitt Street Mall when he saw a guy with tear drop tattoos on his face. Professor Greenberg took a history that the accused asked the man what the tattoos meant and the man told him to fuck off. The accused walked away however he heard voices saying "go back and hit him" and he recalled punching the man in the face and then running away.
7. Professor Greenberg took a history that later that day the accused followed a man to Wynyard Station. The voices told him to stop the man getting on to the bus that goes to the northern beaches. The voices were demanding that he stab the man and the accused recalled stabbing him in the back 5 or 6 times. At the time he believed he was in the Foreign Legion and the US Army, and that the voices were "overpowering". The accused claimed the voices told him to stab the man because this man had raped and had underage sex. He ran away but was shortly thereafter arrested by police and taken to the police station. When asked by Professor Greenberg whether he believed his actions were right or wrong at the time of the alleged offences, the accused claims that he did not know but that he was "going with the voices".
8. On mental state examination the accused reported ongoing persistent auditory hallucinations. He reported occasionally having visual hallucinations and continued to suffer from residual paranoid delusions secondary to his hallucinations. Professor Greenberg noted that "his insight was fair in regards to his mental illness and need for psychiatric medication."
9. Professor Greenberg reviewed the custody management record of the NSW Police and the accused's ERISP interview. He diagnosed the offender as suffering a chronic schizophrenia disorder ("CSD") with treatment resistant psychotic symptoms and past usage of substance disorder (crystal methamphetamines amongst other substances). Professor Greenberg noted that the accused had a lengthy treatment resistant schizophrenia over many years and had previously been admitted to various psychiatric units and psychiatric hospitals over 25 times prior to the alleged offences. He was under the care of the Brookvale Community Health Centre and had his community treatment order renewed on 14 February 2018. Just prior to the alleged offences, the accused had reportedly ceased his oral anti-psychotic medication and he was late for his Depot injection. He had also used crystal methamphetamine on three occasions in the three months prior to the alleged offences.
10. Professor Greenberg noted that the accused reported experiencing active symptoms of a relapse and exacerbation of this schizophrenia illness at the time of the alleged offences. The evidence of the police officers, the ERISP interview and Justice Health records all support that he was suffering from active symptoms of psychosis (hallucinations, delusions and thought disorder) shortly after his arrest and detention. The facts outlined above supported the bizarre psychotic nature of the offences as did the fact that the victims were apparently strangers.
11. Professor Greenberg opined that the accused qualified for the legal concept of "disease of the mind" at the time of the alleged offences. He was also of the opinion that at the time of the alleged offences, the accused was "labouring under defected reason caused by disease of the mind".
12. Professor Greenberg also opined that it was likely that the accused did know the nature of the quality of his act at the time of the alleged offences and that the act was legally wrong, given that he ran away from the scenes and allegedly hid the knife after the stabbing in the city. However, he was of the opinion of the accused did not know that the act was morally wrong at the time of each of the offences. He was acting from a psychotic mind where he was controlled by voices and acting on delusional psychotic beliefs which lacked in any reality. Professor Greenberg was of the opinion that the accused's defect of reason revolved around his psychotic belief system caused by his pre-existing and exacerbated symptoms of active mental illness. He therefore opined that it is likely the offender has the defence of a mental illness available to him and was likely suffering from a mental illness so as not to be responsible for his actions in accordance with the test set down in R v M'Naghten (1843) 8 ER 718.
13. Finally, Professor Greenberg noted that the offender was currently compliant with his current medication regime and under the care of the Justice Health treating psychiatrists. He still hears voices which give him commands and has visual hallucinations.
14. The Crown bundle also contained two reports of Dr A Ellis, Forensic Psychiatrist was qualified by the solicitor for the accused. The first report dated 16 September 2018 was prepared for the purpose of the accused's fitness hearing. Dr Ellis diagnosed the accused as suffering from schizophrenia and opined that it was likely that a court would find him unfit to be tried.
15. In his second report dated 6 February 2020, Dr Ellis addressed the question of whether there was a defence available for the accused to be found not guilty by reason of mental illness. Dr Ellis set out the psychiatric history of the accused noting that he had first been admitted to a psychiatric hospital at the age of 18 and had estimated that he had 25 admissions since, the longest being for a period of six months. He had been on a community treatment order for many years and his last admission in November 2017 was prompted by non-compliance with his community treatment order. He suffered from chronic hallucinations and his last psychiatric assessment on 11 April 2018 noted that he was hearing voices .
16. Dr Ellis recorded an account of the offences on 5 and 6 June 2018. The accused told him that he did not know why he did what he did. He had a vague memory of the events and told Dr Ellis that he attacked all of the complainants as that is what the voices told him to do. He believed at the time the US Army was doing cyborg testing on him. He believed that he had some vague knowledge of the first victim as they lived in the same area and the victim was from New Zealand. The second victim was completely unknown to him. Other than the voices telling him to stab them, he had no motive to interact with them. In giving that history the accused was clearly referring to the offences in Counts 1 and 4 as there was no knife used in Count 2 or the alternative Count 3. After conducting a mental state examination and referring to the accused's ERISP interview, Dr Ellis stated that he remained of the opinion that the accused met the criteria for a diagnosis of schizophrenia. He also had an historical Substance Use Disorder.
17. Dr Ellis opined that it was likely that a court would find the common law defence of not guilty by reason of a mental illness open to the accused. He had a well established diagnosis of schizophrenia which was evidenced by multiple hospital admissions, treatment under the Mental Health Act and him being enrolled as a current patient of a community mental health service at the time of the offences. His condition was severe in that he had continuous symptoms of delusions and hallucinations coupled with poor insight. His presentation to police and custodial mental health services immediately after his arrest, was consistent with an acute episode of schizophrenia. Further, he had missed a dose of injectable medication just prior to the offending and he had a treatment resistant form of illness that did not respond adequately to ordinary doses of medications.
18. Dr Ellis noted that schizophrenia is generally considered a disease of the mind. The accused's symptoms were most likely active at the time of these offences. Whilst there was no substance use testing to confirm or deny the accused's account of no drug use at the time of the offending, in Dr Ellis' opinion, his symptoms were present whether or not there was substance abuse. Furthermore, the targeting of strangers in the street is typical of response to delusional beliefs in schizophrenia.
19. Dr Ellis also referred to the accused reporting specific delusional beliefs and hallucinatory experiences that would be considered a defect of reasoning. He had a fixed firm belief that he was a hitman, a member of the French Foreign Legion, a member of the United States Army and that he was experimented upon. Dr Ellis describes these as "typical delusions of persecution, grandiosity and precocity" and further opined that his delusional beliefs and hallucinatory experiences meant it is likely that he did not consider his actions morally wrong.

The Defence tender bundle

1. The accused tendered a bundle of documents which became Exhibit 1. It included the following categories of documents: 1. Mental Health Review Tribunal determination and reasons dated 18 October 2019 2. Northern Beaches Community Health discharge summary dated 9 August 2018 3. Brookvale Community Health Centre medical records from July 2017 to July 2018. 4. Manly Hospital Medical Records from January 2014 to April 2018. 5. Justice Health Medical Records from June to July 2018.
2. Having perused the documents contained in Exs 1.2 to 1.5 above, counsel for the accused was asked if she wish to flag any particular part of the medical records. It was submitted that the medical records were placed before the court to support the medical and psychiatric history outlined in the reports of Professor Greenberg and Dr Ellis, and thereby provided support for their concluded opinions. Having perused the documents, I accept that submission.
3. I have also read the determination and reasons therefore of the MHRT dated 18 October 2019.

The Crown Submissions

1. The Crown submitted there was no dispute in relation to the evidence in the Crown bundle and the offences in Counts 1, 2 and 4 were established beyond reasonable doubt. In respect of Count 1, the Crown submitted that the accused targeted the victim as he was about to cross Pittwater Road and ran up behind him and stabbed him in the back. The Crown submitted that the accused deliberately targeted the victim and his ERISP admissions show that he meant to cause serious harm to him. In respect of Count 2, the Crown submitted that the accused targeted the victim either because he declined to give up a cigarette or that he thought that the victim was in a gang. He deliberately attacked the victim when the victim was unaware of his approach and this was done to cause the victim an injury. It was submitted that the victim would have foreseen the reasonable possibility that the victim would have suffered actual bodily harm.
2. In respect of Count 4 the Crown submitted that the accused targeted the victim, ran up behind him and stabbed him 3 times in the back. The fact that he did so shows that he wished to cause the victim some serious injury which was confirmed by his ERISP comments.
3. Count 3 was an alternative to Count 2, in the event that the court was not satisfied that the accused did reasonably foresee the possibility of causing the victim actual bodily harm. However, the Crown submitted that the court would find all the elements of Counts 1, 2 and 4 are established.
4. Finally, the Crown conceded that the expert evidence was unanimous in showing the accused had a defence of a mental illness available to him. By taking the totality of the evidence into account, it was open to the court to find the accused not guilty by reason of mental illness.

The defence submissions

1. Counsel for the accused provided a detailed written outline of submissions regarding the special hearing procedure and supporting a submission that the accused was not guilty by reason of mental illness. It was submitted that this defence arose if it was proved on the balance of probability at the time of the commission of the offences that the accused was labouring under such a defect of reasoning, from disease of the mind that he did not know the nature and quality of the act and that he did not know what he was doing. The onus was on the defence to prove it.
2. It was submitted that the medical expert evidence was unanimous relating to the issue of mental illness. Section 38 of the Mental Health (Forensic Provisions) Act ("MHFPA") provided for a special verdict of not guilty by reason of mental illness.
3. It was submitted that the common law definition of "mentally ill person" applies in New South Wales. As the term is not defined in the MHFPA, the applicable definition in NSW derives from R v M'Naghten (1843) 8 ER 718.
4. It was submitted that in order to sustain a verdict of not guilty by reason of mental illness, the tribunal of fact must be satisfied that; 1. "The accused was labouring under a defect of reason caused by disease of the mind; 2. As a result of which the accused did not know of the nature and quality of his or her act; or 3. If he or she did know of the nature and quality of the act, he or she did not know that it was wrong."
5. The accused had been diagnosed with chronic schizophrenia disorder treatment-resistant psychotic symptoms and a Substance Use Disorder. The submissions then summarised the findings and opinions of Dr Ellis and Professor Greenberg as set out above.
6. The accused submitted correctly that counts 1 and 4, (wound with the intent to cause grievous bodily harm) pursuant to s 33(1)(a) of the Crimes Act 1900 are crimes of specific intent. Counsel then referred to R v Minani (2005) 63 NSW LR 490 in which the Court of Criminal Appeal discussed the approach to be taken by a court in considering mental illness in an offence of specific intent, and at [32] in accordance with the High Court's decision in Hawkins v R (1994) 179 CLR 500 stated the order in which issues should be determined in a case where there is evidence of mental illness is as follows: 1. "Was it the act of the accused which, in this case, cause the malicious wounding? 2. Was he criminally responsible for doing that act? 3. Was that act done with the specific intention required?"
7. The court held that the second question is resolved by a finding that a mental illness had been established. The third question arose 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.
8. Counsel submitted that if the court finds that the accused is not guilty by reason of mental illness, the court is required by s 39 of the MHFPA in making a determination regarding the accused's immediate future. The court has power to order that the person be detained, or released conditionally or unconditionally in the event of ordering detention or conditional release. The court must also advise the MHRT which will thereafter make orders regarding treatment, care, detention and release of the person who will become a "forensic patient".

Determination

1. In R v Zdrakovic [2019] NSWSC 736, Walton J set out the following general principles to be applied in a case where an accused raised a defence of mental illness: "(5) Button J observed in R v Gourlay [2015] NSWSC 67" at [50]: 'If the Crown were to satisfy me beyond reasonable doubt that the accused voluntarily (without reference to any mental illness) did an act that caused the death of the deceased, I would then turn to the defence of mental illness. Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), it is not defined by statute. Its elements were set out well over 150 years ago in M'Naghten's Case (1843) 8 ER 718 at 722 …' (6) In order to establish a defence on the grounds of mental illness, it must be established that, at the time of committing the act causing the deceased's death, the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong. (7) A person does not know the nature and quality of his act if he does not know the physical nature of what he is doing or the implications of it (see R v Porter (1933) 55 CLR 182 ("Porter") at 188). A person does not know what he was doing was wrong when he does not know that it is wrong according to ordinary standards of right and wrong adopted by reasonable persons: see Porter at 190 and Stapleton v R (1952) 86 CLR 358 at 367. (8) The test under the second limb of that definition was stated by Dixon J in Porter (at 189-190) in the following terms: '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.' (9) A disease of the mind is any disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind (see R v Falconer (1990) 171 CLR 30 at 75). (10) The onus of proving the defence is on the accused, who must prove it on the balance of probabilities: Mizzi v R (1960) 105 CLR 659 at 664. If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: Tumanako v R (1992) 64 A Crim R 149 at 160-161."
2. His Honour then went on at [11] to refer to R v Minani, supra, and the High Court decision in Hawkins v R referred to above. Applying the relevant principles to the present case, I must determine if it was the act of the accused in respect to each charge, and then move on to consider whether the accused was criminally responsible for doing that act.
3. In respect of each of the offences in Counts I, 2 and 4 the immediate surrounding circumstances of the wounding of the victim in counts 1, 2 and 4 are conveyed by uncontested and agreed evidence as set out above. Further, Professor Greenberg and Dr Ellis agreed that the accused met the criteria for the following diagnoses: 1. Schizophrenia; 2. Substance use disorder
4. Having regard to the totality of the evidence, I accept their opinion that the accused suffered a disease of the mind at the time of the alleged offences and that he was labouring under a defect of reason caused by disease of the mind. On the balance of probability, I accept the opinions outlined above by both Professor Greenberg and Dr Ellis that the accused was suffering specific delusional beliefs and hallucinatory experiences from which he had a fixed and firm belief that he was a hitman, a member of the French Foreign Legion and a member of the US Army and that he acted in the way he did in respect to each offence upon having been told to do so by the voices in his head. I am therefore satisfied that the defence of not guilty by reason of mental illness has been made out and I find the accused was mentally ill at the time of each of the offences and must be found not guilty of each of the offences in counts 1, 2 and 4.
5. As a result of that finding, there is no need for me to consider the alternative to Count 3 on the Indictment.
6. Having found the accused not guilty by reason of mental illness, the court is required by s 39 of the MHFPA to make a determination regarding the accused's immediate future. Section 39 provides as follows: "39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order."
7. The Crown sought an order pursuant to s 39 that the accused be detained in a correctional facility and Counsel for the accused did not oppose such an order. Having regard to the medical evidence referred to above the accused requires ongoing assertive psychiatric care from the Justice Health Forensic Services. ORDERS
8. I make the following orders: 1. I find Troy Kapesz not guilty of Count 1, that on 5 June 2018, at Brookvale in the State of New South Wales he wounded Duane Amohanga with intent to cause grievous bodily harm to Duane Amohanga pursuant to s 33(1)(a) of the Crimes Act 1900 by reason of mental illness. 2. I find Troy Kapesz not guilty of Count 2 on the Indictment that on 6 June 2018, at Sydney in the State of New South Wales he wounded Jamie Morris and was reckless as to causing actual bodily harm to Jamie Morris pursuant to s35(4) of the Crimes Act 1900 by reason of mental illness. 3. I find Troy Kapesz not guilty of Count 4 that on 6 June 2018 in Sydney in the State of New South Wales he wounded Paul Ravisa with intent to cause grievous bodily harm to Paul Ravisa pursuant to s33(1)(a) of the Crimes Act 1900 by reason of mental illness. 4. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that the accused be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law. 5. I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable. 6. The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Professor Greenberg and Dr Ellis referred to herein.

Amendments 08 April 2020 - Cover Page - Name of Solicitor amended to read Ms E Mason (Legal Aid NSW) 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: 08 April 2020