Regina v Noritaka Kawasaki

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: Noritaka Kawasaki has pleaded not guilty to two charges, namely that on 3 December 2004 at Avalon he murdered Wayne Lee Nolan and that at the same time and place he maliciously wounded Mark Glover. The accused has elected to be tried by judge alone and the Crown has consented. I shall explain when I review the psychiatric evidence why I consider that the accused has the capacity to make his election. 2 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offences and that he had the requisite state of mind. The Crown and the accused have put before the Court a statement summarising the events about which they agree which led to the charges now being tried. Both sides have submitted that those facts suffice to prove the Crown case on each charge beyond reasonable doubt. In my opinion those submissions should be accepted. 3 The accused contends that he is not guilty of either charge because at the time of the events giving rise to them he was mentally ill and therefore not legally responsible for his actions. He must prove that it is more likely than not that that was so. If he does, the law provides for the Court to return a special verdict that he is not guilty by reason of mental illness. 4 The evidence shows that the accused is a single man born on 18 July 1977 and raised in Japan. In April 2004 he travelled to Australia and stayed in various places for various periods of time, principally in Queensland and on the North Coast of New South Wales. In about the middle of 2004 he moved to Avalon and began living in a hostel there. He had some experience in the use of cannabis. He had first smoked it while visiting Bali and Sri Lanka about two years earlier. He had used it occasionally in Japan. During his stay in Australia he smoked the drug in Noosa and in Byron Bay. However, he reported no ill effects from the use of the drug and appears to have experienced no mental disturbances. 5 At the Avalon hostel he met a number of Japanese tourists. He continued to smoke cannabis, about five times a day. He twice took ecstasy. He continued well, however. His appetite was good and he slept well. He had no feelings of paranoia or suspicion. 6 The other members of the hostel described him as happy but shy, perhaps because his English was not good. They said that he laughed a lot. Some described him as quiet and hard to get along with. 7 Mr Wayne Nolan had resided at the hostel for a few months and worked locally. He was an easygoing young man, never aggressive, and very popular with the other residents. He was a good guitarist. He mixed well with everybody. There was no suggestion of any disagreement or tension between him and the accused. He remarked to others how much of a good bloke the accused was. 8 Mark Glover was the night manager of the hostel. He knew all the residents, of course, including the accused. He got on well with him. 9 On the weekend before 3 December the accused went in the company of others to a dance party at Shepparton, Victoria. One of his companions bought ecstasy tablets and supplied some to him. He took them. By the final day of the concert, 28 November, he had begun to behave strangely. His companion became concerned about him and told him to stop taking the tablets. 10 Throughout these times the accused was continuing to smoke marijuana daily and was described as a heavy user. 11 After he returned from the weekend away, residents of the hostel noticed a change in the accused's demeanour. He became withdrawn and difficult to speak to. Whereas he had normally been friendly and polite, he seemed unhappy. He was seen hunched over, hugging his knees, rocking and crying. He stopped washing. He did not change his clothes. He paced up and down. He spent much of his time sitting in front of his bedroom door staring into space. He did not sleep.

12 At about midnight on Thursday 2 December 2004 the accused went to the room of another resident and watched a movie. At about 2:15am on 3 December Mr Glover spoke to the accused in the common room kitchen. The accused called out Mr Nolan's name, "Wayne", and Mr Nolan replied. The accused took a knife, which he had presumably obtained from the kitchen, and attacked Mr Nolan, overwhelming him and stabbing him in the chest and other parts of the body. When he realised what was happening, Mr Glover ran and tried to pull the accused off Mr Nolan, but it was too late. The police and the ambulance were called. Unfortunately Mr Nolan had died before the ambulance officers arrived. Mr Glover received lacerations to a forearm and a finger in the struggle. 13 The accused was arrested and taken to the police station. Investigating police officers attempted to interview the accused, but his responses were incomprehensible. Attempts to communicate with him through an interpreter produced no better result. The accused appeared not to understand what people were saying and was making strange noises. He said that he did not like the interpreter and believed that he was lying and not translating what was being said to him. He did not believe that the interpreter was a real interpreter. 14 Some hours later a further attempt was made to interview the accused, and there was some success. The accused said that he could not remember what he had been doing that evening but after prompting said that he had watched a movie, had had something to eat and that he thought that he had killed a person. Asked to explain, he said that he stabbed the man but did not know why, how or how many times. He said that he felt that he would be killed and that the person had been deceiving him. He could not explain why and said that he thought that he had "gone crazy". He said that the man he had stabbed had not been attacking him but that he stabbed him because he was trying to protect himself. He denied acting strangely over the last couple of days. He said that he had been "doing drugs" and that he had swallowed a white tablet because he did not want to sleep. He said that the tablet had come from the party at Shepparton. 15 The accused was suspected to be suffering from a mental illness and was referred to psychiatric medical staff. He was treated with anti-psychotic drugs. He made various complaints from time to time. He said that his father was an impostor. There was a voice outside his head that scared him. He could not understand what it said but thought that it might transport him to a not very nice place. His principal relevant complaint was of persecution and a belief that others wished to kill him. 16 Two psychiatrists wrote reports for the Court, Dr Allnutt, qualified by the solicitor for the accused, and Dr Nielssen, qualified by the Crown. They were substantially in agreement. Dr Allnutt was the first reporting psychiatrist to interview the accused. He saw him at Long Bay Gaol on 5 February 2005. He had the assistance of an interpreter in the Japanese language. The accused gave Dr Allnutt a summary of the events leading up to 3 December and acknowledged smoking cannabis about five times a day and, during the time shortly before 3 December, taking ecstasy tablets. He told Dr Allnutt that about two days prior to 3 December he noticed that the attitude of others around him had changed. They began to ignore him and, as he put it "discriminate against me". He said that it seemed as though people would not talk to him. That went for the hostel guests as well as the owner. He felt that the atmosphere had become very different. Consequently he felt ostracised and had no idea what was happening. He began to feel depressed. He thought he might be killed by a chainsaw. He had heard the hostel owner talking about a chainsaw. 17 He said that everybody in the hostel was talking about him. They were saying "the chainsaw" and "buzz". This meant to him that he might be killed. He felt that everybody was working together to watch him. He did not know how he was being watched when he was alone in his room but believed that it was happening nonetheless. He said that everyone in the hostel was part of a drug dealing syndicate and that they were concerned that he had discovered their secret. 18 The accused described Mr Nolan to Dr Allnutt as an acquaintance. When Dr Allnut asked him why he had stabbed him he said "but the secret was known. The reason Wayne was stabbed is if I hadn't stabbed him I would have been killed. I decided to kill him before he killed me". 19 Dr Allnutt asked the accused why he did not just leave the hostel and the accused said that that was because the drug syndicate was extensive, so that there was no way he could escape from them. He felt trapped. He felt scared. He spent the day thinking about his circumstances and wondering when he would be killed. He recalled feeling depressed. 20 He denied experiencing any messages or communication with the television. He said that he had taken ecstasy about three hours before the events in order to keep himself awake. He was too afraid, he said, to go to sleep. He thought that he would be killed while sleeping. 21 He went to the dining room to get something to eat. He was thinking that if Wayne was going to kill him he had to kill him first. He thought that if he killed Wayne he would be safe from being killed. So it came about that he attacked Mr Nolan. Of course, that was all an illusion. He was under no danger at all from Mr Nolan, who wished him no ill at all. 22 After the attack he recognised that he had stabbed someone. After speaking to some of the Japanese residents he returned to his room and tried to change his trousers because there was blood on them. He said that he wanted to hide the blood because the police had arrived. He did not want the police to know that he had stabbed someone. 23 Dr Allnutt's first concern was to assess whether the accused was fit to stand trial. By that time, of course, he had been in custody for a little over two months and had been treated with anti-psychotic drugs. Dr Allnutt formed the opinion that although the accused was suffering from a mental illness, his symptoms were not severe enough to impair his capacity to understand the functions of the Court, the lawyers and to give instructions in his defence. 24 Dr Allnutt saw the accused again on 14 September 2005. The accused told Dr Allnutt that he was doing well. He thought that the drugs he was being prescribed were helping him because they calmed him down. He said that he was feeling normal. He said that he no longer had paranoid thoughts. His speech was clear and coherent and he maintained good eye contact. He did not manifest any significant abnormal behaviour suggesting side effects of the psychiatric medicine or of neurological illness. Dr Allnutt expressed the opinion that the accused had capacity to decide between a judge alone hearing or a trial before a jury. I accept that opinion. 25 The evidence establishes beyond reasonable doubt that the accused deliberately killed Mr Nolan by stabbing him. He intended to kill him. The evidence establishes beyond reasonable doubt that he maliciously wounded Mr Glover. 26 The statement of the test for a defence of mental illness was propounded as long ago as 1843 in R v McNaghten. The question to be answered was whether the accused at the time the offence was committed was suffering from a defect of reason, from a disease of the mind, so 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 that what he was doing was wrong. The law has been amplified in Australia in the present century and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through 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. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong. 27 The opinion of Dr Allnutt was that the accused did not have overt symptoms consistent with a major psychotic disorder. However, Dr Allnutt noted the accused's history of a period of time at least a month long in which he experienced the rapid onset of persecutory delusional beliefs and auditory hallucinations. These had their onset during the period of persistent cannabis abuse, probably aggravated by ecstasy abuse. The symptoms persisted for a period of time beyond the period of effect that the drugs had upon the accused, consistent with a diagnosis of drug-induced psychosis. A differential diagnosis would include schizoaffective disorder and schizophrenia. The accused also met the criteria for a depressive disorder. 28 It is the opinion of Dr Allnutt that the accused was suffering a disease of the mind at the time of the offences and that it would be reasonable to conclude that he was at the time experiencing symptoms of psychosis. The belief that the owner of the hostel was the leader of a drug syndicate and that the hostel was the base of the syndicate was delusional. 29 The effect upon the mind of the accused was to cause a significant defect of reason in that he experienced significant impairment in his capacity to make rational interpretations of his environment and to apply environmental experiences to himself. Dr Allnutt did not believe that the accused's defect of reason was so severe that he had lost the capacity to know the nature and quality of his acts. He believed that the accused maintained the capacity to know that he had a knife in his hand and that if he struck someone with it could cause injury and even death. His opinion is, however, that the accused was significantly impaired in his capacity to know that his acts were wrong. He believed himself to be under threat and trapped. He believed that he had no choice but to act as he did. The symptoms of his mental illness impaired his capacity to consider options rationally. He erroneously believed that by attacking Mr Nolan he would in some way save his own life. This error of thinking was due to a delusional belief. He believed that his actions were justifiable, subjectively right and in self-defence. The cognitive justification behind his decision was a distortion, derived from a psychosis. 30 Dr Nielssen also thought that throughout the events the accused retained the capacity to know what he was doing. He understood that he was using a knife and that if he stabbed Mr Nolan he would injure or kill him. Like Dr Allnutt, Dr Nielssen thought the accused was suffering from a defect of reason, in the form of the delusional belief that Mr Nolan and the other residents of the hostel were planning to kill him, and that that belief arose from chronic schizophrenia, recognised in law to be a disease of the mind. He is of the opinion that the accused's delusional belief deprived him of the ability to understand that killing Mr Nolan was morally wrong. He was unable to reason with any measure of composure about his actions because of his state of fear and the impairment in his capacity for abstract thinking arising from his chronic mental illness. 31 Dr Nielssen gave oral evidence in further explanation of his opinions. His attention was drawn to the accused's heavy use of marijuana regularly for a substantial period up to the time that he attacked Mr Nolan and his more recent use of ecstasy and the apparent effect that that drug had had upon him. Asked about the sudden manifestation of the accused's symptoms, he observed that the most common time to develop a psychotic illness is in the twenties to the late twenties for men. He observed that the accused might have taken larger amounts or more potent preparations of amphetamine while in Australia, which may have triggered the psychosis. He observed also that it was known that being in an unfamiliar environment is known to induce psychotic illness. Dr Nielssen believed that it was a coincidence that the mental illness began when it did. The substance of his evidence was that the accused had developed the symptoms of psychosis which became manifest in the particular circumstances to which I have drawn attention. The consumption of the drugs might have triggered the onset of the symptoms of psychosis but that was the only relationship between the taking of the drugs and the persecutory beliefs of the accused. It was not the drugs that caused him to believe that he had a need to defend himself, and even to kill in doing so. It was his psychotic illness. Dr Nielssen was of the view that if the accused had not taken drugs he would at sometime probably have begun to manifest symptoms of psychosis. 32 The accused has now been in custody for more than a year and has been seen regularly by a psychiatrist and by psychiatric nursing staff. He is subject to a strict regimen of drugs. Drugs are administered to him in a manner which makes it difficult for him to refuse. So his condition is kept under control. But he must continue to take medicine and if he ceases to do so it may be expected that hallucinations, delusions and other manifestations of psychosis will arise. 33 I accept the opinions of Dr Allnutt and Dr Nielssen that when he killed the deceased the accused was unable because of the psychotic illness from which he was suffering to reason with a moderate degree of calmness about the options available to him. He lacked the capacity because of his illness to appreciate that his act was morally wrong. Accordingly, the accused must be found not guilty of either charge because he was not responsible according to law for his acts. 34 The events giving rise to these charges have been distressing and perplexing for the family and friends of Mr Nolan and for Mr Glover and his family and friends. The sympathy of the Court goes out to all who have been touched by these tragic events. 35 The statute which governs cases like this requires me 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. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. A strict statutory regime will then come into effect. 36 The Mental Health Review Tribunal is a body of professional experts. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused. 37 After hearing the evidence at any later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council. 38 If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again. 39 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients. 40 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered. 41 I find that the accused is not guilty of either of the charges by reason of mental illness. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. ************

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