REGINA v. TERAGUCHI [2002] NSWSC 529

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

JUDGMENT 1 HIS HONOUR: The accused, Mariya Teraguchi, appears before me on a special hearing directed by the Attorney General under s.19 of the Mental Health (Criminal Procedure) Act 1990 (the Act), s.19. That hearing is to be conducted as required by s.21 of that Act. 2 By virtue of s.21(3)(a), the accused is to be taken to have entered a plea of not guilty in respect of the offence charged. That offence charged is that she did on 24 June 2001 at Yagoona murder Ryoko Teraguchi. Upon the indictment being read to her she informed me that she did not murder Ryoko Teraguchi but did kill an imposter. 3 She has earlier been brought before Justice Barr in this court, the question of her fitness for trial having been raised and he determined, after a hearing conducted in accordance with the Act, that she was unfit for trial. It was in consequence of that determination that the Mental Health Review Tribunal assessed her fitness for trial, but determined that she would not be fit for trial within 12 months. 4 It was in consequence of that determination that the Attorney General gave the direction to which I have referred which has caused this special hearing to be brought before me. 5 The relevant requirements of s.21A of the Act and s.16 of the Criminal Procedure Act 1986 were met in that an appropriate election by the accused on the advice of her lawyer and consented to by the Director for Public Prosecutions for trial by judge alone on the issues arising on the special hearing was made and filed. 6 I am required therefore on this hearing to conduct the hearing without a jury and to do so in accordance with s.21, and reach a verdict as prescribed by s.21B and s.22 of the Act. In particular, I am to have regard to s.25 of that Act since on the material with which I have been provided in evidence by the Crown, the defence of mental illness has been raised. 7 It will be necessary also for me to comply with s.17 of the Criminal Procedure Act 1986. These requirements have been examined by the Court of Criminal Appeal in the decision in Regina v. Zvonaric [2001] NSWCCA 505. 8 I am obliged by law to set out the legal and practical consequence of the findings which are open on this special hearing. 9 If by reason of mental illness the appropriate course is there be a special verdict under s.25 then I am required to apply the particular provisions of the Act specifically as I would in the event that the defence of mental illness as provided for by s.38 is made out. 10 Section 37 of the Act requires me to refer to the fact that the Mental Health Review Tribunal is constituted under the Mental Health Act 1990, and has the functions under that Act with respect to forensic patients which included the function of making recommendation for a person detained in accordance with s.39 only if the Tribunal is satisfied on the evidence available to it that the safety of the person or any member of the public will not be seriously endangered by the person's release. 11 It is somewhat doubtful having regard to the matters which must be attended to prior to there being a special hearing, how appropriate it is for a judge sitting as a judge alone to explain in that judge's verdict, whether it be the verdict under the Criminal Procedure Act 1986 or that under the Act (if they should be different), what the functions and composition of the Mental Health Review Tribunal are in consequence of a person having been brought before a special hearing with mental illness being raised. 12 Nonetheless having regard to what the High Court has said in Fleming v. The Queen (1998) 158 ALR 379 and the views of the Court of Criminal Appeal in Zvonaric (supra), to which I have referred, I note that the legal and practical effect of the special verdict of mental illness is that, under the provisions of the Mental Health Act 1990, it will be necessary to order that the accused be detained in psychiatric custody in such a place and in such manner as seems fit until released by due process of law so that the accused would not return to the community except in accordance with the application of the provisions of the Mental Health Legislation. 13 The psychiatric custody would be in a place, which would be a psychiatric hospital gazetted under the Mental Health Act 1990. The accused would come under the supervision of the Mental Health Review Tribunal, which consists of a President or Deputy President who has qualifications as a barrister or solicitor and two other members one of whom may be a psychiatrist and the other of whom having suitable qualifications and experience to serve on the body. 14 That Tribunal will review the case of the accused and make recommendation to the Minister for Health. That recommendation could be either unconditional or subject to conditions. If the Tribunal was satisfied, that only if it was satisfied that the safety of the accused or any member of the public would not be seriously endangered by her release it could be considered by the Department of Health, and in due course relevant advice furnished to the Governor. The Governor might then make orders in accordance with the recommendation and advice for the detention of the accused, or of his release conditional or unconditional. 15 The Governor could only make such an order if there be a recommendation by the Tribunal. The Tribunal can at any time - any six months - review the case of the accused and make appropriate recommendation to release. Release could be unconditional or conditional in its view to be made. The Tribunal is not free to consider any recommendation for release, and is satisfied the safety of the accused or any member of the public would not be seriously endangered by any release and any such recommendation could go to the Department of Health and the Minister to advise the Governor. 16 A breach of the conditions would warrant a return to custody and the Department would maintain a watch over the case with the assistance of psychiatrists and the Community Health Centre. 17 The only way in which a person ceases to be a forensic patient for the purpose of these provisions is when unconditionally released. 18 I now turn to the evidence which was tendered to me by consent. The materials to which I had earlier referred were provided to me in a volume which became Exhibit D and which included the statement of the accused's father, he being an eye witness at the killing who gives evidence of the stabbing by the accused of the person named in the indictment in his presence. 19 There was also included the interview of the accused with police in which the accused admitted that stabbing, and that it was performed with intent to kill; that it was performed because the person the accused believed she was attacking, Mrs. Honda, had in the belief of the accused kidnapped her mother and was posing as her mother. 20 The factual material satisfies me beyond reasonable doubt that since at least 1997 the accused had been suffering from a psychotic illness attended with auditory hallucinations and delusional ideas of a persecutory nature causing on her part odd and aggressive behaviour. She had been admitted as suffering that to Banks House to the psychiatric unit at Bankstown-Lidcombe Hospital in 1997. Thereafter she had five admissions, the last being in August 1998. 21 Mr. Hill, her father, gives evidence that when first released from Banks House she manifested the belief that an imposter had taken the place of her mother. And on the 24 June 2001 when she had arrived at the home of Mr. Hill and the deceased he says he saw the dispute with her mother commence in discussions over the payment of a taxi fare, and proceeding through to the accused stabbing the deceased with a knife over and over again. 22 He attempted to telephone emergency services on a mobile phone at which time the accused was, in her view, speaking to or attempting to speak to her mother whom she believed was in Japan. When the police arrived the accused was formally cautioned. In addition to that she was advised by the attending police officer, "It's probably best for you if you say nothing at the moment". She said, "No, no I want to tell you. This woman inside, she go to Japan and she have plastic surgery to look like my Mum and then she come here, but she not my Mum that's why I stab her." 23 Again the constable advised her that she need not say anything about this, but she asked her father to come to her, and at that time was mumbling with inappropriate affect. She, in the hearing of other police referred to having killed the deceased and being glad she was dead because she was not her mother. 24 During the electronically recorded interview she told the police similar things. She said that she didn't know why she took the knife. "It might be my spirit just came out of my body and forced me to take it, I don't know." She expressed the view that she had intended to kill the imposter. And "it's just it needed to be stopped. I killed her because I want to go back to Japan. I killed her because I want to leave hospital that's why I killed her." 25 She informed the interviewing police that after she had put the knife down she rung her mother who was staying in Osaka, and informed her of the death of Mrs. Honda. 26 Tendered in evidence in documentary form were the diagnosis of Dr Ali, psychiatrist who had diagnosed the accused as suffering from a psychotic illness in 1997; and that of Dr. Fosbrooke, psychiatrist who had been involved in the treatment of the accused since 10 July 2000. Dr. Fosbrooke in particular noted that during the 11 month treatment of the accused she had never been free of the symptoms of psychosis, although the extent of manifested symptoms had fluctuated and improved with treatment. 27 There was also tendered in evidence the opinion of Dr. Brian Boettcher, consultant psychiatrist who had treated the accused after she had been remanded in custody at Bunya medium security unit of Cumberland Hospital. He noted that her condition was a particular psychosis which has been referred to as Capgras Syndrome, an unusual treatment resistant and dangerous variant of chronic paranoid schizophrenia. 28 Dr. Olav Nielssen similarly diagnosed the accused, as did Dr. Bruce Westmore. The expert medical opinion concerning the accused is thus unanimous that at the time of the acts causing death, the accused suffered from a defect of reason from disease of the mind manifesting in delusions which deprived the accused either of the capacity to know that she ought not to do the act in question, or that what she was doing was wrong. 29 The defence at law of mental illness is made out if it should appear more probable than not on the whole of the evidence in the case that at the time of the act causing death the state of mind of the accused involved such a defect of reason arising from disease of the mind. 30 Mere excitability, lack of self-control or impulsiveness are quite different things from such a defect of reason. What is required for the defence to be made out is a disorder of understanding and reasoning, or a disorder of the functioning of the mind. If the accused did not appreciate the nature and quality of the act, or if having that knowledge the accused did not know that the act was wrong in the sense that an ordinary reasonable person understands right and wrong, that is to say where such a person may be disabled from reasoning with a moderate degree of composure and sense as to the right and wrong of what he or she was doing, then the defence is made out. 31 Having regard to the matters to which I am directed by the Criminal Procedure Act 1986 and the Act, I find that it is established beyond reasonable doubt that the accused killed the deceased named in the indictment, with intent to kill. But, I am satisfied on the balance of probabilities by the uncontested evidence of the psychiatrists, which is unanimous on this issue that at the time in question the accused suffered from a mental illness so as not to be responsible in law for her actions so that it is required of me to return the special verdict under s.25 of the Act. 32 Therefore, I find the accused not guilty by reason of mental illness, and order that she be detained in the Bunya Medium Secured Unit, Cumberland Hospital, or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. **********

Last Modified: 06/20/2002 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.