The Queen v Konidaris [2014] VSC 89

2 To both charges he has pleaded not guilty because of mental impairment pursuant to s.20(1) of the Crimes (Mental Impairment and Unfitness to be Tried Act) 1997 (The Act).

3 The prosecution and Mr Konidaris' legal advisors have agreed that the proposed evidence in the trial establishes the defence of mental impairment under s 20 of the Act. It follows that the parties have agreed between themselves that the proposed evidence establishes that at the time of the murderous acts Mr Konidaris either:

• did not know the nature and quality of his conduct; (s 20(1)(a)) or
• did not know that his conduct was wrong in that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. (s 20(1)(b))

In this case, the preponderance of psychiatric opinion argues in favour of a s 20(1)(b) conclusion.

4 In circumstances where the parties agree that the defence of mental impairment is established I am empowered to hear the evidence that relates to that issue, and if I am satisfied the defence of mental impairment is established I may direct that a verdict of not guilty because of mental impairment be recorded (s 21(4)(a) of the Act). Alternatively, if I am not satisfied that the defence is established I am obliged to direct that Mr Konidaris be tried by a jury (s 21(4)(b) of the Act).

5 This matter was originally listed before me on 22 January 2014. On that occasion reports from three psychiatrists, Drs Sullivan, Patel and Skinner, were sought to be relied upon by the parties. I determined that I wished to hear from those witnesses and the matter was adjourned until a suitable date could be arranged.

6 The sole issue before me in this application is whether or not I am satisfied that the defence of mental impairment is established.

Ross Konidaris is 25 years old. He is the eldest of three children. His father Jim was a son of the two deceased persons. Ross Konidaris was schooled to Year 11 at Sunshine Senior College. He was employed sporadically thereafter. According to his sister he regularly smoked cannabis. He sought treatment from his local doctor for migraine headaches and spoke to him about a perceived cannabis addiction. He also used cocaine and methamphetamine at the time leading up to the deaths of his grandparents.

8 In the months before December 2012 several family members described Mr Konidaris acting unusually and expressing paranoid thoughts. I shall quote selectively from the depositions:

• (Ross)..told me that he had people after him...(Depositions p. 28);

• (Ross)...told me he needed a gun because he had people after him. He told me he was after a pump action shotgun (Depositions p. 29).

These events were said to have taken place in November 2012.

• He seemed quite paranoid and was not making much sense (November 2012) (Depositions p.32).

• For about 3 months before Christmas...(he) started saying things that initially sounded true but did not make any sense. He started talking about people being after him but he never actually said who it was (Depositions p.34);

• He would whisper things to me and when I asked him to repeat it he would not say anything...(Depositions p.34);

• (On Christmas Day)...he started talking how he had problems with people being after him because he had the same name as our grandfather. He told me that our grandfather had killed someone years ago and was trying to tell me that this was why he had been killed - like a revenge thing (Depositions p.35).

• In the last few months Ross became more and more obsessive and wanting to know where I was all the time...Ross was becoming more paranoid. It seemed he was getting worse in the lead up to 22 December 2012 (Depositions pp.53/54);

• I have heard he thought there was a bomb underneath my room...(Depositions p.54);

• He would talk and tell me these things that made no sense whatsoever...(Depositions p.54);

• ...some friends had been telling me that (Ross) was sleeping in abandoned houses, which I could not understand given that he had a perfectly good room at our house; (Depositions p.62);

• After Ross left school he started to use drugs....It was mainly marijuana that he used but later it was other stuff too. I was really surprised that he went into drugs because he hated junkies. I don't know how often Ross was using marijuana (Depositions p.62);

• The first thing I noticed was that (Ross) started to become more and more paranoid. He would walk around the house at night checking windows and doors to make sure they were locked. He would also say someone was after him...in late November, early December ...Ross went into the crawl space underneath the house... This happened a few more times where he would go in under the crawl space of the house for no apparent reason...After the first crawl space incident Ross's moods started to swing (Depositions pp. 62/63);

• At around the same time all the strange behavioural things were happening Ross asked me to take him to a doctor to help him get off marijuana.

• I have noticed a change in Ross's behaviour over a couple of months prior to my parents dying....Over this period Ross wouldn't sleep much. He would say weird and silly things. There were a couple of times that I got up at night and I would see Ross walking around in the kitchen with a knife in his pants. He would go under the house looking for bombs (Depositions p.69);

• Sometime after leaving school Ross started smoking cannabis, but to my knowledge there were no other drugs involved....(A)bout four weeks before the death of my parents...I saw him do a line of cocaine (Depositions p.69).

• Lately Ross suffered from a lot of headaches (Depositions p.75);

• About 15 to 20 days before the death(s)...Ross was spending time searching the basement at the house. Every night he would go around the house looking for things. He wouldn't sleep and he would say something was wrong there. One day he told me he had found a bomb under the house. I went under the house with him and he pointed out what he said was a bomb. I looked at it and it was just a piece of coal. He thought it was a bomb. I broke it in half in front of him to show that it wasn't a bomb...he showed me some cans in the basement and he said someone had been down there. He said the person who put the cans there must be the same person that put the bomb there. It just didn't make sense to me (Depositions p.75).

9 The immediate events leading up to the deaths are well summarised in a document entitled "Crown Opening on Consent Mental Impairment Plea" which became Exhibit 1. I have borrowed heavily from it. In the early morning of Friday 21 December, the accused broke into his grandparents' house at 6 Morven Street, Yarraville. His grandfather investigated. The accused possessed a gun. His grandfather later told a cousin, Violet Arvantidis, that he thought something was wrong with Ross. Nevertheless he provided Ross with food and a bed for the night.

10 In his later police interview, the accused indicated that he had stolen a car early that morning and driven to his grandparents intending to kill them with a small shotgun he possessed. He described to police going to his grandparents' bedroom but could not bring himself to kill them. He slept at their house after being given food by his grandfather.

11 He left his grandparents' house later that day after eating and talking with them. His father came over and picked him up. At 11.30pm on the evening of 21 December, the accused left his parents' house and went to an abandoned house where he had secreted his firearm and a jerry can of petrol. He retrieved them and then drove in his sister's car to his grandparents' house. He hid in a rear shed for several hours. Eventually he broke into the house and shot his grandfather twice in the chest. His grandmother, who had been sleeping in another room, approached screaming for her husband. The accused shot her in the chest from a range of about a metre. He then set fire to the house.

12 The accused left, stored the firearm at the abandoned house, dumped the stolen vehicle and set fire to it and then returned to his parents' house.

13 The police asked him to explain his actions a couple of days later. He said that others were coming to kill his grandfather because of his grandfather's past. He went on to say that people were after him because he shared a common name with his grandfather. He was concerned that his grandfather's house might be blown up, which would put the other neighbours in danger, so he had to act before Christmas Day.

14 He told the police that he was a heavy cannabis smoker and had consumed a couple of lines of cocaine prior to going to his grandparents' house (see Qs 256-263).

Is the defence of mental impairment established?

15 A person is presumed not to be suffering from a metal impairment within the meanings of s 20(1)(a) or (b) until the contrary is proved (see s 21(1)).

16 The accused in this case bears the burden or onus of proof. The accused must demonstrate on balance that the evidence establishes the defence of mental impairment as set out in s 20 of the Act (s 21(2)(b)) .

17 I shall turn to the psychiatric opinion in this matter. In short compass, in their reports Drs Sullivan and Patel expressed the view that Mr Konidaris has developed paranoid schizophrenia. Both considered this more likely than the differential or alternative diagnosis of substance-induced psychotic disorder. Both also were of the view that whilst it appears the accused understood the nature and quality of his conduct he could not reason as to its wrongfulness. Thus, both Drs Sullivan and Patel supported a defence of mental impairment arising under s 20(1)(b) of the Act.

18 The distinction between these doctors' primary diagnosis and the differential diagnosis is important. If the accused's true mental state was one of a drug-induced psychosis the s 20 mental impairment defence will not be available to him. I shall return to this issue later in these reasons.

19 Dr Skinner, engaged in October 2013, was asked to provide a third opinion. She agreed with Drs Sullivan and Patel that the accused was unable to reason as to the wrongfulness of his conduct. At that stage she parted company with them on its aetiology. She was unable to say whether the accused was suffering from a drug-induced psychosis or from underlying mental illness. Mr Konidaris is currently drug-free in his prison setting, is being medicated with anti-psychotic medication and shows little sign of psychotic illness.

20 The divergence of opinion on this narrow but important issue called for a closer examination of the evidence and is the reason why I requested that the witnesses attend for cross-examination as a block. I shall review their evidence on this issue. I ought add that all psychiatrists have been provided with witness statements, briefs of evidence, including either a transcript of the police interview or an audio tape of that interview. Each psychiatrist has a copy of the other psychiatric reports.

21 Dr Sullivan asked for time to re-examine the accused man. I granted this time and the accused was reassessed over an extended lunch break. In his report of May 2013, Dr Sullivan offered his opinion in these terms:

Mr Konidaris has clearly developed a psychotic illness. This appears persistent in that he continues to describe symptoms and exhibit incongruous effect as well as a poor understanding of his previous mental state consistent with the development of a more sustained psychotic process such as paranoid schizophrenia. The differential diagnosis is of a protracted methamphetamine induced psychotic disorder. Other contributing factors include cannabis use and cocaine use, neither of which are generally associated with more protracted psychotic illness, although they may be associated with the development of paranoid schizophrenia and may increase the risk of this. With methamphetamine use the picture is somewhat different, and there may be prolonged symptoms in the absence of ongoing substance use. However, as symptoms persist the likelihood diminishes that the disorder is purely substance related. My strong impression is that Mr Konidaris has developed a paranoid schizophrenia, although there are no specific diagnostic tests or phenomenological differences which can clearly differentiate between methamphetamine induced psychotic disorder and paranoid schizophrenia in the earlier stages of the illness. Its longitudinal trajectory as well as the development of more disorganised or negative symptoms will perhaps be more determinative of the diagnosis of paranoid schizophrenia. The features which appear perhaps best linked to the diagnosis of a functional psychosis such as paranoid schizophrenia include the protracted prodromal period and the presence of delusional mood.

22 In evidence, Dr Sullivan said that his diagnosis of underlying paranoid schizophrenia had been affirmed or reinforced by his further assessment of the accused man. On that assessment he noted that the accused persisted in the deluded belief that his actions were necessary in the circumstances. He also noted that the accused continued to display "negative symptoms such as loss of vitality and drive, thought impoverishment and a lack of spontaneity". Dr Sullivan was of the view that if the underlying cause of the accused's behaviour in December 2012 were drug-induced psychosis given that he has been in a drug-free environment for 16 months one would reasonably expect any residual symptoms of this psychosis to have disappeared. When asked about his confidence in his diagnosis, Dr Sullivan said that it was expressed to a level of 'reasonable medical certainty'.

23 In his report dated 29 July 2013 Dr Patel offered the following opinion:

It is my opinion that Mr Konidaris developed a mental illness in the year leading up to his offence. The mental illness that most likely explains his state of mind is that of schizophrenia, paranoid and disorganised type. The evidence of negative symptoms (affective blunting and impoverished thinking) currently leads me to believe that this is more probable than the alternative diagnosis of substance-induced psychotic disorder. The alternative hypothesis for this state of mind in the year prior to the offence and at the time of the offence was of a substance-induced psychosis given the heavy illicit substance use on a daily basis, in particular that of cannabis and cocaine. I feel that it is less likely that the overall course and clinical picture would be purely due to substance-induced state. The ongoing severe symptomatology for a period of weeks followed by incarceration, in the absence of ongoing substance misuse would tend to favour the diagnosis of a mental illness of a psychotic type rather than a purely substance-induced state. Nevertheless, substance-induced disorders of a psychotic nature, particularly in the presence of cocaine, may take some weeks to resolve. It does appear, however, that his subsequent course suggests that he has residual negative symptoms such as blunting of affect and impoverishment of speech which are likely to be due to enduring mental illness.

24 In evidence, Dr Patel confirmed this opinion, and when asked about his level of confidence in his diagnosis as compared to the level of confidence expressed by Dr Sullivan that I have just referred to, he said:

I think my level of confidence would be of a very similar nature.

...But from my experience of 28 years working with largely chronically psychotic individuals.... I would say that his presentation when I saw him was very much indicative of somebody with a chronic schizophrenic illness.

25 Dr Skinner provided a report dated 28 October 2013. At p.11 of that report she offered the following opinion.

The diagnosis of Mr Konidaris' condition presents difficulties. Presently there are no signs of psychotic illness. He is drug-free in a prison setting and is being medicated with anti-psychotic medication. Dr Sullivan has pointed out that there are no specific diagnostic tests or phenomenological differences that can easily differentiate between substance-induced psychotic disorder and paranoid schizophrenia. Psycho-stimulants can cause psychotic symptoms in individuals with a history of psychosis. Chronic stimulant abuse, particularly involving amphetamines, may produce a chronic psychosis indistinguishable from schizophrenia that persists long after the patient has stopped using stimulants. The persistence or resolution of a psychosis during abstinence may clarify the diagnosis. A period of observation with the person free from substance abuse is required to establish the diagnosis. As Mr Konidaris continues on anti-psychotic medication it is not possible to establish the diagnosis with confidence. Issues leading to a diagnostic uncertainty include his presentation on the ERISP[1] and the walk-through videos that raise some doubt as to his mental state around the time of the alleged offences. Other factors raising doubt are his hiding away from his family, visiting friends, and his initial denial of responsibility.

Dr Sullivan refers to the protracted prodromal period and the presence of delusional mood as suggesting a diagnosis of schizophrenia. In my opinion it is not clear that there was a prodromal period before the development of psychotic symptoms as Mr Konidaris was abusing substances for a long period prior to the alleged offences, and changes in his behaviour and his reported bizarre conversations might be accounted for by his drug use. I do not think that the presence of delusional mood is diagnostic of schizophrenia. (I take this to mean that the person has knowledge there is something going on around him that concerns him but does not know what it is.)

Dr Patel has referred to subtle negative symptoms, affective blunting and impoverished thinking, subtle negative symptoms such as restricted affect have been mentioned as suggesting schizophrenia but it is difficult to know whether this characteristic was present prior to the alleged offences, possibly related to personality factors or whether the apparently indifferent and rather restricted effect is related to schizophrenic illness.

I did not consider Mr Konidaris to demonstrate poverty of thinking as he is of low average intelligence and was able to give a reasonable account introducing a number of issues spontaneously.

26 Dr Skinner was at that stage unable to differentiate between an underlying schizophrenic illness and, alternatively, an underlying drug-induced psychosis.

27 Since October 2013, when Dr Skinner wrote that report, Mr Konidaris' symptoms have persisted. His delusional beliefs remain as do his 'negative symptoms'. This additional information led Dr Skinner to revise her opinion and, in fact, offer a diagnosis. Yesterday she said this:

I would still think there's some doubt that it might be a drug-induced psychosis, but accepting Dr Sullivan's examination that he's carried out today, and his saying that Mr Konidaris continues to have symptoms, and Dr Sullivan regards these as negative symptoms, then if that's the case then I would say after this length of time of abstinence then it's more likely an underlying psychotic illness such as schizophrenia.

28 I have explained the relevant operation of the Act earlier in these reasons. There is unanimity amongst the three psychiatrists that Mr Konidaris did not know that shooting his grandparents and burning their house was wrongful. Whist he knew the nature and quality of his conduct he was unable to reason with a moderate degree of sense and composure about whether that conduct, as perceived by reasonable people, was wrong.

29 Prima facie this unanimous evidence would appear to satisfy s 20(1)(b) of the Act and establish the defence of mental impairment. I have observed earlier in these reasons that there was a critical disagreement between the psychiatrists as to the underlying cause of the accused's mental state at the relevant time. As I have explained, if the underlying cause of this mental state was paranoid schizophrenia then this is a disease of the mind and thus a mental impairment within the meaning of s 20 (see R v Radford;[2] R v Falconer;[3] R v Sebalj[4]). If the underlying cause of this mental state was a drug-induced psychosis then it will not amount to a disease of the mind or a s 20 mental impairment. In Radford, King CJ said:

...I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind as that expression is not in the M'Naghten Rules.[5]

This statement was cited in Falconer, where the High Court set out the common law defence of insanity.[6] In 1997, the Act codified the common law defence of insanity in this State. Single judges of this Court have held that the Act has not altered the common law and that the term 'metal impairment' is synonymous with the term 'disease of the mind'. (See R v Sebalj; R v Martin;[7] R v R[8]). I agree with those pronouncements.

30 I have observed that all psychiatric opinion is that the applicant did not know his conduct was wrongful in the relevant sense. None say that he did not appreciate the nature and quality of his act. Thus, this is a defence that is said by the parties to have arisen under s 20(1)(b) of the Act.

31 It follows from the above, that before I can enter a verdict of not guilty under s 21(4), I must be positively satisfied of the following propositions:

(a) that the accused did not know that his conduct was wrong in that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by a reasonable person, was wrong; and

(b) that the aetiology or cause of this lack of knowledge was an underlying mental illness or disease of the mind and not a drug-induced psychosis.

Did the Accused know of the wrongfulness of his acts?

32 The answer to this question is no. All three psychiatrists agree on this. The answers given by the accused in his police interviews provide support for these opinions. I consider the accused answered the questions as responsively as he could. Those answers reveal a very disturbed mind where the reasoning behind the accused's actions seems based in paranoid fantasy. I accept the psychiatric opinion on this question. The accused clearly did not know of the wrongfulness of his acts.

What is the aetiology of the accused's beliefs?

33 I am positively satisfied that at the relevant time the accused man suffered from paranoid schizophrenia and that this condition was responsible for his mental state. There is now unanimity of psychiatric opinion as to this. I consider that this unanimous opinion sits well with the prodromal or early symptoms observed by the accused's family in the months before he shot his grandparents. I have reviewed some of these symptoms earlier in these reasons.

34 I also consider that the persistence of delusional beliefs and negative symptoms argue strongly in favour of an underlying schizophrenic illness and equally strongly against the differential diagnosis of drug-induced psychosis.

35 It follows that I am satisfied that the evidence establishes the defence of mental impairment.

36 As the prosecution and the defence agree that the proposed evidence establishes this defence, I am therefore empowered to direct that the verdicts of not guilty because of mental impairment be recorded on both charges of murder.

37 I propose to make those directions in orders that I will shortly announce.

38 Mr Konidaris will be liable to supervision under Part V of the Act, and that will also be part of the orders that I will shortly make.

39 I note that the Secretary to the Department of Justice is obliged under s 41 of the Act to arrange to have prepared and filed with the court a report on the accused's mental condition. Further, I request that the Secretary to the Department of Health arrange to have prepared and filed with the court a certificate of available services under s 47 of the Act.

1. Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 verdicts of not guilty of murder because of mental impairment be recorded in respect of both charges on Indictment C13579851.
2. There be a declaration pursuant to s 23(a) of the Act that the accused is liable to supervision under Part V of the Act.
   1. Pursuant to s 24(1)(c) of the Act the accused be remanded in custody in a prison pending the making of a supervision order under s 26 of the Act.
3. That the matter be adjourned pending the receipt by the court of a certificate of available services under s 47 of the Act and a report on the mental condition of the accused under s 41 of the Act

[1] Electronically Recorded Interview of a Suspected Person

[2] (1985) 20 A Crim R 388.

[3] [1990] HCA 49; (1990) 171 CLR 30.

[4] [2003] VSC 181.

[7] [2005] VSC 518; (2005) 159 A Crim R 314

[8] [2005] VSC 187.