R v Moyano [2016] NSWSC 1485 | Case summary

What the evidence established

Oral evidence was called from a number of witnesses who had heard an argument break out between Mr Moyano and Mr Lee on the afternoon of 5 December 2014 and who had then seen Mr Moyano stab Mr Lee, as well as from the arresting police officer. Evidence of what other witnesses had said in statements made to police shortly after Mr Moyano's attack on Mr Lee, as to what they had seen, was received without objection. Mr Moyano himself had made a recorded statement to police (an ERISP), some hours after his arrest, shortly after he killed Mr Lee. The ERISP was tendered and a transcript of the interview provided as an aide memoir. The summary of the conclusions reached on Mr Lee's autopsy as to the cause of his death was also received without objection.
Oral evidence was also called from Dr Nielssen and Dr Martin. Their 2015 reports were also tendered.
The evidence established, in short, that on 5 December, Mr Moyano and Mr Lee occupied separate rooms at a boarding house at Wetherill Park. Mr Moyano had thrown some chairs and a lounge usually kept on the front veranda of the house, into the neighbour's yard. When he arrived home the neighbour asked Mr Lee, who was working on his car at the front of the boarding house, if they could be removed. Mr Lee approached Mr Moyano, who was in his room. They had an argument, which other occupants of the house heard. Mr Moyano took a knife and followed Mr Lee into the front yard, where he attacked Mr Lee with the knife, stabbing him repeatedly to various parts of his body, thereby causing his death. Mr Moyano then walked away up the road, where he was arrested soon afterwards, with the knife still in his possession.
In his ERISP, while Mr Moyano provided rational answers to some questions he was asked, his irrational and disordered state of mind was then very apparent, both from what he said and how he acted.
Mr Moyano then gave an account of having "poked' Mr Lee repeatedly with his knife, after an argument. He gave an incoherent account of problems that he had earlier encountered, including with other residents, as well as a contradictory account of what had happened on 5 December with Mr Lee. At one point he said he had acted in self-defence, the person he attacked having come towards him while holding something, at another he described arming himself with a knife and following that person outside, where he "poked" him repeatedly. At another point Mr Moyano threatened that he would "poke" other occupants with whom he had various grievances. He also gave an account of having armed himself with a hammer to attack another occupant, who had come to his door, which had not eventuated, he said, because that person did not enter his room. He also expressed considerable concern at having cut himself and having been infected by AIDS, from the blood in which he explained he had earlier been covered.
From what Mr Moyano there said, it appears that he understood the potential consequences of killing a person, including, he believed, imprisonment or a death sentence. He was also aware that he had injured Mr Lee, who he knew had been taken to hospital, but he appeared surprised to learn that Mr Lee had died, which he professed not to believe.
Dr Nielssen's June 2015 report recorded Mr Moyano's history of suffering a chronic form of schizophrenia, as well as his abnormal demeanour on interview in 2015 and the bizarre and irrelevant answers he gave. Mr Moyano then told Dr Nielssen that he intended to plead not guilty on the grounds of self-defence; that he was not claiming mental health; and that Mr Lee's death had nothing to do with that. Mr Moyano also said that he had not had previous disputes with Mr Lee. When taken to his ERISP, he said amongst other things that Mr Lee "should not have been near me with a knife in my hand. It was a simple thing I asked".
At the time of Mr Lee's death Mr Moyano was receiving a disability support pension and was being treated, he told Dr Nielssen, for depression and stress, but he said that he rarely drank alcohol. While he had a prior history of heroin abuse and methadone treatment, he also said that he had ceased all drugs. He was then on medication used to treat schizophrenia.
Mr Moyano had a history of treatment for mental health issues, including admissions to Liverpool Hospital. He had a history of having experienced hallucinations, including in 2003 when he had an apparent fit at the wheel of his car, and a history on admission of suffering auditory hallucinations and delusions of persecution. He was detained under the Mental Health Act 2007 (NSW) from August to September 2003, with a diagnosis of drug induced psychosis. In 2005 he was brought to hospital after complaining to police about hearing voices. He was referred for community care, but in June to August was again admitted to hospital, with a diagnosis of schizophrenia.
In 2006 and 2007 Justice Health records indicated that he was diagnosed to be suffering chronic schizophrenia and a substance use disorder. In November 2009 to January 2010 there was a further admission after Mr Moyano expressed persecutory beliefs regarding neighbours, when he was diagnosed to be suffering schizo-affective disorder and referred to the community mental health team on discharge. Dr Nielssen noted that it was not clear that this referral was taken up.
In custody in 2014 Mr Moyano was observed to be responding to hallucinations of voices, for which he received treatment. Dr Nielssen noted that Dr Martin had concluded that Mr Moyano had a major mental illness, most likely schizo-affective disorder, which had features of both schizophrenia and bipolar disorder and that he would have a defence of mental illness.
Dr Nielssen described Mr Moyano's condition on interview to have included answers irrelevant to questions put to him; the belief that Mr Lee had threatened him, which seemed delusional; and that he was preoccupied with grievances with other residents.
Dr Nielssen considered Mr Moyano's disorganised answers in the ERISP to have been consistent with the presence of untreated schizophrenia. Mr Moyano then appeared to believe that he was undercover and in protection to help police; that he was in danger and lucky to have got out of the situation; that he needed rehabilitation and time in prison; that he had been threatened and attacked; and that he would have to "poke" all the other residents. Mr Moyano still held some of these beliefs on interview, in ways that to Dr Nielssen appeared delusional. His thinking was disorganised and illogical, his registration of information impaired, speaking incessantly, without addressing questions put to him, and having difficulty with spontaneous and orderly retrieval of information. Mr Moyano had some knowledge of recent events, although events described were eccentric and without detail. His intelligence was, however, estimated to be within normal range.
Dr Nielssen diagnosed Mr Moyano to be suffering chronic schizophrenia, a recognised disease of the mind in law, which Dr Nielssen explained produces a pattern of abnormality of mind, consistent with Mr Moyano's history of typical symptoms; his pattern of treatment and presentation on interview; and his history of auditory hallucinations and persecutory beliefs, including in prison. Declining social performance and Mr Moyano's three involuntary admissions since 2003 were also consistent with the diagnosis. Dr Nielssen considered that even if Mr Moyano had been reliably taking prescribed medication, it was probably not sufficient to control his symptoms.
Dr Nielssen concluded that at the time of his offending Mr Moyano was probably aware of the physical nature of his actions in stabbing Mr Lee, but he was deprived of the ability to recognise that his actions were morally wrong, as his perception of events was from the standpoint of his underlying delusional beliefs, that he had been wronged and was in danger. Mr Moyano's grossly disorganised thinking also deprived him of the ability to reason with any measure of sense or composure about the wrongfulness of his action or of the alternatives open to him.
In his oral evidence Dr Nielssen said that it was difficult to know exactly what Mr Moyano was thinking when he killed Mr Lee, but given what he had said in the ERISP, when considered with his actions after he attacked Mr Lee, even if he did have a genuine reason to believe that Mr Lee was angry at him and perhaps threatened him, Mr Moyano's response was nowhere in proportion to those beliefs. Mr Moyano was then acutely mentally ill and his thinking was grossly disorganised and whatever the extent of the threat he had perceived, his ability to consider the threat and the alternative causes of action open to him logically and whether the course he pursued was wrong, were grossly impaired.
Dr Nielssen also explained that schizophrenia involved holding both realistic and bizarre thinking, side by side, for example, knowing that a long sentence for murder would be imposed, but also believing that the person killed was an alien.
When asked about the distinction between understanding that something is legally wrong, as opposed to knowledge that it is morally wrong, the example Dr Nielssen gave was a person who believed they were in mortal danger on delusional grounds, which justified killing someone, but who understood that killing a person was illegal and believed that such an offence should carry a sentence of 25 years, or life imprisonment.
Dr Nielssen's view of the defence of substantial impairment, he explained, was that it would be a bad outcome for a person who needs life long treatment and supervision for a severe form of mental illness, who had available the defence of not guilty on account of mental illness.
Dr Martin had also examined Mr Moyano in April 2015 and was present when Dr Nielssen gave his oral evidence. In his oral evidence Dr Martin explained that he agreed with the views which Dr Nielssen had expressed, including in relation to the distinction between understanding moral wrongfulness and an awareness of legal consequences.
In his report Dr Martin had noted that Mr Moyano was extremely talkative and quickly changed topics, without logical reasons. On interview, Mr Moyano had volunteered an account as to what had happened before his arrest, which included people seeing through brick walls; entering his room; moving and taking his belongings; camping outside his room and leaving a mess; the argument over cleaning up outside his window; and acting in self-defence after he was attacked. Mr Moyano was, however, unable to give Dr Martin a coherent history of his mental health issues or treatments, or his diagnosis, but gave a history of former drug abuse and recent abstention. It was unclear to Dr Martin whether at the time of the offence Mr Moyano had recently taken medication, other substances, or alcohol.
Mr Moyano was also able to tell Dr Martin that he had been charged with murder and that his defence was self-defence, because of death threats of "how he came at me". Dr Martin considered that Mr Moyano had had a disturbed mental state during the ERISP, which was revealed by his lengthy, spontaneous responses in which he appeared to change topic illogically and in a manner suggestive of thought disorder.
Dr Martin diagnosed Mr Moyano to be suffering a major mental illness, possibly schizo-affective disorder, bipolar disorder or schizophrenia, which had not responded to treatment. On interview, he was still presenting with an elevated effect, irritable, pressured in speech and thought disordered, overwhelmingly preoccupied with having been wronged. He was also experiencing manic and psychotic symptoms and while he understood what he had been charged with, he was thought disordered and unable to understand the legal process.
Dr Martin also concluded that at the time of offending Mr Moyano was grossly mentally ill, so as to cause him difficulty in behaving reasonably or rationally; detrimentally affecting his ability to exert control; and impairing his judgment of his behaviour. His state made him likely to over react to perceived threats and potentially to feel provoked, when there was no threat. He was then paranoid and continued to be highly paranoid and psychotic. In the result Dr Martin also considered that Mr Moyano had a defence of mental illness, as well as a partial defence of substantial impairment, given the gross abnormality of his mind.
In his oral evidence, Dr Martin also explained that at the time he stabbed Mr Lee, Mr Moyano was likely to have been aware that he was involved in an altercation and was carrying a knife, but his ability to recognise that his actions were morally wrong was significantly compromised by his mental illness. In cross-examination he explained that while Mr Moyano may have believed he was acting in self-defence, his beliefs then were delusional, informed by the underlying symptoms of his illness. He was angry and paranoid and hyper-aroused as a result, experiencing thought disordered delusions, which probably led to the arguments and behaviour which was out of proportion to any anger or threat which Mr Lee may have expressed or posed, Mr Moyano's ability to behave reasonably and rationally having been impaired by his illness.
Dr Martin also agreed that during police interview some seven hours later, it was possible for Mr Moyano to have held knowledge of the legal wrongfulness of acts which would result in his imprisonment, but with the consequences of his mental illness being moral justification for acting as he had.

An order must be made under s 39(1)

On the evidence, it is apparent that despite treatment he received in custody, Mr Moyano continued to suffer the mental illness on which his defence was made out.
I accept the common view of the psychiatric experts as to the serious nature of that ongoing illness, now chronic schizophrenia. As a result of that illness, Mr Moyano would unquestionably pose considerable risks to members of the community with whom he would come into contact, if not kept in custody. In the result, an order as to his release cannot be made under s 39, because it is not open to conclude on the evidence that the safety of members of the public will not be seriously endangered by his release. To the contrary, that danger is well established by the evidence I have discussed, which means that an order under s 39(1) must be made.
The consequences of these conclusions must be considered. The practical consequences of an order under s 39(1) of the Forensic Provisions Act may be shortly stated. Mr Moyano will thereupon become a "forensic patient" under s 42 of the Forensic Provisions Act and will remain in custody until a decision is made by the Mental Health Review Tribunal, a body established under the Mental Health Act, to release him.
That Tribunal must review his case, as soon as practicable after the s 39 order is made (Forensic Provisions Act, s 44). It may then make orders as to his continued detention, care or treatment, or as to his release.
The Tribunal may not make an order for Mr Moyano's release unless satisfied, amongst other things, that his safety or that of any member of the public will not be seriously endangered by his release (Forensic Provisions Act, s 43). If an order for his release is not made, Mr Moyano will remain in detention, receiving care and treatment, in a place and manner which the Tribunal specifies. After the Tribunal's initial review, it must, at least once every six months, again review his case and must then make further orders as to his continued detention, care or treatment in a hospital, prison or other place, or as to his release (Forensic Provisions Act, s 46).
If the Tribunal makes an order that Mr Moyano be released, that order may be made on conditions, or his release may be ordered unconditionally (Forensic Provisions Act, s 47). If Mr Moyano breaches any condition imposed by the Tribunal or if his mental condition deteriorates after conditional release, so that he may be a serious danger to others, a further order may be made by the Tribunal for his apprehension, care and detention (Forensic Provisions Act, s 68).
The conditions of release which could be prescribed by the Tribunal include matters such as living in a particular place; taking particular medication; keeping appointments with health care professionals; and enrolment in educational and therapeutic programmes, to ensure that Mr Moyano is properly cared for (Forensic Provisions Act, s 75).
Other than under any such future release order, the result of the order I propose to make under s 39 is that Mr Moyano will remain in strict custody. He may be released from these restrictions if given an unconditional release by the Tribunal, or where released on conditions and those conditions expire over time (Forensic Provisions Act, s 51).
However, as I have explained, under this legislative scheme, Mr Moyano will only ever be released if the Tribunal is satisfied on evidence available to it in future, that his safety and the safety of any member of the public will not thereby be seriously endangered.

R v Moyano

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