Supreme Court New South Wales Medium Neutral Citation: R v Dalla-Betta [2024] NSWSC 819 Hearing dates: 3 July 2024 Date of orders: 3 July 2024 Decision date: 03 July 2024 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders: (1) A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely, that the act is proven but the accused is not criminally responsible. (2) That pursuant to s 33 and s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Antonio Dalla-Betta 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. (3) That the Registrar notify the Minister for Health of these orders within 7 days. (4) That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. (5) That the Registrar provide the Mental Health Review Tribunal with a copy of the judgment, orders and exhibits within 7 days. (6) That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. (7) The Court is to provide a copy of the victim impact statements of Ms Rebecca Dyke and Ms Shannyn Martinez, to the Mental Health Review Tribunal pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) within 7 days. Catchwords: CRIME – charge of murder – defence of mental health impairment – judge alone trial – parties agree defence of mental health impairment established – evidence by forensic psychiatrists – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – special verdict – orders under s 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – consequential orders – victims impact statement Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v Jackson [2021] NSWSC 1404 R v Jawid [2022] NSWSC 788 R v Sands [2021] NSWSC 1325 R v Siemek (No. 1) [2021] NSWSC 1292 Category: Principal judgment Parties: Rex (Crown) Antonio Dalla-Betta (Accused) Representation: Counsel: G. Steedman (Crown) G. Hoare (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Hammond Nguyen Turnbull (Accused) File Number(s): 2022/00170928 JUDGMENT 1. By an indictment of 22 November 2023, Antonio Dalla-Betta ("the accused"), was charged with the offence of murder of Cheryl Ann Johnson ("the deceased"). He was committed for trial on 19 October 2023. 2. On 9 February 2024, the accused was arraigned before Wilson J and entered a plea of not guilty to murder on mental illness grounds. A trial date of 1 July 2024 was set down. There was agreement between the parties in relation to a judge alone trial, and an order later made to this effect on 8 April 2024. 3. After consideration of the brief of evidence and the psychiatric evidence, the parties took a view that proposed evidence in the proceedings established the defence of mental health impairment and there is agreement in relation to this position: s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("MHCIFP Act"). 4. The order to proceed judge sitting alone and the subsequent agreement of the Crown in relation to the issue of mental health impairment renders the trial process redundant: R v Sands [2021] NSWSC 1325 at [3]-[4] ("Sands"). Nonetheless, the accused was further arraigned before the Court as presently constituted at the commencement of the hearing today. 5. Rather, in those circumstances the Court is required to make the following determinations under s 31 of the MHCIFP Act in consideration of whether it will enter a special verdict of 'act proven but not criminally responsible': 1. the accused and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and 2. the accused is represented by an Australian legal practitioner, and 3. the Court, after considering that evidence, is satisfied that the defence is so established. 1. The first two criteria under s 31 of the MHCIFP Act are satisfied in the present matter. As I have mentioned, the prosecutor and accused have agreed that the proposed evidence in the proceedings establishes a defence of mental health impairment, and the accused is represented by an Australian legal practitioner. 2. The remainder of this judgment is directed to the consideration of whether the Court is satisfied on the evidence that a defence is established for the purposes of s 31(c) and a special verdict may therefore be entered that, whilst the act is proven, the accused is not criminally responsible for the offence due to his mental health impairment and that one or other of the effects in s 28(1) has been established. 3. In this matter, the attention of the parties was directed to s 28(1)(b) of the MHCIFP Act, namely, the accused had a mental health impairment that had the effect that he did not know that the act of killing the deceased was wrong. The balance of this judgment is directed to that consideration. STATUTE AND RELEVANT PRINCIPLES 1. The term "mental health impairment" is defined in s 4 of the MHCIFP Act as follows: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 1. Section 28 of the MHCIFP Act provides for the defence of mental health impairment or cognitive impairment in the following terms: 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes— (a) an omission, and (b) a series of acts or omissions. 1. Section 31 of the MHCIFP Act states as follows: 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established. 1. A hearing under s 31 is not a trial: Sands at [4] and R v Jackson [2021] NSWSC 1404 ("Jackson") at [7]. The procedure contemplated by s 31(c) has been referred to as an evidentiary inquiry: Jackson at [7]. 2. In R v Siemek (No. 1) [2021] NSWSC 1292, Johnson J noted that the defence under s 28 has "two limbs" (at [84]), and operated as follows (at [85]-[87]): "85. The first limb is that the Accused, at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s 28(1) MHCIFP Act. 86. The second limb is that the relevant impairment had one or other of the effects referred to in s 28(1)(a) or (b). 87. The presence of each limb is to be determined on the balance of probabilities (s 28(2)) and, until the contrary is proved, it is presumed that the Accused did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s 28(1): s 28(3) MHCIFP Act." EVIDENCE 1. The Crown relied in its case upon the expert report of the forensic psychiatrist Dr Adam Martin. The Crown also adduced in evidence, without objection, an agreed bundle marked as "Exhibit 1". 2. The accused relied upon the expert reports of the forensic psychiatrist Dr Olav Nielssen dated 2 March and 1 December 2023. There was also tendered an email communication between Dr Nielssen and the instructing solicitor for Mr G. Hoare who appeared for the accused. FACTUAL BACKGROUND 1. The facts bearing upon the charge brought against the accused are uncontentious and are amply and accurately summarised in the written submissions of counsel for the Crown, Ms G. Steedman. 2. Sometime after 7.50pm on 13 June 2022, the accused stabbed his friend, Cheryl Anne Johnson in the loungeroom of his home in Prairiewood. The deceased was stabbed approximately 35 times with a knife the accused obtained from the kitchen drawer. The accused washed the blood off himself and placed the knife on the bathroom vanity. It is alleged that the accused left various notes and instructions for his brother Ivan Dalla-Betta, primarily in relation to various financial matters that he would not be able to attend to in prison. Just after 9pm the accused left his house and drove to the nearby police station at Wetherill Park. He told the officer at the front entrance that "I just stabbed Cher"; that "I killed her, you need to arrest me" and that "I'm a schizophrenic". 3. Inquiries into the relationship between the accused and the deceased confirmed it was not an intimate one. The deceased was, by all accounts, kind and supportive toward the accused, and did nothing to provoke such an attack. 4. It appeared that the accused was struggling after the death of his friend "Eddie", who was the partner of the deceased, a short time prior. The deceased continued a friendship with the accused after Eddie's death, telling some family he was "harmless". On 9 June 2022, the deceased's friend noticed that the accused had called her a few times and that the deceased told her it was "Tony" (the accused) and that "he keeps wanting me to go over for dinner". The deceased made a comment she was not going to go and did not know how to get rid of him. 5. Police attended the accused's home and located the deceased slumped partly on the lounge with multiple stab wounds. 6. The accused participated in an interview with police. He confirmed the deceased was a friend of his, and that she would often visit him. He provided an account of stabbing her. 7. The accused could not offer in the interview a reason of any sort as to why he killed the deceased. It is only speaking later with the psychiatrists that he said that he thought the deceased was poisoning him. Even that motive could not be further developed by the accused other than what he said to Dr Martin about feeling sick a few times after she cooked him a meal. Dr Martin said at [41] of his report: "There appears to have been some level of organisation and other administrative tasks, suggesting that he was able to be organised to a degree, although the number of wounds suggests a frenzied attack with no apparent warning signs, and in my view, given his history, is suggestive of a highly disturbed mental state." 1. The evidence tendered in the matter establishes beyond reasonable doubt that: 1. The accused caused the death of the deceased by his voluntary act of stabbing her. 2. The act was done with the specific intention of inflicting really serious that is, grievous bodily harm or with the intention of killing her. 1. However, the evidence also suggests the accused has suffered from paranoid schizophrenia for the past 20 years. He was prescribed an antipsychotic medication, olanzapine. He told police he was not taking his medication for several months. I will return momentarily to that psychiatric history in furtherance of my consideration of the making of a special verdict. 2. Further, Dr Nielssen and Dr Martin both opined that the accused was suffering a chronic mental impairment at the time of killing the deceased. Both concluded that the accused had the defence of mental health impairment under s 28 of the MHCIFP Act available to him, as well as the defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW). PSYCHIATRIC HISTORY 1. A chronology of the accused's psychiatric history leading up to the events of 13 June 2022 was provided in the Crown material. 2. The psychiatric history of the accused establishes that he had a pre-existing psychiatric condition, which was diagnosed following an admission to Liverpool Mental Health Unit in August 2003, being "probable paranoid schizophrenia". He was discharged on olanzapine. 3. There is evidence that over the following years, the accused continued, at times, to manifest symptoms of schizophrenia, in particular, paranoia and delusions. In April 2012, he was admitted to Liverpool Health Service following a referral from police. The accused told staff that he had been taking "olanzapine" since diagnosis but "irregularly". The medical records note that diagnosis of "chronic delusional disorder" was possible. The accused refused follow up and was later discharged. 4. In 2018, the accused moved into premises at 9 Christie Street, Prairiewood. This was initially with his father, who passed away 3 months later. His brother, Ivan, noted that "over the next four years or so Tony remained in the house and continued to be paranoid and became a recluse". 5. From his prescribing history, it appears the accused continued to fill his prescription for olanzapine but the last known occasion it was filled was 6 January 2022. 6. On 28 February 2022, the accused attended Wetherill Park Police Station and reported that his next-door neighbour was attempting to gas him. Police noted that, when reporting this, the accused looked "paranoid and restless". The accused told police his neighbour was trying to extort him of $1 million. 7. During this period, the accused's sister-in-law recalls having seen the accused a couple of times and was "very erratic and would lose focus on conversations". 8. The accused's brother, Ivan, visited the accused around 6-8 June 2022. He noted the accused seemed "quite agitated". The accused told him "I can't come and help you because I've got quite a mess on my hands". Around the same time, the accused appeared to have amended his will and took steps to wind up one of his companies. 9. The accused confessed to killing the deceased on his arrival at the Wetherill Park Police Station at or about 9.04pm on 13 June 2022. After telling police he had just stabbed and killed the deceased, when asked what happened, he responded, "I'm a schizophrenic" and said he had not been taking his medication for the past 10 weeks. 10. As mentioned, the accused was arrested for murder. He was subsequently assessed and has been receiving psychiatric treatment. 11. The accused has continued to suffer delusions and paranoia in custody. REPORTS OF PSYCHIATRISTS THE REPORT OF DR MARTIN 1. Dr Martin provided a report dated 4 August 2023. 2. Dr Martin outlined the history of mental illness and confirmed that the accused had chronic schizophrenia (or in the alternative, delusional disorder; apparently there is no net difference between such diagnoses). Dr Martin examined current documents subpoenaed from Justice Health and noted that the accused was now taking his medication, but continued to have various delusions (for example, that the owner of "The Ivy" was trying to poison him, that he was also trying to extort him, and that current inmates were threatening him and trying to extort him). 3. The accused told Dr Martin he started to believe the deceased was poisoning him. The accused described those beliefs as "total lunacy". He said he had a good recall of the events. 4. Dr Martin opined the "most likely scenario" is that the alleged offending occurred in direct association with his acute mental illness. He said the precise motive for killing the deceased was not absolutely clear, but likely to be driven by paranoia (about being poisoned). 5. Dr Martin opined that: 1. The accused has a 'mental health impairment' as defined by the MHCIFP Act, and said: "in relation to the defence of mental health impairment, in my view, it is likely the court will find that he knew the nature and quality of the act. However, on the assumption that the offending occurred in direct association with paranoid beliefs… then in my view, it can be reasonably argued that he did not know the act was wrong [that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong]. In my view it is highly likely he understood the legal wrongfulness of the alleged offending, given his actions following the offending, taking himself to the police station and making a confession, and making a comment about prison in communications with his brother, both written and oral. However, his capacity to understand the moral wrongfulness and his capacity to reason or think rationally, in my view, was very likely disturbed as a manifestation of untreated psychosis, on a background with non-adherence with medication, inadequate psychiatric follow-up and use of cannabis and alcohol. While the issue of the defence of mental impairment is an ultimate issue for the court, in my view from a clinical perspective it can be reasonably argued and is available to him." 1. The partial defence of substantial impairment by abnormality of the mind (s 23A of the Crimes Act) is available to him. The accused had a chronic mental illness of a serious nature, which would have significant impact on his capacity to think rationally and have detrimentally affected his judgement and capacity to control himself. THE REPORT OF DR NIELSSEN 1. The defence engaged Dr Nielssen to assess the accused. Dr Nielssen compiled a report dated 2 March 2023. The accused confirmed to Dr Nielssen a history of schizophrenia. He said he "made a big mistake" by stopping his medication "for about 6 months". He said "I started thinking Cheryl was poisoning me… I stabbed her and killed her". The accused said after he had killed her "I thought what have I done" and went to police. 2. The accused's brother Ivan told Dr Nielssen after his friend Eddie died "he was becoming more aggressive… I put it down to the fact his best mate died". He said he thought the deceased "was trying to poison him… but she was a grandmother with kids and was quite a nice woman". 3. Upon resuming medication once he was in custody, bail refused, he started to feel better, and the "hallucinated voices" had abated. 4. Dr Nielssen opined that: 1. The defence of full mental impairment – s 28 of the MHCIFP Act is open to the accused. He has a chronic form of psychotic illness, which during acute episodes manifests in auditory hallucinations and persecutory beliefs as well as impairment in the ability to recognise that he was mentally ill. 2. The defence of substantial impairment by abnormality of the mind – s 23A of the Crimes Act is open to the accused – he had persecutory beliefs regarding the deceased, affecting his perception of the events and his knowledge of right and wrong. The impairment in the capacity for logical thinking arising from his untreated psychotic illness is likely to have affected his ability to exercise normal self-control. 1. Following review of the report of Dr Martin and having been provided with the evidence showing the accused's handwritten instructions to his brother, Dr Nielssen has also subsequently confirmed that: 1. The accused was suffering from "a mental impairment within the meaning of s 4 of the MHCIFPA in the form of an acute exacerbation of chronic schizophrenia"; and 2. The accused was "probably aware of the physical nature and quality of his actions in stabbing Ms Johnson at the time of the offence itself… however, at that time he was deprived of the ability to recognise that his actions were wrong, or to reason with a moderate degree of sense or composure about whether the act was wrong". SUBMISSIONS OF THE PARTIES 1. The submissions of the parties were in unison. It is submitted that the expert evidence of both psychiatrists, along with the previous clinical history of the accused, established that the accused was not criminally responsible for his acts at the time of the killing of the deceased, in accordance with the test stated in s 28 of the MHCIFP Act. 2. The undisputed evidence of Dr Nielsson and Dr Martin was that the accused was suffering a mental health impairment of a kind under s 28 of the MHCIFP Act at the time of the stabbing of the deceased. 3. Whilst a defence of substantial impairment was also available to the accused, the Court should proceed, it was submitted, to first determine if the accused understood the act was wrong under s 28, and if established on the balance of probabilities, enter a special verdict under s 31. The alternative substantial impairment manslaughter does not arise once this primary question is answered: R v Jawid [2022] NSWSC 788. CONSIDERATION OF SPECIAL VERDICT 1. The accused continues to suffer delusions about people being out to get him or kill him. This is despite being on medication and the accused appearing to be stable at times. The accused presented this way in his interview with Dr Martin, something Dr Martin says is referred to as "malingered wellness". 2. Whilst the accused eventually indicated to a psychiatrist that he acted upon the thought the deceased was poisoning him, even that motive could not be further developed by the accused other than indicating to Dr Martin he felt sick a few times after the deceased cooked him a meal. 3. As Dr Martin opined, there appears to have been some level of organisation and other administrative tasks, suggesting that he was able to be organised to a degree, although the number of wounds suggests a frenzied attack with no apparent warning signs, and, in my view, given his history, is suggestive of a highly disturbed mental state. 4. Based on the evidence and psychiatric opinion, the defence, with a concurrence of the Crown, has established, on the balance of probabilities, that the accused was suffering from chronic mental illness and his paranoid delusional beliefs led him to kill the deceased, such that, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. 5. I am satisfied that a defence is established for the purposes of s 31(c) of the MHCIFP Act. In those circumstances, the Court is required to enter a special verdict of "act proven but not criminally responsible": Jackson at [8]). I make, therefore, the determination that, whilst the act is proven, the accused is not criminally responsible for the offence due to his mental health impairment and that he did not know that the act he committed was wrong, for the purposes of s 28(1)(b) of the MHCIFP Act. CONSEQUENCES OF A FINDING OF NOT CRIMINALLY RESPONSIBLE 1. The MHCIFP Act provides that the effect of a special verdict may result in the Court making one or more orders. Those orders are stated in s 33 and s 34 of the MHCIFP Act. 2. Section 33 of the MHCIFP Act provides as follows: 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders— (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. 1. Section 34 of the MHCIFP Act requires that the Court must refer the accused to the Mental Health Review Tribunal ("the MHRT") in the absence of an unconditional release order. 2. The opinion of Dr Martin at [45] is that the accused: "very clearly requires very assertive psychiatric treatment in a controlled setting, where anti-psychotic medication can be mandated, and where access to illicit substances and alcohol can be carefully controlled and monitored. He will require careful rehabilitation in a controlled setting such as a Forensic Hospital, in my view, where his extensive forensic needs can be monitored over a protracted period. He will need careful risk assessment prior to his placement in a less restrictive setting, with congoing oversight by the Mental Health Review Tribunal." 1. The Crown submitted, with the agreement of the defence, that a release order (conditional or otherwise) should not be made. In all the circumstances, I accept that submission. VICTIM IMPACT STATEMENTS 1. The Court may accept a victim impact statement following the entering of a special verdict. The Court may consider such a statement when considering the conditions to be imposed upon release (see s 30L of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). 2. In the circumstances, I will return to any matters concerning the victim impact statements after I have entered orders in relation to a special verdict and consequential orders. ORDERS 1. The Court makes the following orders: 1. A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely, that the act is proven but the accused is not criminally responsible. 2. That pursuant to s 33 and s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Antonio Dalla-Betta 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. 3. That the Registrar notify the Minister for Health of these orders within 7 days. 4. That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. 5. That the Registrar provide the Mental Health Review Tribunal with a copy of the judgment, orders and exhibits within 7 days. 6. That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. FURTHER REFERENCE TO VICTIM IMPACT STATEMENTS 1. Having entered a special verdict, the Court turned to consider the victim impact statements. The daughter of the deceased, Ms Rebecca Dyke, had her victim impact statement read to the Court. 2. Also, the niece of the deceased, Shannyn Martinez, read her victim impact statement to the Court. 3. Although the parties are in agreement as to the orders to be made by the Court, which do not involve the release of the accused, s 30N(4) of the Sentencing Procedure Act states that the Court is required to provide a copy of the victim impact statement to the MHRT. I intend to take that step. 4. The Court makes, therefore, the following additional order: 1. The Court is to provide a copy of the victim impact statements of Ms Rebecca Dyke and Ms Shannyn Martinez, to the Mental Health Review Tribunal pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) within 7 days. ********** Amendments 04 July 2024 - Paragraph [17] - changed "Johnston" to "Johnson" 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. Decision last updated: 04 July 2024