Should a Special Verdict be Found?
114The issue to which I now turn my attention is whether that mental illness, which I am satisfied beyond a reasonable doubt existed, is sufficient to satisfy the legal tests to enable a special verdict to be found.
115Before I do so, I note that, had the proceedings been heard in a trial with a jury, there would have been an obligation on me to inform the jury of the legal and practical consequences of a special verdict. I bear all those matters in mind in considering my verdict in this case. In particular I note, and have regard to, the following matters:
(a)if my verdict is "not guilty by reason 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.
(b)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 due process of law. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes a forensic patient and falls under the supervision of the Mental Health Review Tribunal.
(c)the composition and functions of the Mental Health Review Tribunal, including its obligation to review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody, its obligation to review the patient at least once every six months, and its obligation not to release 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.
116The real issue in this trial is whether the accused has available to him the defence of mental illness. The defence is a matter for the accused to establish, not beyond reasonable doubt, but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. If the accused does establish the defence of mental illness, then a special verdict is to be returned.
117Section 38(1) of the Mental Health (Forensic Provisions) Act provides:
"38 Special verdict
(1) If, in an indictment ..., an act ... is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his ... action at the time when the act was done ..., then, if it appears to the jury before which the person is tried that the person did the act ..., but was mentally ill at the time when the person did ... the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness."
118That section, and the Act, do not provide any definition of the term "mentally ill". The meaning of that term is determined in accordance with the M'Naghten Rules: R v M'Naughten (1843) 8 ER 718 at 722:
"Every man is presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, unless the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong."
119In order to persuade the Court to return a special verdict, it is necessary for Mr Zahab to persuade me, on the balance of probabilities, that at the time he killed his father, he was suffering from a mental illness, which led to a defect of reason such that he did not appreciate 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.
120I am well satisfied that Mr Zahab knew what he was doing. He intended to kill his father by bashing him with the brick, which was wrapped in cloth. He also intended to kill him by stabbing him on a number of occasions in the chest and by attacking his father's neck in a chopping way.
121This was a brutal, vicious and unconstrained attack, which only stopped when Mr Zahab thought that his father was dead. I am persuaded beyond reasonable doubt that Mr Zahab knew the nature and quality of his acts.
122However, I am satisfied on the balance of probabilities that at the time of the killing, Mr Zahab was mentally ill. He was at that time, and had been for a significant period, suffering paranoid schizophrenia. This type of illness is a "disease of the mind". It was in an acute phase at the time of the killing, and was characterised by a number of bizarre and delusional persecutory beliefs.
123The evidence of the two expert psychiatrists who are eminently well qualified, and are highly experienced and respected in their profession, persuades me to accept the view, and I find that, Mr Zahab did not know that what he was doing was wrong. He could not make that judgment because of his mental illness.
124Paranoid schizophrenia, a mental illness recognised by the Diagnostic and Statistical Manual for Mental Disorders - 5th Edition (DSM-V), generally has features such as the presence of prominent delusions, or auditory hallucinations. The delusions are typically characterised by being either persecutory or grandiose, or perhaps both. Religiosity is often a feature of the delusions. It is atypical of paranoid schizophrenics to see disorganised speech, disorganised or catatonic behaviour or negative symptoms.
125Whilst it is always theoretically possible for an intelligent individual to attempt to feign or mimic the symptoms of paranoid schizophrenia, it is very hard to do so in a way that hoodwinks or deceives trained experts. It is particularly difficult to do so over a lengthy period of time. Here, Mr Zahab has suffered from a mental illness for over a decade. He has been consistently diagnosed with mental illness throughout that period, and by a number of different doctors.
126Here, I am persuaded that Mr Zahab is not feigning or inventing his mental illness for the purpose of avoiding the consequences of his criminal conduct. The accounts of the independent witnesses as to Mr Zahab's conduct prior to, and at the time of, the killing are consistent with and proof of, the diagnosis reached by the expert psychiatrists. As well, the very nature of the killing itself also serves as support for the conclusions of the experts.
127Because of his mental illness, Mr Zahab did not know that what he was doing was wrong. Counter-intuitively, Mr Zahab thought that what he was doing was right.
128This issue is raised by the second part of the M'Naughten Rules. It is necessary here to remind myself of the proper direction which would in substance be given to a jury on this issue. I do so by reference to legal authority.
129In R v Porter [1933] HCA 1;(1933) 55 CLR 182 at 189-190, the test was formulated by Dixon J in the course of his summing up to a jury in these terms:
"The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression 'disease, disorder or disturbance of the mind.' That does not mean ... that there must be some physical deterioration of the cells of the brain ... you are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.
Then I have used the expression 'know', 'knew that what he was doing was wrong'. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. 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.
If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged."
130The terms of this explanation of the second part of the M'Naughten test has been judicially approved: Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson [1976] VR 470 at 477 per Young CJ, Starke and NelsonJJ.
131It is appropriate that I regard what Dixon J said as a practical synthesis of the concepts involved, and have regard to it, in undertaking the task which follows.
132I have relied heavily on the expert opinions and evidence of Dr Nielssen and Dr Westmore. Both counsel for the Crown, and counsel for the accused, submitted that I should accept these opinions, and hence I should be satisfied that Mr Zahab has available to him the defence of mental illness because he did not know, in all of the circumstances, that what he was doing was wrong.
133In all of the circumstances, I consider that I should accept the expert psychiatric opinions and their evidence and, accordingly, I am satisfied on the balance of probabilities that at the time he killed father, the accused, Mr Zahab, did not know that what he was doing was wrong. Accordingly, he was mentally ill, and a defence under s 38 of the Mental Health (Forensic Provisions) Act has been established.
134The consequence of finding in the accused's favour on the defence of mental illness is that I return a verdict of not guilty on the ground of mental illness. One possible consequence of that is that the accused could be discharged, either conditionally or unconditionally, into the community. Neither the Crown, nor counsel for Mr Zahab submitted that in all of the circumstances of this case, this would be appropriate. It clearly would not be appropriate.
135What will happen in this case is that the accused will be detained in custody until he is released by due process of law. In other words, he will remain in custody and be held as a forensic patient and come under the supervision of the Mental Health Review Tribunal.
136In coming to my decision as to the appropriate verdict, I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. His case will be reviewed by the Tribunal as soon as practicable and, if further detained, his case will be reviewed at six monthly intervals. If at some stage the accused is released, it may be on conditions that if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained.