R v Waszczuk

[2012] NSWSC 1080

Supreme Court of NSW|2012-11-06|Before: Adamson J, Sperling J, Hulme J, Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-11-06

Before

Adamson J, Sperling J, Hulme J, Davies J

Catchwords

6 A Crim R 35 Hawkins v The Queen [1994] HCA 28
179 CLR 500 R v Minani [2005] NSWCCA 226

Source

Original judgment source is linked above.

Catchwords

6 A Crim R 35 Hawkins v The Queen [1994] HCA 28179 CLR 500 R v Minani [2005] NSWCCA 226

Judgment (18 paragraphs)

[1]

Background 1Martin Waszczuk (the accused) was charged with the murder of his father, Jan Waszczuk (the deceased) on 24 May 2009. 2The accused pleaded guilty to the charge and his plea was entered in the Local Court. He adhered to his plea and confirmed it on arraignment in this Court. 3When the matter came before RA Hulme J for sentence, his Honour expressed concern about the accused's fitness to plead, since there was no evidence as to why he had killed his father. On 24 March 2011, RA Hulme J was satisfied that the accused was unfit to be tried and referred him to the Mental Health Review Tribunal (the Tribunal) pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990. On 30 August 2011, the Tribunal found that the accused was fit to plead to the offence with which he was charged. The Tribunal conducted a further review on 8 December 2011 and issued its determination on 21 December 2011, again finding that the accused was fit to be tried. On 4 May 2012, Davies J found the accused unfit to be tried on the charge of murder: R v Waszczuk [2012] NSWSC 380. By determination made on 30 June 2012, the Tribunal determined that the accused, on the balance of probabilities, had not become fit to be tried, and would not, during the period of 12 months after the finding of unfitness, become fit to be tried for the offences included within the indictment in relation to which he has been found to be unfit to be tried. 4Subsequently the DPP advised the Registrar that it intended to proceed with the charge of murder against the accused and sought that the matter be listed for a special hearing. 5Section 21(2) of the Mental Health (Forensic Provisions) Act provides that an accused person must be represented by a legal practitioner unless the Court otherwise allows. The accused sought leave to appear on his own behalf at the special hearing. I acceded to the accused's application to represent himself at this special hearing on condition that an amicus curiae was present to act in the role of contradictor to the Crown on the issue of mental illness and to raise, if the amicus curiae thought appropriate, whether the accused had a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act or the partial defence of substantial impairment pursuant to s 23A of the Crimes Act 1900. The Registrar sought assistance from the Bar Association for that purpose and Mr James of Queen's Counsel undertook the role of amicus curiae and appeared throughout the hearing. 6The accused was arraigned on an indictment presented at the commencement of the special hearing before me on 5 November 2012 charging him with the murder of the deceased: s 18(1)(a) of the Crimes Act. The accused is taken, by s 21(3)(a) of the Mental Health (Forensic Provisions) Act, to have pleaded not guilty to the offence charged. 7Section 22(1) of the Mental Health (Forensic Provisions) Act provides that the following verdicts are available at a special hearing: (1)Not guilty of the offence charged. (2)Not guilty on the ground of mental illness. (3)That on the limited evidence available, the accused person committed the offence charged. (4)That on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

[2]

Evidence 8The Crown called several police officers; Dr Szentmariay, the forensic pathologist who performed a post mortem on the deceased; and Professor Greenberg, a forensic psychiatrist, who had conducted two psychiatric examinations of the accused and who had also expressed opinions in light of written material. The evidence led by the Crown in chief from Professor Greenberg was confined to statements made by the accused to Professor Greenberg in the course of a consultation on 18 August 2010 which were said to amount to admissions. 9The Crown tendered: (1)The transcript and disc of the Triple-0 call the accused made at about 3.00 am on Monday 25 May 2009; (2)The transcript and disc of an Electronically Recorded Interview with a Suspected Person (ERISP) conducted with the accused on 25 May 2009; (3)Photographs of the crime scene, a statement identifying the locations at which the photographs were taken and photographs of knives, including the knife identified by the accused as the one with which he killed the deceased; (4)A certificate of analysis of the accused's blood which revealed that Risperidone was detected; (5)A certificate of analysis of the deceased's blood which revealed that neither alcohol nor drugs was detected; (6)A certificate of analysis that established that human blood on the accused's T-shirt had the same DNA profile as that of the deceased and that this profile is expected to occur in fewer than 1 in 10 billion individuals in the general population; and (7)A diagram prepared by Dr Szentmariay, who performed the autopsy of the deceased, indicating the location of the stab wounds on the deceased's body. 10I watched the film of the ERISP and listened to the disc of the Triple-0 call in open court. 11The accused does not contend that he has a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act or that he had a substantial impairment by abnormality of mind within the meaning of s 23A of the Crimes Act such as would reduce what would otherwise be a verdict of murder to manslaughter. I was persuaded, after hearing from the Crown and Mr James, that it was not appropriate for the Crown to raise the issue of mental illness although there was material within the Crown brief which raised the issue. But for the presence of Mr James as amicus curiae, who was prepared to undertake this role, I could have, of my own motion, adduced evidence from Professor Greenberg and called other psychiatric evidence with a view to ascertaining whether these defences, or partial defences, could be established on the balance of probabilities: R v Issa (unreported, 16 October 1995, Sperling J), following R v Damic [1982] 2 NSWLR 750; 6 A Crim R 35. 12However, I invited Mr James, as amicus curiae, to lead oral evidence from Professor Greenberg, forensic psychiatrist, including evidence as to the accused's mental state at the time at which he stabbed the deceased and as to the accused's psychiatric history, diagnosis and prognosis. Mr James also tendered the following documents: (1)Four reports of Professor Greenberg, dated 24 September 2010, 13 December 2010, 6 January 2012 and 27 October 2010 together with his curriculum vitae and a letter from the accused to the DPP received on 25 November 2011 on which some of Professor Greenberg's opinions were based; (2)Three reports of Dr Westmore, forensic psychiatrist, dated 1 November 2010, 17 March 2011 and 3 January 2012; (3)A transcript of concurrent evidence given on 19 April 2012 by Professor Greenberg and Dr Westmore before Justice Davies at a fitness hearing held pursuant to s 29 of the Mental Health (Forensic Provisions) Act; and (4)A statement dated 1 July 2009 from Dr Vaughan, the accused's treating psychiatrist. 13There was no cross-examination of any of the witnesses. All the statements were tendered without objection.

[5]

The arrival of police 18Senior Constable Yvette Smith and Inspector Glynis Cameron, the first police officers on the scene, arrived at 3.19 am when the accused was still on the phone to the Triple-0 operator. They approached the front door to the house and saw that there were lights on in the front room. The screen door was shut and the timber front door was half open. Senior Constable Smith could hear a soft male voice inside the house. She knocked on the glass window beside the door with her torch and said, "It's the police". Senior Constable Smith then walked through the front door and saw the accused sitting on the far left hand side of the front room talking on the phone. The accused then hung up the phone. A number of other police arrived shortly afterwards. 19When Senior Constable Smith asked the accused to show her his hands he said, "I don't have any weapons". The accused stood up and slowly walked towards her showing his hands. At that point another officer, Detective Senior Constable Gardiner, walked behind the accused, instructed him to get down on his knees and put his hands on his head and told him that he was under arrest. Senior Constable Smith asked the accused his name. The accused said, "Martin". Senior Constable Smith then asked the accused, "Do you know what you are under arrest for?" The accused said, "Yes... Murder one." The accused was then told he did not have to say anything and that anything he said would be recorded. The accused was then handcuffed and searched. 20In the meantime, Inspector Cameron searched the house. There was a large stain on the carpet of the lounge room and what appeared to be a drag mark from the large stain which led from the lounge room to the kitchen. Inspector Cameron found the deceased lying face down on the kitchen floor. The deceased's shirt was pulled up, exposing his back on which a number of stab wounds could be seen. His body was cold. 21The accused was taken to Hornsby Police Station, where an explanation of his rights was given and he was entered in custody.

[6]

The police interview 22At 6.52 am the accused was interviewed by police. The ERISP established that the accused made various statements during the interview, including the following: (1)He had been sitting in his bedroom during the course of the previous evening (24 May 2009), "not doing much"; (2)There had not been any particular argument between him and his father prior to the events that followed. He said that they "got along alright but there was some fundamental differences I guess". He said that there was no history of altercations or problems between them and his father had never been physically abusive towards him; (3)At about 11.00 pm he left his bedroom and walked to the kitchen; (4)In the kitchen, he got a knife "from the top drawer where the knives are". It was about 20 cm long with a black handle and "like a long triangular shape" which he took into the lounge room, where the deceased was watching television; (5)The accused stabbed the deceased a number of times with the kitchen knife, first to the neck and then through the temple, "so he sort of went down". He was unable to say how many times he stabbed the deceased but said: "It was more than once"; and "it was over quickly"; (6)He did not say anything to his father at the time; (7)The deceased screamed as he stood up, but then collapsed to the lounge room floor; and (8)The deceased appeared to be dead within thirty seconds to a minute "at most". 23The accused told the police that shortly after the stabbing he considered what to do next and decided to attempt to dispose of the body and clean up the scene. To that end, the accused said that he: (1)Moved the table and an armchair out of the way and dragged the body of the deceased from the living room into the kitchen; (2)Washed the blood off the kitchen knife in the kitchen sink and replaced it in the kitchen drawer; and (3)Attempted to clean up the blood from the floor by using toilet paper but "there was too much blood everywhere so I decided to turn myself in" and "I don't really enjoy dirty work that much so ah...". 24The accused then told the police that he returned to his bedroom where he changed some of his clothes and then washed his hands, possibly in the kitchen and in the bathroom but could not be bothered having a shower. The accused also told the police that he spent the next few hours smoking cigarettes on the front porch then, some four hours later, telephoned Triple-0. 25The accused told police that he had not sustained any injuries. He denied taking any drugs or alcohol, but said that he was on the anti-psychotic medication, Risperdal, which he received on prescription from Dr Vaughan, psychiatrist, in the form of an injection every fortnight from Hornsby Hospital in compliance with a Community Treatment Order (CTO) because "the doctor thinks I have a psychotic condition". He had most recently been injected on Friday 22 May 2009. The accused said that he was diagnosed with a psychotic condition "several years ago" but was unable to remember the date. He said that he had been on medication since then. 26The accused declined to comment when police asked about his state of mind or intention at the time of stabbing the deceased; whether he had on earlier occasions entertained thoughts of killing the deceased; whether he believed what he had done was wrong; or whether he had any remorse for what he had done.

[11]

Professor David Greenberg - Admissions made by the accused 31On 18 August 2010 Professor Greenberg asked the accused why he had stabbed his father and the accused said the following: (1)"I'd rather not comment on that. I had a valid reason"; (2)He denied he felt under threat by any person or anyone at that time period; (3)When asked if he felt angry with his father at the time the accused said, "Perhaps for some extent. Nothing [pause] no heated argument or anger"; (4)He denied there was any build up of any anger, resentment or stress leading up to the alleged offence; (5)He described his relationship with his father as "distant and there was minimal discussion". He said that he did feel that his father had not treated him well as a child and he stated that his father was a fairly disciplined person but did not abuse him as a child; (6)When asked whether he intended to kill his father he answered, "kill yes that was the purpose of the exercise"; (7)He was asked whether he had any perceived gain from this act and he stated that it was not financial and his father had not threatened him with re-admission to any hospital; (8)He stated that he blamed his father for "something" and that was "part of the reason". He then ruminated about "cruising at the moment". When asked what he meant by "cruising" he said that he had now matured as a person and that "cruising" was not obsessing. When he was again asked what he meant by this he stated "the profound emotional experience"; (9)When asked again what the reason for stabbing his father was he stated that it was "a necessity". He then stated that it was "the right time for him [his father] to go." He stated it was a mercy killing to some extent but not due to cancer; and (10)When asked what thoughts he had which gave him the right to murder his father he stated that everybody has "karma". When he was then asked what he meant by that remark he stated that his actions were "consistent with karma and that everything works out a certain way". He stated that it was "logical to do it in a certain way at the time." When he was asked what he meant by this logic and the word karma he stated that it was a "causal necessity in time." He then reported "the essential essence is temporary." He also said he had come to the decision through "pragmatic considerations" when he killed his father.

[13]

The principal diagnosis: chronic paranoid schizophrenia 35Professor Greenberg opined that the accused had from some years prior to the offence and presently, a disease of the mind, namely chronic paranoid schizophrenic disorder. This was the unanimous diagnosis of all other psychiatrists who had treated or examined the accused, including Dr Vaughan, Dr Westmore, Dr Ho, Dr Battacharya and Dr Luis. 36Professor Greenberg explained that schizophrenia is a major severe psychotic mental illness which has a neurochemical basis. Those with the disorder lose touch with reality and suffer from false beliefs, known as delusions, which may be paranoid, grandiose, somatic or referential. They may also experience hallucinations of various modalities: hearing voices, seeing visions or smelling, tasting or feeling things. They lack insight in that they are unable to understand that the symptoms they are experiencing are within their minds and are not in fact real. They tend to be guarded and suspicious. This guardedness is typically used by some with the mental disorder to dissimulate, or disguise, their psychiatric pathology. 37These delusions affect the person's own cognitive or mental processes but may not affect the person's capacity to appreciate what he or she is doing. For example, persons with schizophrenia may appreciate that they are eating cereal for breakfast or that they are watching a particular programme on television. They might understand when they take a knife and thrust it into another person's body, there is substantial risk that the person will be seriously injured or killed. However the person's thought processes, including as to whether the killing is morally or legally justified, might, nonetheless, be influenced by delusions brought about by the mental illness. 38Some sufferers, including the accused, deteriorate over time. Although the disease may respond to medication, it may also be resistant to treatment. Professor Greenberg considered that, in the accused's case, the anti-psychotic medication did not seem to have a significant beneficial effect. 39Professor Greenberg also identified incoherence of thought which manifests itself in incoherent expression as "one of the core symptoms of acute schizophrenia". 40Professor Greenberg considered the statements made by the accused at the consultation on 18 August 2010, which are listed above, to be consistent with ongoing consistent chronic paranoid schizophrenia. Professor Greenberg described the accused as being guarded and suspicious and noted that it was impossible to elicit a clear symptom of delusion because the accused refused to discuss it with him. Professor Greenberg considered the accused's statements about cruising, karma and its being logical to kill his father in a certain way at a certain time manifested both incoherence of thought and lack of insight. Professor Greenberg considered that the accused was delusional although the precise delusion could not be identified. 41Professor Greenberg noted, in the course of his consultations, that the accused's affect was blunt in that he appeared to have a totally detached and unemotive mood. This corresponded with the accused's presentation in the course of the Triple-0 call and in the ERISP. Professor Greenberg considered the incongruence of mood at the time of the Triple-0 call and the ERISP to be "quite profound". 42Professor Greenberg also considered correspondence written by the accused and in particular, a letter written by the accused to the DPP, received on 25 November 2011, as evidence of incoherence of thought. He opined in a report: "... Mr Waszczuk continues to display these psychotic pseudo-intellectual and pseudo-philosophical thoughts in these writings. There are aspects of his letter which have idiosyncratic associations which are not logical and reflect that he remains psychotically thought-disordered in his thinking and beliefs." 43Of the contents of the letter to the DPP, Professor Greenberg said in oral evidence: "It sounds very intellectual but when one reads it it doesn't really make any sense."

[14]

The accused's mental state at the time he killed the deceased 44Professor Greenberg opined that the mental state of the accused at the time he stabbed and killed the deceased was substantially the same as at the time he made the Triple-0 call some hours later and the time at which he participated in the ERISP later on the following morning. He listened to the Triple-0 call and watched the ERISP. Professor Greenberg observed that the accused exhibited, in the Triple-0 call and the ERISP, the following symptoms which were consistent with chronic schizophrenia: blunted affect, including a lack of external expressions of emotion; poverty of ideas; lack of energy or initiative; and guardedness. Professor Greenberg also noted the incongruence of thought between the traumatic events that the accused was describing and the lack of any emotional expression of the impact or gravamen of those events. 45Professor Greenberg considered that the accused's refusal to be drawn on his motive for the killing was consistent with guarding and an attempt to dissimulate his psychiatric pathology. 46Professor Greenberg concluded that the accused appreciated that he had stabbed his father and killed him and that he intended his acts to have that effect. He also considered that the accused's report to the Triple-0 operator that he had murdered his father showed that he appreciated that what he had done was legally wrong. 47However, Professor Greenberg considered that the references to "karma", "necessity" and that "it was his time" in the statements made in the consultation on 18 October 2010 indicated that the accused, at the time he killed his father, did not appreciate that his conduct was morally wrong. Indeed, Professor Greenberg considered that the accused probably regarded what he had done in killing his father as the right thing to do, having regard to his particular delusional system of beliefs. 48Professor Greenberg considered that the accused's inability to understand his actions, judge their moral effect and control himself was "of the severest degree" and amounted to a "total lack of understanding". 49Accordingly, Professor Greenberg considered that at the time of the stabbing the accused was labouring under a defect of reason caused by the disease of the mind.

[17]

The relevant principles where mental illness arises 55The relevant principles where the issue of mental illness arises were articulated by the High Court in Hawkins v The Queen [1994] HCA 28; 179 CLR 500 at 510, 512-514, 517: see also R v Minani [2005] NSWCCA 226; 63 NSWLR 490 at [32], per Hunt AJA, with whom Spieglman CJ and Howie J agreed and Cvetkovic v R [2010] NSWCCA 329 at [413]-[417], per Campbell JA, with whom Simpson and Whealy JJ agreed. 56The order in which the issues should be determined in the instant case, where there is evidence of mental illness, is: (1)Has the Crown proved beyond a reasonable doubt that the accused's act of stabbing his father was a voluntary act? (2)If so, has it been established that the accused was not criminally responsible for doing that act? (3)If not, was the act done with the specific intention required? 57The defence of mental illness arises in respect of the second question. The third question arises only if the second question is answered in the negative. In other words, if the defence of mental illness has been established, it is unnecessary to make any finding of specific intent. 58As set out above, the Crown must first prove beyond reasonable doubt that the act of stabbing was a voluntary act of the accused. A voluntary act is one done in the exercise of the accused's free will and choice to do an act of that kind. 59In determining, however, whether the Crown has established voluntariness in that sense, I must leave out of consideration evidence that the accused may have suffered some mental illness at that time. In other words, I must approach the first question on the basis that the accused was mentally healthy. 60The accused was in his bedroom. He went to the kitchen and took a carving knife from the top drawer. He went into the lounge room where his father was watching television and stabbed him 24 times. I am satisfied that the Crown has proved beyond reasonable doubt that the accused's stabbing of the deceased was voluntary. 61Accordingly I must next consider the question raised by the amicus curiae: whether the accused has the defence of mental illness so as not to be responsible according to law. For this purpose I must take into consideration the whole of the evidence bearing on the accused's mental state at the time of that act. 62As referred to above, the accused has not raised this issue. However, I nonetheless must ask myself whether I am satisfied on the balance of probabilities that at the time the accused stabbed his father, he was mentally ill, so as not to be responsible according to law. If so, then the accused is entitled to a verdict of "not guilty by reason of mental illness". 63The relevant time to be considered is the time when the Crown alleges that the act constituting the offence was done: 24 May 2009. 64Before I can be satisfied that the accused was mentally ill so as not to be responsible according to law for his actions I must be satisfied that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of the physical act of stabbing his father or did not know that it was wrong. 65I must, in determining this question, have regard to the legal and practical consequences of a finding that the accused was "not guilty on the ground of mental illness". 66If my verdict is "not guilty on the ground of mental illness", I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community. 67On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by what is called "due process of law". In this event, he will remain in custody as a forensic patient under the supervision of the Tribunal until a decision is made to release him. 68Mr James adduced evidence as to these matters and also as to the composition and functions of the Tribunal from Professor Greenberg. 69The Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office. 70The Tribunal's functions include reviewing a case of a forensic patient as soon as practicable after an order is made for detention in strict custody. The Tribunal may make orders as to that person's continued detention, care or treatment. After such a review, the Tribunal must, at least once every six months, again review the case and make orders as to the forensic patient's continued detention, care or treatment in a hospital, prison or other place or as to his release. 71The Tribunal cannot make an order for the release of a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Tribunal must notify the Minister for Health and the Attorney General in advance of the release of a forensic patient and they may make submissions to the Tribunal in relation to the possible release of that person. 72Where an order for release is not made, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal. 73If release is ordered, then it may be on conditions or unconditionally. If any condition is breached, or where the mental condition of the person has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for the person's apprehension, care and detention. 74Security conditions (as necessary) are in place while a forensic patient is detained in a hospital, prison or other place or if the person is allowed to be temporarily absent from the place of detention. A person found "not guilty on the ground of mental illness" may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. 75I am satisfied, on the basis of the unanimous psychiatric evidence and in particular the evidence of Professor Greenberg, that at the time the accused stabbed his father he was suffering from chronic paranoid schizophrenia which I am satisfied is a disease of the mind. I am also satisfied, on the basis of Professor Greenberg's evidence, which I have summarised above, that, at the time he stabbed his father, the accused was labouring under a defect of reason caused by schizophrenia. The defect of reason caused the accused to believe, falsely, that he was morally justified in killing his father because it was "karma" and because it was the "right time". 76For these reasons, I am satisfied that it is more likely than not that the accused was mentally ill so as not to be responsible according to law. The appropriate verdict is one of "not guilty on the ground of mental illness". It is therefore not necessary to proceed further to address the issue of specific intent. 77I am not satisfied that the accused's safety or the safety of any other member of the community would not be seriously put at risk by his release. I do not consider it to be appropriate, having regard to the current treatment resistance of his chronic schizophrenia, and to the recent exacerbations referred to in these reasons, to order his release into the community. 78I return the following verdict: Not guilty on the ground of mental illness. 79I make the following orders: (1)Martin Jan Waszczuk is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law; (2)I direct that as soon as practicable, the Registrar may notify the Minister of Health of these orders; and (3)I direct that as soon as practicable the Registrar may notify the Mental Health Review Tribunal of my verdict and of this order, and provide the Tribunal the following documentation: (a)a copy of these reasons for the verdict and orders; (b)the transcript of the special hearing; and (c)a copy of the exhibits tendered during the special hearing.

R v Waszczuk

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