R v Papanicolaou

Supreme Court of NSW|2021-06-09|Before: Wright J

Judgment

By notice of motion filed on 7 June 2021, the accused, Hanny Papanicolaou, sought to have the trial, fixed to commence on 10 June 2021, vacated.
The application came on for hearing on 9 June 2021 and at the conclusion of the hearing I made the following orders: 1. Vacate the trial to commence on 10 June 2021 in this matter. 2. List the matter in the Arraignments List on 2 July 2021.
On that occasion, I indicated that I would provide my reasons in writing. These are my reasons for making those orders.

Background

The accused was charged with one count that on 19 February 2019, in Sydney in the State of New South Wales, she did murder Marjorie Jane Welsh. The accused was arraigned in the Supreme Court on 7 August 2020 and pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment under s 23A of the Crimes Act 1900 (NSW). This plea was not accepted by the Crown in satisfaction of the indictment.
The accused was born in Indonesia in 1983 and moved to Australia in about 2007, after she married her husband, an Australian citizen.

Prosecution case

The most relevant aspects of the prosecution case are, in substance, as set out in the paragraphs which follow.
In late 2018 and early 2019, the accused worked for a number of clients, including the deceased's daughter and the deceased, as a self-employed domestic cleaner. The accused was a regular gambler, most often playing poker machines at an RSL club. She regularly requested that money be transferred to her by her husband and by other persons to fund her gambling.
The accused cleaned the deceased's house generally once per week, as arranged by the deceased's daughter, usually on a Friday morning. When the accused came to clean the deceased's house, she would park her car in the driveway, go to the front door and wait to be let in by the deceased. The accused and the deceased had a close relationship and the deceased disclosed to the accused that she (the deceased) had sold her previous property for $8 million, which shocked the accused.
On 2 January 2019, shortly after 9.00 am, the accused went to the RSL Club and played the poker machines for about 50 minutes losing $430 during that period. After certain withdrawals from her bank account, the accused was left with $11 in the account. The accused left the Club and drove to the park behind the deceased's house. She gained access to the deceased's backyard over the fence at the corner of the property. The deceased had been in her backyard but, by the time she entered through the backdoor, the accused was inside the house and this is where the deceased first saw her.
The accused immediately began to attack the deceased with the deceased's walking sticks, beating her and breaking two of the sticks in so doing. The accused also hit the deceased in the head, face, chest and arms with decorative, ceramic plates belonging to the deceased. At some stage, the accused removed a kitchen knife from the cutlery drawer and stabbed the deceased in the abdomen about six times.
The deceased was badly injured but crawled towards the back door where she activated an emergency pendant around her neck at 10.39 am. The accused switched off the emergency call unit by taking the cordless telephone through which it was connected and took the knife and left. The deceased got to the back door and called for help and reactivated the pendant. The accused jumped over the back fence and ran back to her car. The deceased identified her attacker as "the cleaner" to the police and ambulance officers who attended soon after.
The accused drove home discarding the knife and the cordless telephone in a bin in Canterbury and the shirt she was wearing near her home. She spoke to her husband but was upset and left soon after. The accused was located and arrested and she informed police where she had discarded the knife and clothing, which were located along with the telephone. The accused was interviewed by police and she gave a relatively detailed account of what she said occurred, including that the deceased accused her of stealing $50, attacked her with a walking stick and had the knife in her hand. It was also said that the ceramic plates had fallen off the table during the struggle.
Unfortunately, the deceased died on 19 February 2019 due to complications of blunt force head injury and stab wounds to the chest and abdomen.

Defence response and related documents

The defence response, provided in accordance with s 143 of the Criminal Procedure Act 1986 (NSW), expressly stated that the accused intended to plead not guilty to murder but guilty to manslaughter on the basis of substantial impairment pursuant to s 23A of the Crimes Act. It was also noted that a notice under s 151 of the Criminal Procedure Act had been provided. That notice indicated that the accused intended to rely on the evidence of Dr Kerri Eagle, forensic psychiatrist, in two reports dated 2 April 2020 and 30 June 2020. In addition, that notice contained the following: "The accused is also exploring the availability of an Indonesian-based psychiatrist to assess the accused, consistently with Dr Eagle's suggestion that a culturally Indonesian transcultural mental health clinician be retained. If such a report is to be relied on by the accused, it will be served as soon as possible."
Dr Eagle had made this suggestion in the second last paragraph of her 30 June 2020 report.

Steps taken by the accused's legal representatives

There was unchallenged evidence from Ms Connell, a solicitor involved in the preparation of this matter on behalf of the accused, as to the unsuccessful steps taken by the accused's legal representatives to obtain the transcultural mental health clinician's report between May 2020 and March 2021. There was also evidence that an Indonesian psychiatrist, Dr Widiasih, was identified and contacted in March 2021. Dr Widiasih conducted a number of assessments of the accused by AVL and Zoom, in Indonesian, in May 2021 and eventually provided a report dated 31 May 2021 which was received by the accused's legal representatives on 1 June 2021. Counsel for the accused received a copy of the report on 2 June 2021.
Based on this evidence, I am satisfied that the accused's legal representatives were not at all dilatory in seeking and obtaining a report from a culturally Indonesian transcultural mental health clinician, as Dr Eagle had suggested.

Dr Widiasih's report - further investigation and consideration

Ms Connell's evidence established that Dr Widiasih's 37 page report included the opinion that the accused "was in a dissociative state at the time of the incident such that she was unable to control her actions", having regard to what Dr Widiasih considered to be symptoms of Post Traumatic Stress Disorder, peripartum depression, problematic gambling as well as borderline personality traits (derived from evidence of impulsivity).
It was noted that this report had not been served because aspects of her opinion required further explanation and clarification, including clarification of the assumptions on which the opinion was based. In this regard, it can be noted that counsel who appeared for the accused, Mr Quilter, properly informed the Court that, in his opinion, there was a distinct possibility that, after further investigations and conferences with Dr Widiasih were completed, her report would not be relied upon.
It appeared to me that there might be a number of reasons why it was very likely that further explanation and clarification of her initial report, in conference with the accused's legal representatives, would be required before a decision could be made on whether her report, or any subsequent or supplementary report, would be relied upon. These reasons might well include that Dr Widiasih was not an Australian medical practitioner and was not familiar with the Australian legal system and was not likely to be aware of the requirements to be satisfied so as render an expert's opinions admissible under Australian law.
In my view, the evidence established that there were issues of real substance raised by Dr Widiasih's report in relation to the partial defence of substantial impairment which, in fairness to the accused, were required to be further investigated and considered as there was a reasonable possibility that those issues could substantially contribute to or strengthen the accused's case under s 23A.
Counsel for the accused indicated that this further investigation and consideration might take as little as a few days. Given the history of the accused's legal representatives' interactions with Dr Widiasih, the need for an interpreter for her, communication across different time zones and countries and the potential complexity of the issues, I was not satisfied that it was certain or even likely that the accused's interests could be adequately addressed and protected by allowing only a few days for the completion of a proper investigation and assessment of Dr Widiasih's report, and subsequent or supplementary reports and her opinions more generally.

The need for an MRI relating to the earlier motor vehicle accident

The evidence also established that both Dr Eagle and Dr Widiasih referred to a motor vehicle accident involving a potential head injury to the accused when she was six years old which led to her being in a coma for two weeks.
Dr Eagle did not, however, go on to give any express opinion in either of her reports linking such an injury to the "abnormality of mind arising from an underlying condition" identified by her.
Ms Connell's evidence established that Dr Widiasih suspected that the accused may have suffered a traumatic brain injury as a result of that accident but she was unwilling to confirm that diagnosis in the absence of radiological examination of her current brain condition. Ms Connell also stated: "Having considered the extensive history taken from Dr Widiasih and the ongoing concern about a traumatic brain injury, I am now of the view that the [accused] should have an MRI and subsequent analysis in order to explore the possibility of that diagnosis."
Mr Quilter indicated to the Court that the matter of an MRI had been raised with Dr Eagle but no definitive answer in writing had, as yet, been obtained from her as to the necessity or desirability of obtaining an MRI. He noted that he anticipated that Dr Eagle would be of the view that "such a process is always beneficial but not of acute importance in this case in her opinion".
Having regard to the evidence, I accepted that, in fairness to the accused, at the least, further investigation needed to be undertaken and consideration, probably in consultation with Dr Eagle and Dr Widiasih, needed to be given concerning whether an MRI should be undertaken and an appropriate radiological report obtained. From what could be discerned from the evidence, it appeared that Dr Widiasih considered such investigations were at least potentially relevant to matters that went to the availability or strength of the partial defence under s 23A. Dr Eagle did not appear to reject categorically its potential relevance.
Once again, investigation and consideration of the question of an MRI was not something that was likely, in my view, to be properly resolved within a few days. Further, if it was determined that an MRI and radiological report was appropriate, it was be a matter of months, rather than days, before those could be obtained, supplementary reports could be provided by Dr Eagle and/or Dr Widiasih and such reports could be served on the Crown.

Consideration

The accused is to face trial on the very serious charge of murder. It is well established that where an application is made by the defence to adjourn a murder trial upon the basis that the defence seeks to explore an issue which may give rise to a defence or partial defence, the Court should be cautious before shutting the accused out from taking such a step: R v Boyd [2017] NSWSC 1099 at [39] (Johnson J); R v Hunter [2013] NSWSC 1713 at [51] (Johnson J).
In R v Alexandroaia (1995) 81 A Crim R 286, the Court of Criminal Appeal formulated the test, at 289, as being whether there was a reasonable possibility that material of substantial assistance to the accused's case would be obtained if the trial were delayed while the relevant enquiries were completed. The Court went on to note, at 290, as follows: "The test is not, of course, whether there was a reasonable possibility that the material obtained would provide a successful 'defence' for the accused. Nevertheless, the strength of the theory being propounded by the accused is relevant to the test as we have stated it, although too much weight should not be afforded to that issue as it is usually impossible to judge the 'defence' fairly in the absence of proper investigation into the evidence available to support it."
As in Boyd at [41], so also in the present case, the Crown accepted, appropriately, that if there was a possibility of a viable partial defence of substantial impairment being available, then the Court would adjourn the trial to allow that aspect to be fully explored.
Having regard to those principles, it appeared to me that in the present case a viable or strengthened partial defence of substantial impairment might be available, depending on the further investigations and consideration in relation to both Dr Widiasih's report and the MRI. In these circumstances and given the time likely require for those investigations and consideration to be undertaken properly, the trial due to commence on 10 June 2021 would need to be vacated if those aspects of the accused's partial defence were to be fully explored.
I bore in mind the strong public interest in a criminal trial, once fixed for hearing upon the basis that the parties were ready to proceed, ordinarily proceeding with expedition, referred to in Alexandroaia at 291 and Boyd at [40]. In addition, I took into account the distress and anguish which may be caused to the family and friends of the deceased by the scheduled trial being delayed as well as the disruption to, and adverse effect upon, witnesses to be called at the trial, if it was delayed.
Nonetheless, in all the circumstances including that: the accused was charged with murder; it was her application to vacate the trial; she was in custody and has indicated her intention to plead guilty to manslaughter based on s 23A of the Crimes Act; there were issues of real substance going to the accused's partial defence under s 23A that need to be fully investigated which would take some time; and, the accused's legal representatives have not been dilatory in taking appropriate steps, I was of the view that justice and fairness required that the trial in this matter be vacated.
Accordingly, I made the orders on 9 June 2021, which have been set out above.

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: 22 March 2023

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