R v Saba

Monday 21 August 2000 070005/00 REGINA v CHARLES SABA

1 HIS HONOUR: The accused, Charles Saba, was charged with the murder of Semaan Niam Rowda at Chippendale on 18 October 1999. Upon the presentation of the indictment before this Court, the accused pleaded not guilty and elected to be tried by judge alone. The Crown consented to the election. 2 The trial proceeded on an unusual basis in that evidence for the Crown was placed before the Court in documentary form. The schedule of Crown witnesses was tendered as Exhibit E, and it identified some eighty-four witnesses whose statements were placed before the Court. None of the witnesses was required for cross examination. A statement of facts was tendered by consent and the case is not one in which there is any real contest over the manner in which the deceased met his death, although, understandably, the many witnesses who saw something of what happened do not give accounts that altogether coincide. However, in the circumstances I do not propose to review the evidence in these remarks in close detail, although I do propose to refer to some of the evidence which impresses me as giving a reliable account as to what happened. 3 The deceased was a thirty-four year old man who conducted a tobacconist shop at 158 Broadway, Chippendale. He was shot at about 11.00 am on Monday 18 October 1999 at a time when there were many people about and it is hardly surprising that there were so many witnesses who were able to assist the police. There were people walking about in the street, there were motorists passing by, and there were people travelling in the vicinity in public transport. 4 One of the witnesses was Rosalyn Hartwell, a young tourist backpacking in Australia. This witness was sitting on the steps outside the gymnasium beside the tobacconist shop and her attention was attracted to the presence of two men standing on the kerb and obviously arguing. They separated and she saw that one of the men, who was only wearing socks on his feet, ran across Broadway to the other side of the road. The other man, who I am satisfied was the deceased, made a telephone call on his mobile phone and then the person wearing only socks on his feet, who I am satisfied was the accused, approached the tobacconist shop again, and the witness observed the accused to outstretch his hand fully, pointing it at the deceased. The witness then heard what sounded like a shot from a cap gun. The man with the phone, that is the deceased, turned away and ran down towards the tobacconist shop and went inside, with the accused in pursuit. The witness heard more shots fired inside. The witness saw the accused leave the shop and walk quickly down Broadway towards Central railway station. 5 Amy Taylor was a student at UTS and was walking along Broadway when she heard a shot. She looked up towards the tobacconist shop and saw a man, who was, I am satisfied, the accused, standing in the doorway and she saw and heard two or three more shots being fired. The man then turned, that is the accused then turned, and came out of the shop, looking at his gun. He then jogged and later walked in the direction of Central railway station. 6 Tara Louise De-Haan was the girlfriend of the deceased and Ms De-Haan was working at the tobacconist shop on the day the deceased was killed. This witness had seen something of an argument between the deceased and the accused. After the men had argued in the shop they both left it and some quarrelling continued but the witness saw the accused walk away. Later still, she saw the deceased standing on the front step of the shop and saw the accused running towards it. She saw him running on the road, heading diagonally towards the shop. She then heard a gunshot and there were further shots fired when the deceased was in the shop itself. The deceased collapsed upon the witness. 7 The deceased was taken by ambulance to Royal Prince Alfred Hospital where he died shortly after admission. 8 The post mortem examination was conducted by Dr Cala. He found three gunshot entry wounds on the deceased, one being to the right upper arm, one to the left upper back and the third entered the left lower chest, passing upwards and to the right, grazing the spleen and passing into and through the heart. Put simply, the cause of death was the gunshot wound to the chest. 9 The evidence placed before the Court satisfies me beyond reasonable doubt that the accused was the person who inflicted the various gunshot wounds and who fired the fatal shot. 10 Shortly after the shooting, George Fleming, a glazier, was driving his truck in Sussex Street and whilst it was held up in traffic he saw a man running across to the side of the truck. The man opened the passenger side door and entered the truck, asking to be taken to the FBI. Mr Fleming travelled towards Pyrmont Bridge Road and just after passing the intersection of that road and Ross Street, Glebe, the passenger, who I am satisfied was the accused, left the truck. As he did so, the driver noticed he had no shoes or socks on. During the course of that short journey in the truck, the accused had remarked: "The cops are smart you know, mate. They have even got the pigeons trained to pick up my scent. I even know where they train them, mate." He shortly after requested that the driver wind up the window "'cause the pigeons are probably picking up my scent." 11 Some time after leaving the truck the accused presented himself at police headquarters in College Street with a wounded left hand. Although it probably does not matter for present purposes, the compelling inference is that the wound was self-administered. He told Constable Bennett that the gun which he was carrying he was carrying because people were trying to kill him. He said that there were people trying to kill him who were involved in drugs and he spoke about phones being tapped and people watching him on the street. Constable Bennett formed the opinion that the accused was mentally disturbed. 12 From those police headquarters the accused was taken to Sydney Hospital for treatment for the gunshot wound and whilst there he told Constable Calvi and Sergeant Leonard: "Mate, I have been on the run for three days. Have a look at the blisters on my feet… Mate, I had to do it. The guy thought I said stuff about him and that I knew things about his life. I didn't say or know anything but he was still after me, he had 100 guys after me. It was either him or me. My girlfriend was even with them. She pretended to be on my side but she was with them…" 13 There were two ERISPs conducted and the earlier of these was on 18 October 1999. The accused told the police that he had been shot in the hand and when asked how this happened, he said that he struggled with a chap who "pulled a gun off me" and that as he tried to grab it back the gun discharged into his own hand. That explanation of the accused's gunshot wound, of course, I do not accept, having regard to the evidence of the bystanders to which I have earlier referred. However, nothing turns on that. The accused did tell the police that he used the gun and shot the deceased with it a couple of times. 14 He then, in the course of the ERISP, gave a bizarre account of having been hunted for the past three days, that there were faces following him everywhere, that he was being followed and monitored by Telstra, by taxis and by a lot of people and that they even had pigeons out there following him around in the air. 15 There are many strange responses to be found in the first of the two ERISPs which were tendered before me as Exhibits C and D. 16 I am satisfied beyond reasonable doubt not only that the accused inflicted the fatal gunshot wound but that he did so with intent to kill or at the very least with intent to cause grievous bodily harm. However, the accused has raised the defence of mental illness. I direct myself that the accused bears the onus of proving that defence on the balance of probabilities. The elements of the defence of mental illness have been addressed in R v Porter (1936) 55 CLR 182 at 189-190 and in R v Soderman (1936) 55 CLR 192 at 215. Shortly stated, the accused has to prove on the balance of probabilities that he was labouring under such a defect of reasoning from a disease of the mind so as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong. 17 I have already referred to the bizarre responses that the accused gave in the first of the ERISPs and the bizarre behaviour earlier in the truck, at police headquarters and at Sydney Hospital. This pattern of odd behaviour is complemented by evidence as to the accused's movements in the days leading up to the shooting. 18 The accused went to the south coast with his girlfriend, having hired a motor car. The accused stayed with his friend in overnight accommodation on the Saturday night before the shooting but left, apparently early on the Sunday morning, not in the car which he had hired but by taxi. He paid a taxi operator over $300 to drive him to Sydney and in the course of that journey he told the driver that he had had a fight with his girlfriend and had gone down to the south coast for peace and quiet. He added that his girlfriend's ex-boyfriend was after him, her family was after him and that he was a hunted man but that they would not get him, he would get them. He also told the taxi driver that she would be reading about him in the paper, that he would be the one found dead. The taxi driver dropped her passenger at Bardwell Park about 3.45 pm on the Sunday afternoon, that is the afternoon before the shooting. 19 The police interviewed the accused's girlfriend. There was no substance in what he was telling the taxi driver but she said that the accused had told her that he was afraid and that he was being chased. 20 It is against this background that I consider the medical evidence which bears upon the defence of mental illness. 21 The accused was seen by Dr Nielssen on 3 November 1999, by which time he had been in custody for a little over two weeks. Dr Nielssen considered him on assessment to be acutely mentally ill and that there was evidence of acute disorder of thought form. The doctor's tentative diagnosis was acute schizophrenia rather than a transient drug induced psychosis. Dr Nielssen considered that the accused required treatment in a psychiatric hospital and he arranged for this to happen. 22 The accused came under the care of Dr Wong at Long Bay Hospital. Dr Wong considered that the accused had thought disorder, he refused to cooperate in interviews and he denied all possibility of mental illness. Dr Wong considered that the accused was without any insight whatsoever. Dr Wong treated the accused as a forensic patient as soon as practicable and he prescribed medication to which the accused responded favourably. On 24 February 2000 Dr Wong reported that his opinion was that the accused had had an acute psychotic episode either drug induced or schizophreniform. 23 Dr Roberts, psychiatrist, assessed the accused on 21 November 1999 at the Long Bay Gaol Psychiatric Hospital. He regarded him then as responding to questions in a bizarre way and the doctor had an overall impression of abnormality of mind. Dr Roberts prepared a very extensive report which I have considered. A feature of the interview which the doctor had with the accused was that the accused was suspicious of him and made repeated references to the telephone being bugged. He said that the prosecutor was everywhere and that he was concerned about the conversation he was having with Dr Roberts being overheard. To say the least of it, his manner was very suspicious. Dr Roberts said that the accused displayed "a symptom cluster consistent with a disturbed state of mind which would be classifiable as a psychosis, namely a mental disorder characterised by disintegration of the personality and its break with reality." 24 Dr Roberts commented in some detail about responses that were given in the course of the ERISP interview to which I referred earlier and in the doctor's opinion the content of the ERISP was consistent "with a severely disturbed, thought disordered mind in which paranoid ideation, delusional beliefs and hallucinatory phenomena are prominent." Dr Roberts considered that the ERISP was "supportive of the diagnosis of a severely disabled young man with thought disorder and psychosis." Dr Roberts considered, but rejected, the possibility that the accused was malingering. 25 Dr Westmore assessed the accused on 15 December 1999. He also provided a very extensive report. Once again, I do not need to record the content extensively but it appears from the doctor's report that the doctor formed the opinion that the accused was suffering from a paranoid illness. He considered that the differential diagnosis would include a paranoid schizophrenic illness or a drug induced condition. Time alone would tell whether it was a drug induced paranoid condition after he had been drug free for some time. It was the opinion of Dr Westmore that the mental illness from which the accused was suffering would have totally deprived the accused of his capacity to know that he ought not do what he did at the time the killing occurred. 26 Mr Taylor, the psychologist, was also qualified in this case. He assessed the accused on 2 December 1999 and considered him to be suffering from a delusional disorder of the paranoid type and, according to the accused's history, the accused believed he was being hunted so that at the time of the killing the accused perceived that it was necessary to do what he did to protect his own life. 27 Dr Nielssen assessed the accused again on 11 July 2000. By this time the accused had, in the doctor's opinion, settled well under treatment. Nevertheless, Dr Nielssen maintained the diagnosis that the accused was suffering from a psychotic illness currently in remission. Dr Nielssen considered that there was no chance that the accused had simulated mental illness and confirmed that he had observed objective signs of acute psychosis on the occasion of his assessment in November 1999. Dr Nielssen had this to say in his more recent report: "Regardless of the final diagnosis, at the time of the offence he was affected by an acute psychotic illness that is recognised in law as a disease of the mind. The illness produced a defect of reason, the delusion that he was being pursued by a Lebanese criminal syndicate, of which the victim was a member. Mr Saba reported the feeling that his movements were somehow controlled by an external force, which he felt took him to the shop of the victim he had otherwise planned to avoid. At the time of the offence he believed that the victim planned to take him towards some associates who he believed would kill him. Because he believed the victim wanted to kill him, it is likely that at the time of the offence Mr Saba was not able to recognise that his offences were morally wrong. Moreover, in the acutely aroused state produced by his beliefs and the disturbance of logical thinking produced by an acute psychotic illness, he was unable to reason with any degree of calmness about the wrongfulness of his actions." 28 Mr Boulten, who has appeared for the accused, has submitted that on the evidence mental illness has been proved and the Crown has not sought to argue to the contrary. 29 There is no disagreement between the psychiatrists who have had occasion to assess the accused. It is common ground between Dr Nielssen, Dr Westmore, Dr Roberts and Dr Wong that the accused has been suffering from a mental illness. I would add that Dr Allnutt, who has given evidence on another matter which I must address, has come to the same conclusion. I have also referred to Mr Taylor's opinion. The evidence placed before the Court does satisfy me on the balance of probabilities that at the time that the accused shot the deceased he was suffering from a mental illness. He was, indeed, suffering from an acute psychotic illness, the condition being a paranoid one. Whether the condition was a paranoid schizophrenic illness or a drug induced condition will only become apparent with the passage of time, and in this regard I accept what Dr Westmore had to say. 30 I am satisfied that the illness prevented the accused from knowing that what he was doing was wrong when he fired the shots. In making this finding I do so, of course, accepting the uncontradicted medical evidence to that effect. That evidence satisfies me on the balance of probabilities that the accused did not know that to shoot the deceased was a wrong act in the sense that an ordinary reasonable man understands right and wrong. 31 In summary then, I am satisfied beyond reasonable doubt that the accused caused the death of the deceased in the manner I have described and that those elements necessary to constitute the crime of murder have been proved, but that the accused has proved on the balance of probabilities the defence of mental illness. I am therefore satisfied that it is appropriate that a special verdict be recorded pursuant to s 38 of the Mental Health (Criminal Procedure) Act, namely that the accused is not guilty of murder by reason of mental illness. 32 Of course, it does not follow from this that the accused goes free. Following the making of an order under s 39 of the Mental Health (Criminal Procedure) Act which my verdict enlivens, the accused will come under the supervision and control of the Mental Health Review Tribunal. He can never be released until the Mental Health Review Tribunal is satisfied on the evidence available to it that the safety of the accused and the safety of any member of the public would not be seriously endangered: see the judgment of Levine J in Stephens [1999] NSWSC 811. 33 Section 39 of the Mental Health (Criminal Procedure) Act, which I must now address, provides as follows: "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 must 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." 34 This being a trial by judge alone, the reference to the jury is inapplicable but otherwise the section does apply and governs the task which I now have to address. I am required to make an order that the accused be detained "in such place and in such manner as the Court thinks fit until released by due process of law." 35 Mr Boulten has called evidence from Dr Allnutt and Dr Perica. 36 Dr Allnutt is the medical superintendent of the hospital centre at Long Bay penitentiary. His qualifications are recorded in the curriculum vitae tendered as part of Exhibit 1, Exhibit 1 being the doctor's report concerning the accused. Dr Allnutt, who is well qualified as a psychiatrist, has been in control of the care of the accused since 22 March 2000. 37 The accused is presently in A ward at the hospital centre at Long Bay. This is a maximum security environment. It is Dr Allnutt's opinion that the accused could be appropriately detained at the Bunya Unit at Cumberland Hospital, which he understands to be a medium security centre, not staffed by Corrective Services' personnel but by mental health staff. This is a unit to which, in Dr Allnutt's understanding, it is appropriate to transfer patients who are well enough to be discharged from the maximum security environment, and the doctor considers that the accused is well enough to be transferred to that environment at the present time, although he would have in mind discussing the transfer with Dr Giuffrida, who apparently is in charge of that unit. 38 Dr Allnutt has not himself seen the Bunya unit and for this reason Mr Boulten also called Dr Perica, who is a staff specialist employed by Corrective Services who has spent some time working at Bunya. He had eight months there until about twelve months ago. He described Bunya as being a new unit built to contain forensic patients in a medium security environment. He described the security arrangements. There is a high fence surrounding. To enter there is a need to pass through a series of four locked doors. The unit is staffed by mental health nursing staff and there is a security camera system. Dr Perica said that there is a high ratio of nursing staff to patients and there are security people employed there, and there is a system of alarms. 39 Mr Boulten has submitted that I should, having regard to the evidence of those two doctors, Dr Allnutt and Dr Perica, order that the accused be detained at the Bunya unit. I have given that submission anxious consideration but I do not consider that that is the order that I should make. That is not to say that I reject the evidence that Dr Allnutt and Dr Perica have given but there are many considerations that I have to weigh in deciding the appropriate order to make. 40 Section 39 contemplates that I am to make an order that affects the immediate placement of the accused. There is no position available at Bunya unit for the accused at the present time. There is simply not a bed there. Dr Allnutt considers that placement may be possible within the next three weeks or so, but, of course, whether the accused ought to be placed there in the mind of Dr Allnutt would be influenced by the assessment which Dr Giuffrida would have to make as well. In other words, as I understand Dr Allnutt's evidence, a decision to place the accused at Bunya would depend not only upon a bed becoming available but also upon the outcome of a joint consultation between Dr Allnutt and Dr Giuffrida involving the accused. 41 There is this further consideration which I cannot ignore. I have found that the accused caused the death of the deceased by shooting in the not distant past. There is yet uncertainty concerning the precise nature of the illness from which the accused was suffering at the time he fired the shots. I have referred to that uncertainty when reviewing the psychiatric evidence. The condition may have been drug induced, it may not have been. It is too early yet to say. It seems to me that it would not be appropriate for this Court at this time to make an order removing the accused from a maximum security environment into a medium security environment such as would be available at Bunya. 42 Once this Court has made an order pursuant to s 39, the machinery under the mental health legislation places the accused under the supervision of the Mental Health Review Tribunal and that tribunal, constituted as it is by a number of people from various disciplines, but which include a person who has qualifications as a psychiatrist, has the immediate responsibility of making its assessment of the accused by way of review and has the responsibility of making recommendations to the Minister for Health. 43 That tribunal will have the responsibility of reviewing at regular intervals of no more than six months the accused's case and it may well be that on the occasion of the first review the tribunal would regard it as appropriate to move the accused from his present environment; but, as the judge who has conducted this trial, I am not persuaded that it is appropriate for the Court to make an order which immediately takes the accused from his present environment. It seems to me that the case is one which warrants a degree of caution, and it is caution that the Court is going to exercise at the present time. 44 Accordingly, the order that I make pursuant to s 39 of the Mental Health (Criminal Procedure) Act is that the accused be detained in the maximum security environment in Ward A, Long Bay Prison Hospital until released by due process of law. **********

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