R v RISI

R v RISI - [2022] NSWSC 862 - NSWSC 2022 case summary — Zoe

[3]

Nature of a special hearing

If there was a jury it would be necessary to explain a number of matters pursuant to s 56(11). I am familiar with all of the relevant provisions of the Act, but there are a number of matters I note in particular.
Section 54 describes what a special hearing is: "In this Act, a special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged."
A person may be unfit to be tried on any ground the court may consider including those described in s 36(1) of the Act: (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following - (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court.
The verdicts that may be delivered at a special hearing pursuant to s 59(1) are: (a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.
The legal and practical consequences of these verdicts are described in ss 60-63. Verdicts of not guilty would have the consequence that the accused would be discharged and no longer held in custody in respect of the present charges. If special verdicts of act proven but not criminally responsible are returned the Court would proceed to make such orders as are appropriate under s 33 of the Act: 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders - (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release.
The accused would necessarily be referred to the Mental Health Review Tribunal pursuant to ss 34 and 67 (unless he were to be unconditionally released).

[6]

23 March 2020

There is no dispute that on the morning of 23 March 2020 Mr Risi used a ladder to access a window and enter the lounge room of the unit of Ms Thornton and Mr Weller. He left through the front door a short time later and then returned the ladder to Ms De Roo's garage. [11]
It also not in dispute that following this Mr Risi returned to the apartment of Ms De Roo and shortly after left the complex and went to Plus Fitness Gladesville. At 7.50am he entered the bathroom at the gym where he changed his clothing and shaved off his beard before leaving at 8.11am. [12]
Later that morning Mr Risi attended the apartment at Bondi of his sister's boyfriend, Dylan Starr. Mr Starr gave evidence that Mr Risi told him that he had "bashed someone pretty badly", and when asked how badly he had hurt him, he responded, 'I don't know but I think pretty badly." [13] Mr Risi asked for "a smoke" and then left. [14]
Mr Risi met Samuel McDowell by chance later in the day at Wynyard. Mr McDowell told him he was going to Byron Bay and Mr Risi asked if he could join him. They drove to Seal Rocks that afternoon and continued to Byron Bay the following day. [15]
The substantial matter in dispute is what occurred within Ms Thornton's and Mr Weller's unit. Mr Risi does not concede he caused the fatal injuries to Mr Weller and committed the assault on Ms Thornton. It is necessary for the Crown to prove these matters beyond reasonable doubt.
The evidence of what occurred in the apartment comes from the account given by Ms Thornton as well as from various forensic experts. Senior Counsel for Mr Risi raised a number of issues with this evidence.
Ms Thornton's account is that she was woken unexpectedly on 23 March 2020 by a man, whom she identified as Mr Risi, standing to the side of the bed holding her white electric guitar in his hand. [16]
Mr Risi struck Mr Weller in the head with the guitar with full force. [17] Ms Thornton only saw the one strike, but she saw that Mr Weller was injured and had blood on him before she witnessed that strike, leading her to conclude that Mr Risi struck the deceased with the guitar multiple times. [18] She threw herself on top of Mr Weller in order to protect him, and her leg was hit by the guitar being swung by Mr Risi. [19] This caused pain and swelling.
Mr Risi yelled, "he'll never hit you again" as she wrestled him for the guitar. He dropped the guitar and proceeded to try to punch Mr Weller who was blocking the blows with his arms. This is supported by the autopsy report which identified bruising to Mr Weller's left upper arm. [20]
Ms Thornton pulled Mr Risi down the stairs and asked him why he did this to which he responded that it was so that Mr Weller could not hurt her again. [21] He tried to encourage Ms Thornton to go with him, but she declined, and he left through the front door. Ms Thornton returned upstairs to tend to Mr Weller.
Ms Thornton's evidence of the timeline of events that followed her returning upstairs was somewhat unclear. She first indicated that she immediately turned on her phone and received a call from her mother (Johann Thornton), who she informed Mr Weller had been attacked. Her mother then called triple 0.
After refreshing her memory from the statement she made on 23 March 2020, she confirmed that several things occurred before she turned her phone on and received the call from her mother: Mr Weller went to the bathroom to wash his head and then returned to the bedroom and lost his balance; Ms Thornton attempted to move him but was not successful; and Ms Thornton attempted to wrap a towel around his head several times but he kept moving it. [22] It was then that she turned her phone on and spoke to her mother, informing her that Mr Weller had been attacked. Her mother called an ambulance, Ms Thornton called her neighbour Samantha Graham, and she continued to tend to Mr Weller.
In contending that the Crown had failed to prove beyond reasonable doubt that it was Mr Risi who caused the injury to the deceased the defence submitted there are a number of significant aspects of Ms Thornton's evidence that are "questionable." [23]

[7]

The white electric guitar

The first issue raised relates to the white guitar which Ms Thornton identified as the item with which Mr Risi struck Mr Weller in the head, causing the fatal injuries. [24]
Ms Thornton's evidence was that the guitar was most like resting against a scarf rack which was against the wall at the foot of the bed when she and Mr Weller retired on 22 March 2020. This is consistent with the diagram she drew for police to show the layout of the apartment on 23 March 2020. [25] When she woke up, the guitar was being held by Mr Risi by its neck with a strong grip and was used to strike Mr Weller in the head. [26] When Ms Thornton witnessed this strike, Mr Weller was already injured with blood on his head.
Senior counsel for Mr Risi contended there were several issues with the identification of the guitar as the weapon used to injure Mr Weller that affected the Crown's ability to prove this beyond reasonable doubt.
First, it was submitted that the position in which the guitar was found by police, being against the scarf rack at the foot of the bed, [27] was inconsistent with Ms Thornton's account of it being dropped to the floor and thereafter not being moved. [28] I reject this as an inconsistency in the evidence. By the time Sergeant Breen arrived at 8.33am and entered the bedroom with his body-worn camera, several people had been moving around the room for a period of time.
Ms Thornton and Ms Graham had both been in the room tending to Mr Weller, and although they both deny that they moved the guitar (Ms Graham did not remember the guitar at all), each of them acknowledged that their memory of the events on 23 March 2020 was flawed due to trauma and alcohol respectively. In a small room which was extremely cluttered with items and within which Ms Thornton and Ms Graham were applying first aid to Mr Weller, it is understandable that the guitar may have been moved from the floor and put against the wall without either of them recollecting that detail.
Another difficulty the defence raised in relation to Mr Thornton's account of the guitar being used as a weapon by Mr Risi was the fact that the guitar had no blood on it, [29] nor were the fingerprints or DNA of Mr Risi recovered from it.
I do not accept that this prevents me from finding beyond reasonable doubt that the guitar was used by Mr Risi to strike Mr Weller. The forensic pathologist who carried out the autopsy confirmed Mr Weller died from a traumatic brain injury caused by blunt trauma to the head. [30] She gave evidence that this was caused by at least one strike to the head with a blunt object. [31]
Photographs of the crime scene reveal that wounding to the head bled substantially; however, the forensic pathologist was not able to say whether or not this bleeding would have been immediate. [32] The absence of blood on the guitar does not eliminate the guitar as the weapon used to inflict the blunt trauma to Mr Weller's head.
As for the DNA, there is evidence that there are various factors that can impact the likelihood and quantity of DNA being deposited on an item, and evidence that if an item is handled by other people after DNA is deposited on it the chance of that DNA being removed is increased. [33] The fact that DNA of Mr Risi was not recovered from the guitar is not evidence that his DNA was never present on the guitar, and does not indicate that he never handled it.
The fact that the guitar was resting upon the scarf rack when police arrived, rather than on the floor where Ms Thornton says it was dropped by Mr Risi, indicates that it was handled by someone before police arrived. It was moved by police when they were making space for paramedics to gain access to and perform first aid on Mr Weller, and for them to be able to move him out of the room. There are therefore at least two occasions when the guitar was handled, and two opportunities to reduce any DNA that Mr Risi may have deposited on the guitar while handling it.
Although there was evidence that DNA could have been deposited on the guitar through means such as dust in the residence, the fact that DNA that matched the profile of Mr Weller was recovered from the damaged area at the base of the guitar lends weight to the Crown case. [34]
Finally, having a report of the deceased having been beaten with a white guitar, and having located a damaged white guitar in the crime scene, I do not accept the submission that a lack of investigation by police into alternative potential weapons is a matter of concern.

[8]

Unaccounted for time in Ms Thornton's evidence

Senior Counsel for Mr Risi submitted that there was unaccounted for time in Ms Thornton's evidence of the sequence of events on the morning of 23 March 2020 which undermined the veracity of her account. Given the centrality of Ms Thornton's evidence to the Crown case, if I were to reject her as a reliable witness that would present significant problems for the case against Mr Risi.
Reference was made to "objective evidence of the timing of the alleged attack", [35] being evidence such as CCTV time stamps, and the time of phone calls made. At about 7.23am Mr Risi was shown on CCTV approaching the units with the ladder, and at about 7.38am he was seen moving away from the units with the ladder. [36] Call charge records show that Ms Thornton received a call from her mother at 8.21am, and that her mother then called triple 0 at 8.23am. This was said to leave about 40 minutes of unaccounted for time in Ms Thornton's account. [37]
I do not accept that this time is unaccounted for. While Ms Thornton initially said that she immediately received the phone call from her mother upon returning upstairs after leading Mr Risi out of her apartment, after refreshing her memory by reference to the statement she made on the day of the events, she confirmed that a number of things occurred before receiving the call from her mother, including Mr Weller going to the bathroom and returning to the bedroom where Ms Thornton tended to him.
It was submitted that even if these events are accepted they do not account "for a particularly long period of time". [38] Ms Thornton herself in evidence commented that it was "hard to recall every little detail, or the order". [39] I am satisfied that in the context of a traumatic event where Ms Thornton was in a state of panic, and where Mr Weller's state was also changing from him being capable of walking to the bathroom and washing his head, and speaking to Ms Thornton [40] , to him being unable to stand and then being unconscious, a period of time such as 40 minutes could pass without notice.

[11]

The legislative framework

The MHCIFP Act commenced on 27 March 2021, replacing the Mental Health (Forensic Provisions) Act 1990 (NSW). The events the subject of this special hearing occurred before the commencement of the MHCIFP Act. However the transitional provisions in Schedule 2 of the MHCIFP Act provide that the 1990 Act will continue to apply to "proceedings for offences commenced before the commencement of Part 3 of this Act" until such a time as "a determination is made as to whether a special verdict should be entered or the defence is no longer being raised." [44] In R v Tonga [2021] NSWSC 1064, Wilson J favoured a narrow interpretation of "proceedings" such that it was concerned with the hearing that commenced when an indictment was presented at the beginning of this special hearing on 14 June 2022. I respectfully agree with her Honour's interpretation. Accordingly, the provisions of the MHCIFP Act apply.
The defence of mental health impairment or cognitive impairment is described in s 28 of the MHCIFP Act: 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions.
Mental health impairment and cognitive impairment is defined in s 4 and s 5 of the MHCIFP Act respectively: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 5 Cognitive impairment (1) For the purposes of this Act, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder.
Under the MHCIFP Act it is for the defence to establish that the accused had a mental health impairment or cognitive impairment such that the accused did not know the nature and quality of the acts or did not know that the act was wrong. This needs to be established on the balance of probabilities.

[12]

Evidence of Mental Impairment

Mr Risi's cognitive and mental health complications appear to date back to his youth. His sister gave evidence that when he was about 18 years old he was struck over the head with a beer bottle causing internal bleeding on his brain. Following this he had surgery and a metal plate inserted, and there was a change in his behaviour. He suffered from depression and posttraumatic stress disorder as a result of the incident. [45] He has also reported to medical professionals that since this injury he has had problems with his memory and with emotional and behavioural control. [46]
There is evidence of Mr Risi seeing mental health professionals over a long period of time. In September 2011 he saw a doctor in relation to his depression, "short fuse", insomnia and stress. [47] In 2014 Mr Risi received a mental health plan in relation to "somatic and cognitive symptoms of anxiety" and "decreased mood". [48]
In 2014 Dr Peter Ashkar conducted a neuropsychological assessment and determined that the brain injury Mr Risi received from the injury to his head when he was 17 "may have damaged the frontal and temporal lobes of his brain and/or the underlying circuitry that connects those areas to other areas of the brain" which "can cause impulsivity, emotional lability, hyperirritability, and aggressive outbursts, particularly during times of stress." [49]
Mr Risi saw Dr Henson, consultant psychiatrist, in 2016 who acknowledged his Acquired Brain Injury Syndrome, as well as posttraumatic stress disorder from the effects of "childhood psychological traumas before the head injury and further emotional and psychological traumas during the initial 10 years of his adult life." [50]
There were also a number of attendances by Mr Risi at emergency departments of hospitals for mental health related issues. [51]
On 10 March 2020 Mr Risi presented at Royal North Shore hospital with suicidal thoughts and hyperglycaemia for not taking his insulin or Quetiapine. [52] On that morning he had attempted to break into unit 16 of the apartment complex using a screwdriver. He told a nurse that the attempted break-in was: [53] "[D]ue to his witnessing frequent domestic violence […] being meted out to the female resident (Allison) by her partner. He had known Alison for some time and had strong feelings towards her. He wanted to protect her, with the likelihood being that he would have a physical altercation with her partner."
Following his arrest on 29 March 2020 there are several mental health progress notes from custody that elucidate Mr Risi's mental state and his continued delusional beliefs about his relationship with Ms Allyson Thornton.
On 2 December 2020 he told Justice Health staff that "he had made an agreement with his girlfriend that if he took the blame she would marry him". [54] On 30 December he told Justice Health staff that "he really wants to speak with his girlfriend but he is not allowed because she is a witness to his crime". [55] As recently as 22 February 2022 he told a medical officer that he thinks the partner of the victim of the index offence "likes him and wants to be in a relationship," [56] and further informed them that he did not believe he committed the index offence, instead presenting an account of the man lunging at him with a knife when he went to see if the woman in the apartment was alright. [57]
The Crown tendered a report by Dr Stephen Allnutt, senior consultant forensic psychiatrist, dated 18 May 2022. Senior counsel for Mr Risi tendered two reports by Dr Richard Furst, consultant forensic psychiatrist, dated 22 September 2020 and 13 June 2022. Both experts also gave oral evidence at the hearing.

[13]

Dr Allnutt

Dr Stephen Allnutt in his report dated 18 May 2022 referred to two earlier reports from 2021 when he diagnosed Mr Risi with chronic posttraumatic stress disorder with associated depression, a mild neurocognitive disorder, and a substance use disorder. [58] As Mr Risi declined an interview with Dr Allnutt, the opinion expressed in the report was limited to his original assessment and a documentary review.
Dr Allnutt referred to statements made by witnesses Katherine De Roo and Samantha Graham regarding their observations of Mr Risi in the months and days before the offence. On 2 April 2020 Mr Risi was taking Seroquel and was hearing voices saying negative things that were coming from the television and from people around him. On 6 April he was not taking medication and reported voices that told him he was better off killing himself. Dr Allnutt was of the opinion that these voices were "more consistent with negative ruminations than perceptual distortions." [59]
Dr Allnutt conceded that his opinion was limited by not having had the opportunity to explore the question of psychosis with Mr Risi in an interview. [60] Nevertheless, he formed the opinion that the experiences of hearing voices were due to psychosis: "While these symptoms could be attributed to episodic drug induced psychosis, that symptoms persisted in February 2021 in the absence of substances, I would conclude diagnosis of a chronic psychotic disorder such as schizophrenia or schizoaffective disorder aggravated by substance abuse." Dr Allnutt also formed the view that Mr Risi had an infatuation with Ms Thornton and developed a delusional belief that the deceased was abusing her. Dr Allnutt said that "it is this belief which appears to have motivated his offending behaviour". [61]
Dr Allnutt continued: [62] "Thus, at the material time of the alleged offence he was suffering a 'mental health impairment' - that is, a disturbance of thought, mood, volition, and perception, that was significant for clinical purposes, arising from either a substance induced disorder that was not temporary or a chronic psychotic disorder. His delusional belief that the deceased was […] abusing Ms Thornton compromised his ability to reason about the wrongfulness in the matter with a moderate degree of sense and composure and therefore would have a defence of mental impairment available to him. It is likely that he maintained capacity to know the nature and consequence of his actions - he incorporated the deceased into an irrational belief system so would not have been able to apply the same reasoning process to his perceptions as a person of normal mind would."
Dr Allnutt's opinion supports a finding that Mr Risi had a mental health impairment in accordance with s 4 of the MHCIFP Act. Further, it supports a finding that that mental health impairment meant that Mr Risi did not know the act was wrong, satisfying s 28(1)(b) of the MHCIFP Act. Dr Allnutt said in his evidence that Mr Risi "was unable to reason with a moderate degree of sense and composure that the act was wrong having regard to the perception of other people as to whether it was wrong." [63]
The oral expression of Dr Allnutt's opinion went further than it did in his report with him commenting that, although he could not be certain absent the opportunity to interview Mr Risi, it seems that there was a "high degree of irrationality" in relation to his belief that Ms Thornton would want to be with him following the offending behaviour, which "likely falls into the category of an erotomanic delusional belief." [64]
Mr Risi's actions following the offence, including changing his appearance by shaving off his beard and leaving Sydney, indicated an awareness of legal wrongfulness, but did not affect Dr Allnutt's opinion that Mr Risi, informed by a delusional view that Ms Thornton needed his protection, did not perceive his actions to be morally wrong. [65]

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (3)

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