R v Tarantello

Supreme Court of NSW|2011-05-05|Before: Schmidt J, Mr P, Ms J, Davies J

Judgment 1The accused, Giuseppe Tarantello, is charged under s 19A of the Crimes Act 1900 with having murdered Frank Amore on 13 May 2009 at Haberfield. On 25 May 2010, under the provisions of the Mental Health (Forensic Provisions) Act 1990 ('the Act'), Davies J found that the accused was unfit to be tried for the offence charged (see R v Tarantello [2010] NSWSC 469). He was remanded in custody and the matter was referred to the Mental Health Review Tribunal under s 14 of the Act for determination under s 16. 2In February 2011, under s 19 of the Act, the Director of Public Prosecutions notified the Court of his intention to proceed with the charge and sought that a special hearing be fixed for that purpose. In March 2011, the Tribunal conducted a fourth review of the accused's care, treatment and detention, at a time when he was detained at the Long Bay Prison Hospital. It determined under s 46(1) of the Act that the accused should be transferred to a forensic hospital for care, treatment and control and under s 47, that the accused was not fit to be tried for the offence. The Tribunal also recommended to the Court that no further fitness inquiry be conducted in relation to the accused. 3Section 19(2) of the Act provides that the purpose of a special hearing is to ensure, despite the unfitness of the person to be tried in accordance with normal procedures, that the person is acquitted, unless it can be proved to the requisite criminal standard of proof, that on the limited evidence available, the person committed the offence charged, or any other offence available, as an alternative to the offence charged. 4In such a case, pursuant to s 21(3) of the Act, the accused is taken to have pleaded not guilty to the offence charged. The accused is entitled to raise any defence that could be properly raised, if this special hearing were an ordinary trial of criminal proceedings. 5This special hearing was conducted before me as a judge sitting alone, the accused not having made an election pursuant to s 21A of the Act to have the hearing conducted before a jury. The accused was represented by Ms Manuell SC at the hearing, who confirmed the existence of difficulties in relation to the accused giving instructions, particularly as to the cross examination of any witnesses. In accordance with the approach discussed by the Chief Justice in R v Zvonaric [2001] NSWCCA 505, however, s 21(1) of the Act required that the special hearing be conducted as 'nearly as possible as if it were a trial of a criminal proceedings'. 6The verdicts available at a special hearing are provided by s 22(1) of the Act, namely: "(a) not guilty of the offence charged, (b) not guilty on the ground of mental illness, (c) that on the limited evidence available, the accused person committed the offence charged, (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged." 7Section 38 of the Act provides that if it appears on the evidence at trial that the accused 'was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made,' then a special verdict must be returned 'that the accused person is not guilty by reason of mental illness'. 8If such a verdict is returned, under s 39 of the Act the Court may 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. Section 39 also provides that: "(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."

The facts 9By consent, three large folders of documentary material that comprised the Crown case were tendered. They included witness statements and various documentary material, including a record of a 000 call made by the accused on 13 May 2009; photographs taken that day; a record of the police interview of the accused conducted that day; and various psychiatric reports. Some witnesses were not called to give oral evidence, but oral evidence was called from two police officers who responded to the accused's 000 call and attended Mr Amore's home, where the accused was found with his body. Both the 000 recording and the recording of the accused's record of interview were played in Court. 10The facts were not in issue. The accused is now aged some 41 years. When he was aged about 30 years, he was diagnosed as suffering from paranoid schizophrenia. He received treatment for that condition, from which he continued to suffer at the time of Mr Amore's death. At that time the accused lived alone at Five Dock, in premises owned by his mother, Paola Tarantello. Mr Amore was her partner and they had lived together at their home at Haberfield for some 10 years. 11At the time of Mr Amore's death, the accused was being treated by a psychiatrist and was receiving an injection of medication for his illness every second Wednesday from his GP. He was also prescribed oral medication to be taken daily. 12On the date of the offence, Wednesday 13 May 2009, the accused's mother was due to travel to Berrima by bus on a daytrip for a pilgrimage to a holy site. The accused had stayed overnight with his mother and Mr Amore at their home. That morning the accused told his mother at about 6.15 am, that he was going to a nearby shop. He returned about 15 minutes later and asked his mother if she had to go. She told him that she was going to pray for him because he was sick. Later she had a conversation with Mr Amore, who told her 'Don't listen to him. He's a spoilt brat sometimes'. She was not sure if the accused overheard this conversation, but there was no friction between he and Mr Amore that morning. 13The bus was due to leave Haberfield at 8 am. Shortly after 7:30 am, Mr Amore and the accused drove his mother to the bus stop. Mr Amore offered to take the accused later to the Medical Centre for his injection which was due that day and suggested that they 'make some chicken soup for mum when she comes home'. 14When the police arrived at the Haberfield house at about 8.40 am, when they responded to a 000 call made by the accused at 8.32 am, they found him alone there with Mr Amore's body. The accused was covered in blood. Mr Amore's car was parked in the driveway at the side of the house. The accused's car was parked on the street at the front of the house. The keys to the accused's car were later found under Mr Amore's body. 15Between 8:15 am and 8:32 am a number of telephone calls were made on the landline at the Haberfield house and on the accused's mobile phone. Three of these calls were from the landline to 000, the third one at 8:32 am. The transcript of that phone call was in evidence, as well as a copy of the recording of the call. The accused told the 000 operator that there had been an accident; that there had been a murder inside the house; that Mr Amore had stab wounds; that he believed that he was deceased; that he was inside the house and that he was the only person there. 16The accused also made a call at 8:28 am from the landline at the Haberfield house to his brother's home, where he spoke to his brother's wife. He seemed out of breath and she asked him what was wrong. He said 'nothing', but told her that he did not know where he was. She asked him if he wanted to speak to his brother and when he said 'yes', she rang her husband. 17At 8:31 am, Mr Carrado Tarantello, the accused's brother spoke to him. He said that he was driving around. His brother noticed nothing unusual about the accused during this conversation. 18Constable Dwyer's evidence was that she and the other the police officer who attended with her, found the accused walking down the steps leading to the door of the Haberfield house. His hands and clothes appeared to be covered in blood. When questioned, the accused repeatedly said 'I don't really want to say anything'. He seemed quite calm. 19Sergeant Crematy's evidence was that when he arrived, the accused was with Constable Dwyer and another officer. He also noticed that the accused had a large amount of blood on his hands and clothing and that he had an injury to his right eye. He entered the house and found Mr Amore's body slumped against the rear wall of the house. Mr Amore had severe injuries to his head and face. He saw a pair of scissors, which appeared to be covered in blood on the kitchen bench, near a cordless phone, which was also covered in blood. The handle of the scissors was broken. The missing handle was lying on the floor. A table was lying on its side, as were chairs. One appeared to be broken and there was a pair of glasses on the floor, which also appeared to have blood on them. 20When Sergeant Crematy spoke to the accused, he refused to say anything about what had happened. The accused was then arrested. 21During the recorded interview with the police which occurred later that morning, the accused repeatedly responded to Sergeant Crematy's questions, and those asked by others, by saying that he could not remember things which had happened; that he did not want to answer questions; and that he did not want to discuss the matters raised with him. He said that he wanted to speak to his mother and brother and that he did not want to discuss how he had found Mr Amore because: "A 'Cause I, I, I'm scared if something happens to me and maybe I did something, which maybe I didn't, I'm not too sure. I don't want to be accused for something that I didn't do or maybe I wasn't in fault, or maybe I was fault, I don't know, or maybe I do know. I'm not saying. I just, all I'm saying is, is I need time to think things through and, 'cause I'm a little bit distressed." 22Forensic samples were taken from the accused as well as from Mr Amore's body. Mr Amore's death certificate, as well as an autopsy report and a neuropathology report prepared by Dr Kendall Bailey were in evidence. Dr Bailey concluded that the cause of Mr Amore's death was multiple stab wounds to the head and neck. He had multiple penetrating wounds to his head, eye, cheeks and neck, including one which penetrated his jugular, as well as wounds to his chest and abdomen and to his hands. Many of the wounds were in pairs, of varying distance apart. Some of the wounds had entered the cranial and abdominal cavities. Some of the wounds to the head and torso appeared to have been inflicted post mortem. 23A forensic report prepared by Detective Sergeant Agius was also in evidence. He had examined the clothing which the accused had worn, which had been seized from him shortly after his arrest. Detective Sergeant Agius concluded that the primary contributing source of the blood found on that clothing was Mr Amore; that before those stains were made there were no bloodstains present on the accused's clothes and that the wearer of the clothes would have been in close proximity to Mr Amore, when he was attacked, with the most likely causes of the blood being transferred to the clothes by contact with blood stained items, or a person. 24Also in evidence was a certificate of analysis under s 177 of the Evidence Act 1995 of Virginia Freedman of samples obtained from the blades of the pair of scissors, which were found to contain a mixture of DNA profiles that originated from two individuals. Upon comparison with relevant control samples, Ms Freedman concluded that it was 72 million times more likely to obtain that mixed profile, if the DNA had originated from Mr Amore and the accused, than from Mr Amore and an unknown unrelated individual. DNA profiles were also produced from samples obtained from the fingernail clippings of the right hand of the accused. Ms Freedman concluded that this DNA material was also from two male contributors. The accused could not be excluded as one of those contributors. Assuming that the accused was one of those contributors, the DNA profile of the second contributor was determined, with the result that the DNA profile of Mr Amore could not be excluded as that second contributor. The expected occurrence of the DNA profile of that second contributor occurring in the general population, is fewer than one in 10 billion individuals.

The psychiatric evidence 25Reports of the treating psychiatrist Dr Roxanas, the treating psychologist Dr Pollicina, as well as reports of the forensic psychiatrists Professor Greenberg and Dr Nielssen, who had both conducted psychiatric assessments of the accused, were in evidence. All of their reports confirmed that the accused was suffering from a serious mental illness at the time of Mr Amore's death. None of the doctors were required for cross examination. 26It is convenient to first refer to the most recent report. It was the Crown which led evidence from Professor Greenberg. In his May 2011 report, Professor Greenberg's diagnosis was that the accused suffers from a chronic schizophrenic disorder with treatment-resistant residual symptoms. He then assessed that the accused understood the nature of the charge which he faces. While the accused had told Professor Greenberg that he intended to plead not guilty by reason of mental illness, in the Professor's opinion the accused did not understand the consequences of such a plea, even though he did understand the difference between a guilty and not guilty plea. The Professor was of the view that the accused was not then able to explain the purpose of these proceedings; he would have difficulty appreciating the substantial effect of evidence; in giving instructions to his legal counsel; or in deciding what defence he should make. The accused could not give a version of the facts and if required to give evidence, could not do so. On the balance of probability, he remained unfit to stand trial. 27Professor Greenberg noted that the accused remained unable to give any account of his version of events, at the time of the alleged offence. Given his history of severe mental illness in the two to three years prior to the alleged offence, the Professor was of the view that on the balance of probabilities, the accused's mental illness played a significant and major role in his behaviour at the time, with the result that he was likely to have a defence of mental illness. 28In his March 2010 report, Professor Greenberg also noted that the accused was then unable to remember the events of 13 May 2009; whether he was then using illicit drugs or alcohol; or taking psychiatric medication. He was also unsure if he was then experiencing hallucinations or paranoid or somatic beliefs. When asked if he had murdered his stepfather, he said that his mind was blank. The accused was vague about his history since diagnosis some 15 years ago, with schizophrenia. He was uncertain as to whether he suffered from a mental illness and was unsure why he took medication. He reported no conflict with his stepfather. He did not answer most questions asked and most frequently replied 'I don't know', when he did answer. Professor Greenberg found the accused's insight into his mental illness then to be grossly impaired. 29Professor Greenberg referred to the accused's medical history, including a 2008 report to his GP, Dr West by his treating psychiatrist Dr Roxanas, in relation to his diagnosis of schizophrenia and psychotic delusions that people were following him and trying to harm him; his past substance abuse, which was not ongoing; and his pre-occupation with delusions about his mother and brother. There was a history in 2008 of delusional beliefs about his brother's influence on his life, despite psychiatric medication, as well as preoccupation with people entering his house suspiciously and moving items around his house. It was noted that in 2008 and 2009 a psychologist had noted strained relations with his brother and stepfather. Professor Greenberg's opinion was that the accused's condition had been deteriorating since 2006, with the result that he had come before the court on various criminal charges. 30Professor Greenberg also noted the treatment which the accused had received in custody, but observed that the accused's cognitive functioning remained impaired, as was his general ability to interact and communicate with people. There had to that point, in his view, been a further deterioration in the accused's chronic illness. 31In his March 2011 report, Dr Nielssen n oted that he observed the accused pacing the ward, not interacting with other patients, suffering from a tremor and involuntary movements which were the side effects of potent anti-psychotic medication which he was taking. I interpose to note from my observation of the accused in Court, he visibly continues to suffer those symptoms. 32The accused gave Dr Nielssen brief and uninformative answers to open ended questions. He knew that he had been found unfit for trial and that a plea of not guilty on the grounds of mental illness would be entered. He could not remember stabbing Mr Amore, whether he had a pair of scissors that might have been used in the attack, or whether he had any reason to kill him. The accused asked Dr Nielssen for advice in response to several questions, his expression was observed to be blunted; and his answers markedly impoverished and required prompting, to provide even basic information. 33Dr Nielssen spoke to the accused's treating doctor, who had observed some more lucid moments, but the accused's impairment was considered to be consistent with severe schizophrenia. There was no evidence that the accused was exaggerating or feigning the extent of his intellectual impairment. Dr Nielssen's diagnosis was that the accused was suffering from severe treatment resistant schizophrenia, with significant impairment in all areas of his intellectual function. 34Despite the absence of clear explanation of the relationship between the symptoms of his illness and his behaviour, Dr Nielssen was of the view that the defence of mental illness was open to the accused. He concluded: "However, despite the absence of a clear explanation of the relationship between symptoms of mental illness and his behaviour, I believe Mr Tarantello has the defence of mental illness open to him. He has a severe form of schizophrenic illness which in its more severe forms is a progressive neuro-degenerative disorder. Schizophrenia produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. Mr Tarantello's mental illness gave rise to a defect of reason that is most evident in his poverty of thought and impairment in a range of domains of intellectual function including the registration and retrieval of information and his capacity for abstract and logical thinking. Mr Tarantello also has the well-documented chronic delusional beliefs that his health had been tampered with, that people had broken into his home, that people used telepathy from the eyes to send him messages and that his actions were controlled by external forces. Those beliefs were chronic in nature and unresponsive to treatment with conventional anti-psychotic medication, and were almost certainly present at the time he attacked his stepfather. In the absence of any rational motive for the attack, I believe that on the balance or probabilities, Mr Tarantello was acting on the basis of his bizarre delusional beliefs. The severe impairment in his capacity for logical thinking arising from his illness deprived him of the ability to consider that his beliefs were delusional, or to understand that his actions in killing his stepfather in response to those beliefs was morally wrong. Unless there is significant improvement in his condition, Mr Tarantello will require indefinite treatment in a secure hospital. 35In his January 2010 report, Dr Nielssen had noted changes in the accused's treatment, since his August 2009 report. He then diagnosed chronic treatment-resistant schizophrenia. There had in his view been no improvement in the accused's condition, to the contrary Dr Nielssen was then of the view that there had been a deterioration since he had last seen the accused, which might have reflected a reduction in the effective dose of medication which the accused was receiving. The accused had declined some alterations proposed in his treatment. 36Dr Nielssen was also then of the view that the accused was unfit for trial and that his under treated mental illness would prevent him from following any proceedings in a meaningful way; understanding legal advice; or providing reliable instructions to his legal representatives. Dr Nielssen then believed that with treatment in hospital, there was a reasonable chance that the accused's mental state would improve within 12 months, so that he might then be fit for trial. I note that this hope has not materialised. 37In his August 2009 report, Dr Nielssen noted that he had twice interviewed the accused, the second time after the accused had been given legal advice as to the purpose of the interview and the need for a written report as to his condition to be prepared. Still his answers were very vague and in some places seemed evasive. He often answered 'I don't remember', but confirmed previous convictions for assault occasioning actual bodily harm in 1988; serving three and a half years for armed robbery and two convictions for indecent exposure. There was also a conviction for cultivating cannabis, but the accused was evasive in his responses about past substance abuse. He denied smoking cannabis. 38When asked about the alleged offence, the accused confirmed where the events occurred, but could not remember details. He did recall an incident four years previously, where his stepfather had hit him, but denied having held any grievance from that incident, or having any reason to dislike his stepfather. 39When referred to symptoms described in Dr Roxanas' report, the accused agreed that he believed that his stepfather had used telepathy to affect his health, and that an argument with his stepfather had followed, after he had accused him of doing so. He also agreed that he believed that other people had forced him to expose himself and that his sexual organs had been damaged, but denied believing that people were breaking into his house. When asked how he intended to plead to the charges, he said that 'I don't know what to say', but when asked if he would prefer to plead not guilty on the grounds of mental illness, he said 'possibly, ... I would prefer it'. 40Dr Nielssen noted Dr Roxanas' report of the accused's long history of non compliance with treatment and ongoing delusional beliefs. Dr Nielssen noted that the accused was made a forensic patient, because of initial refusal to take medication. He had refused food and drink because of concerns about its content and believed that other inmates planned him harm. Hallucinations and a belief that he was not mentally ill were also noted. Dr Nielssen then diagnosed chronic treatment-resistant schizophrenia, because the accused continued to experience symptoms, despite receiving adequate doses of antipsychotic medication given in reliable form of long acting injections. Dr Nielssen was of the view that his history of convictions reflected a deterioration in his mental illness, with a direct connection between his symptoms and a recent serious assault offence. 41On the balance of probabilities, Dr Nielssen was then of the view that the accused had a defence of mental illness. He did not recognise the symptoms of his illness and was unable to recognise that any action on the basis of his delusional beliefs would be directed against an innocent person and would be morally wrong. During the acute phases of his illness he was also affected by irrational anger, probably in response to his illness and he was unable to reason with any measure of composure, about the likely consequences of his actions. 42A report from Dr Roxanas of February 2009, prepared in relation to other proceedings, was also in evidence. Dr Roxanas referred to an 18 year history of delusions and hallucinations preceded by the use of LSD and cannabis. The doctor referred to complaints that the accused's life and the world appeared to be a dream and that some of his exhibitionist behaviour had been related to a phenomena of 'passivity feelings', where he was instructed by outside forces to perform those acts'. In September 2008, Dr Roxanas had seen the accused in relation to 'telepathically inflicted pain'. 43Dr Roxanas noted a long history of non-compliance with treatment, but with improvement after fortnightly injections and daily oral medication were introduced. The doctor then assessed that the accused was unlikely to improve with hospital admission, but that he did not then present as a danger to himself or others. Community treatment was assessed to be appropriate. It was noted that he had been compliant with appointments and treatment. 44In 2009 the accused had been referred to a psychologist, Dr Pollicina, for counselling. On 4 May 2009, Dr Pollicina reported that the accused had completed a course of 12 counselling sessions, but that further counselling was recommended, because of the chronic nature of the accused's condition. Dr Pollicina was of the view that a chemical imbalance was causing the accused's symptoms, which may have originally been drug induced and that the early loss of his father and his social isolation had added to his negative state. From March 2009, Dr Pollicina observed the accused's state to have been variously 'flat' or depressed. The last session took place on 1 May, with the accused then expressing a desire to continue counselling, in the long term.

The issues 45There is no question between the parties as to the issues which arise for determination. It is the Crown who must prove the elements of the murder charge brought against the accused, beyond reasonable doubt. In this case the elements of the offence charged are that:- (1) Frank Amore died. (2) His death was caused by the acts of the accused, by repeated stabbing. (3) At the time of committing those acts, the accused intended either to kill Frank Amore, or at least to cause him grievous bodily harm. 46The accused did not give evidence. He has the benefit of the presumption of innocence. His silence is not evidence against him; nor does it constitute any sort of admission by him. Nor may his silence be used to fill any gaps in the evidence tendered by the prosecution (see Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50 per Gaudron, Gummow, Kirby and Hayne JJ at [67]). Even so, in this case there was no issue between the parties as to the proof of the elements of the offence with which the accused has been charged. 47Ms Manuell, on behalf of the accused, contended that the accused had a defence of mental illness, with the result that I should return the special verdict provided by s 38 of the Act, that he is not guilty by reason of mental illness. That is, that at the time of doing the acts which caused Mr Amore's death, the accused was mentally ill, so as not to be responsible in law for his acts. 48The other issue which must thus be determined in this case is whether or not the evidence establishes that the accused has available to him the defence of mental illness. The onus of proof of that defence falls on the accused on the balance of probabilities (see Mizzi v R [1960] HCA 77; (1960) 105 CLR 659). On the evidence the Crown conceded that I would find that the defence has been established and would enter the verdict and make the orders which Ms Manuell proposed on behalf of the accused. 49Despite the concessions which the parties have each made, it is a matter for the judge hearing the charge to determine, on the evidence, that the Crown has met the onus which falls on it and that the accused has established the defence relied on, before the verdict which the parties both submit should be reached in this case, may be entered.

The offence charged is proven 50The evidence relied on by the Crown to meet the onus which falls upon it is circumstantial. There was no submission put for the accused that this evidence had not satisfied the onus which falls on the Crown. To the contrary, it was accepted that the onus had been met. 51Every man and woman is presumed to be sane and to possess a sufficient degree of reason, to be responsible for his or her crimes, until the contrary is proven. The question of mental illness arises to be considered in relation to the defence of mental illness. As observed in R v Stiles (1990) 50 A Crim R 13: "The proper approach is not circular but linear. The jury in the first place must consider whether the offence is proved. If it is not, the accused should be acquitted, not found not guilty on the ground of insanity. An accused must not lose a chance of acquittal of the offence charged by reason of being insane. In considering whether the offence has been proved, the jury must in the first place act upon the presumption that the accused was of sound mind. The question of insanity only arises if the jury, assuming the accused was of sound mind, would find the offence proved beyond reasonable doubt: see Porter (1936) 55 CLR 182 at 185[PDF] per Dixon J (as then he was) and Perkins [1983] WAR 184 at 188 per Burt CJ (a decision upon the Criminal Code (WA) but stating relevant principle)." 52My consideration of the evidence has led me to the view that I am satisfied, beyond reasonable doubt, that it was the acts of the accused in repeatedly stabbing Mr Amore that caused his death and that at the time, the accused had the requisite intention of killing or causing him grievous bodily harm. 53These findings followed inevitably from the evidence as to the nature of the very many serious wounds inflicted on Mr Amore and the circumstances of his death, in the light of how his death was made known by the accused to the authorities. 54It was the accused who made Mr Amore's death swiftly known, not very long after his mother had left him in Mr Amore's company, when they dropped her off at the bus stop. The inference from the evidence is that the accused and Mr Amore then drove together back to the house at Haberfield, where the accused's car was parked. He there stabbed Mr Amore repeatedly with a pair of scissors. 55Mr Amore's car was found parked at the Haberfield house in the driveway, when police responded to the accused's 000 call. That the accused was not out driving while Mr Amore was killed, or shortly afterwards, when he spoke to his brother, as he then told his brother, was confirmed by the 000 call which the accused made moments later from the Haberfield house. That is further confirmed by the fact that when the police arrived, the accused's car was parked outside the house in the street. The keys to the car were later found under Mr Amore's body. 56The accused rang 000 three times. Twice before he spoke to his brother, but the calls were not connected. When the accused rang 000 shortly after he spoke to his brother, he told the operator that Mr Amore had been murdered. He has never confessed that he was the murderer, having always been unable or unwilling to speak about what happened that day. He was, however, found by police, alone at the Haberfield house, as he had told the 000 operator, with Mr Amore's body, shortly after his death. 57The forensic evidence also suggests that the accused was present when Mr Amore was killed, with the result that he was covered with his blood, when he stabbed Mr Amore repeatedly. That the scissors were the weapon used to inflict the many stab wounds which caused Mr Amore's death, is apparent. That both Mr Amore and the accused's DNA were found on the scissors, which were left on the kitchen bench near a phone, also covered in blood, provides further support for that conclusion that it was the accused who used the scissors to inflict the wounds which caused Mr Amore's death. 58This conclusion is also supported by the evidence that some of the injuries which Mr Amore suffered were consistent with him having sought to defend himself from the attack. The state of the room in which Mr Amore's body was found was consistent with there having been an altercation between them, as was the injury to the accused's eye, observed when he was arrested, as well as the DNA evidence to which I have referred. 59On the evidence, I am satisfied beyond reasonable doubt that all elements of the offence charged have been proven. Accordingly, I find that Mr Amore's death was caused by the fatal stab wounds which the accused inflicted on him on 13 May 2009.

The applicable law in relation to the defence of mental illness 60The defence of mental illness relied on requires proof that at the time that the accused killed Mr Amore, he was labouring under such a defect of reason, from a disease of the mind, that he did not know the quality and nature of the physical acts which he was doing, or alternatively that if he did know, that he did not know that what he was doing was wrong (see R v M'Naghten (1843) 10 Cl & F 200 [8 ER 718]; R v Porter [1933] HCA 1; (1933) 55 CLR 182). 'Mental illness' is not defined in the Act. 61In R v Porter at p189 - 90, Dixon J of the High Court explained that the accused must prove that the disease, disorder or disturbance of the mind from which he was suffering, whether arising from some infirmity, temporary or of long standing, was of such a character that he was not able to appreciate the wrongness of what he was doing. His Honour explained what the accused must show at p189 - 90, observing: "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."

The defence is established 62In this case both the accused and the Crown submitted that the defence relied on had been established on the evidence. I accept those submissions. On the balance of probabilities, I am satisfied that the defence was made out. 63The disease of the mind from which the accused suffers has been now diagnosed as severe treatment resistant schizophrenia. Schizophrenia is a mental illness from which the accused had been suffering for many years. The accused's illness has deteriorated over time, despite the accused receiving ongoing treatment. At the time of Mr Amore's death it had become a form of chronic treatment-resistant schizophrenia. That illness has continued to deteriorate, despite the accused receiving further treatment since his arrest. 64The psychiatric evidence which I have outlined all points overwhelmingly and unanimously to the conclusion I have reached. I am satisfied that whilst the accused knew the quality and the nature of his acts, which brought about the death of Mr Amore in May 2009, that at the time he was labouring under such a defect of reason, from a disease of the mind, that he did not know that what he was doing was wrong.

Verdict 65I find the accused to be not guilty of the murder of Frank Amore on the ground of mental illness.

The consequences of orders under s 39 of the Act 66The legal and practical consequences of a finding that the accused is "not guilty on the ground of mental illness" may be shortly explained (as discussed by Hall J in Regina v Coleman [2010] NSWSC 177 at [68] - [79]. Section s 39(1) of the Act requires me to consider making 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. In practice this means that the accused will remain in custody until a decision is made to release him. Until then, he remains under the supervision of the Mental Health Review Tribunal. 67That Tribunal consists of a president and his/her deputy, who must be a lawyer, together with two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications, or experience for the task. The Tribunal must review the accused's case, as soon as practicable after an order is made by the Court for his detention in strict custody. It may then make orders as to his continued detention, care or treatment, or as to his release. 68The Tribunal may not make an order for the release of the accused, unless satisfied, amongst other things, that the safety of the patient or any member of the public will not be seriously endangered by the patient's release. The Minister for Health and the Attorney-General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused. 69Where an order for release of the accused is not made, the Tribunal's orders will result in the accused's continued detention, care and treatment, in a place and manner which it 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 the accused's continued detention, care or treatment in a hospital, prison or other place, or as to his release. 70If the Tribunal makes an order that the accused be released, that order may be made on conditions, or release may be ordered unconditionally. If any condition imposed by the Tribunal is breached by the accused, or if the mental condition of the accused deteriorates after 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. 71The 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 the accused is properly cared for. 72Other than pursuant to any such order for the accused's release in future by the Tribunal, the result of an order made by the Court under s 39 is the accused will remain in strict custody within one of the psychiatric institutions which cares for forensic patients in this State. Security conditions, as necessary, are in place while the accused is detained in a hospital, prison or other place, or if he is allowed to be temporarily absent from the place of detention. The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. 73However, as I have explained, the accused 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.

Orders 74For the reasons which I have given, I order that:

Giuseppe Tarantello, upon the charge that on 13 May 2009 at Haberfield in the State of New South Wales you did murder Frank Amore, pursuant to the provisions of s 22(1) of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness.
Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, that Giuseppe Tarantello be detained, in an appropriate correctional centre, or such facility or other place as the Mental Health Review Tribunal may determine, until released by due process of law.
Pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990 the Registrar notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders made by this Court and to provide the Tribunal with copies of the psychiatric reports in evidence in these proceedings. 75Finally, I take the opportunity of extending my deepest sympathy to all members of Mr Amore's extended family, who have all undoubtedly been deeply affected by his very tragic death. That his death was so regrettably the result of the actions of a member of his own family, a person who has had such a long and deteriorating mental condition must not go without notice. My particular sympathy is extended to Mr Amore's partner and the accused's mother, given the unquestionable grief which she must have suffered, as the cruel result of the events which I have had to deal with in these proceedings. Mr Amore's children are also greatly to be pitied for their loss and the grief that the circumstances have unquestionably caused them. I hope that what has been dealt with in these proceedings will provide them all with some small comfort in understanding what has come to pass and how it has been dealt with by our society.

Amendments 09 May 2011 - Insertion of "I have" in 64, insertion of reference in 65 and cover sheet. Amended paragraphs: Cover sheet and paragraphs 64 and 65. 18 May 2011 - 'special hearing' added to catchwords 04 November 2011 - corrected paragraph numbering Amended paragraphs: 5-75 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: 04 November 2011

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Judgment (11 paragraphs)

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Cases Cited (10)