New South Wales Supreme Court CITATION : REGINA v. FIORI [2000] NSWSC 73 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70028 of 1999 HEARING DATE(S) : Wednesday 16 February 2000 JUDGMENT DATE : 16 February 2000 PARTIES : REGINA v. FIORI, Angelo Samuel JUDGMENT OF : Greg James J at 1 COUNSEL : Crown: M. Cunneen Accused: P. Zahra SOLICITORS : Crown: S.E. O'Connor Accused: T.A. Murphy CATCHWORDS : Criminal law - trial - judge only - conceded lack of mental responsibility Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health Act 1900 Mental Health (Criminal Procedure) Act 1990 Gillett [1999] NSWSC 115 CASES CITED : Gabranovic [1999] NSWSC 205 Maxwell [1999] NSWSC 281 Noyes [1999] NSWSC 397 DECISION : Not guilty by reason of mental illness IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION No. 70028 of 1999 GREG JAMES, J. WEDNESDAY 16 FEBRUARY 2000 REGINA v. ANGELO SAMUEL FIORI JUDGMENT 1 HIS HONOUR: The accused stands charged that on 10 December 1998 at Ashbury in the State of New South Wales he did murder Sarina Fiori, his mother. To that charge he has pleaded not guilty. 2 An election for trial by judge alone signed by the accused, witnessed by his counsel and signed by the Crown Prosecutor and thus accepted by the Director of Public Prosecutions, has been filed in accordance with the provisions of s.32(1) of the Criminal Procedure Act 1986. 3 There has been tendered to me, to ensure no question arises as to that election, a medical report from Dr. Mastroianni dated 10 February 2000, confirming no question arises as to the competence or fitness of the accused to stand his trial and to make his election. The learned Crown Prosecutor has confirmed that no such question arises. In the circumstances both parties have sought that the trial proceed before me as a judge only trial. 4 Prior to the trial coming on for hearing, and by consent, the parties had provided to me material which contained a copy of the proposed indictment, a chronology, a Crown case statement and reports by psychiatrists, including Dr. Westmore, Dr. Canaris and Dr. Mastroianni, together with very many statements by investigating police and witnesses as to the circumstances giving rise to the charge. 5 I had the opportunity to read the whole of that material and have done so. It was provided to me in this way as I was informed by both the Crown Prosecutor and defence counsel that no issues of fact or controversy over the facts arose in respect of this matter. It has now been admitted into evidence and confirms that what occurred on 10 December 1998 was an appalling tragedy which arose because, at that time, the accused was suffering from a psychosis, that is a serious mental illness which I am satisfied on the whole of the evidence was such that he should not be held mentally responsible for his actions. Those actions were not in any way provoked or occasioned by any inappropriate behaviour of his mother, or that of the family of friends to whom he went following these events. 6 I have been informed that following the conclusion of the proceedings on this charge the Crown will seek that I deal, pursuant to the provisions of the Criminal Procedure Act, with a charge of assault against this accused in consequence of what occurred when he visited that family. I have further been informed that there is no dispute with the Crown case statement and indeed that it is accurate. 7 That statement reads:- "Up until the time of this offence, the accused had been living with his mother (the deceased) in her home at 78 King Street, Ashbury. He was employed as a labourer for a packaging company. On Thursday 10 December 1998, he had worked between about 6.00 am and 2.50 pm. Fiori was then driven by a workmate, Anthony Delmas, arriving home at about 3.30 pm. The accused became agitated and aggressive at home and an argument developed after his mother challenged him at about 4.00 pm. In the hallway he punched her face and continued to assault her head after she fell to the tiled floor at the front verandah. This was witnesses (sic) by various passers-by. He also ripped the security grill off the front door, ripped the front garden gate off its hinges and punched the fence. The assault was reported to police who attended at about 4.10 pm after the accused had departed. They found the deceased lying unconscious on the verandah, bleeding from the head. They could not detect a heart beat or breath, and commenced CPR. This continued for about 25 minutes without success. Later post mortem found that death had been caused by blunt force head injuries which were consistent with blows to the face and possible striking the back of the head against the tiles on the verandah. After the accused left the scene of the assault on his mother, he walked several blocks to Cheviot Street, Ashfield. On the way he attracted the attention of others by his erratic behaviour, such as climbing onto the roof of a passing car, and uprooting a rose bush that he took with him. When he reached 41 Cheviot Street, the home of the Delmas family, he was emotionally disturbed, carrying the rose bush, yelling, grunting and he head-butted the front door until he fell down and broke the door. Anthony Delmas attempted to pacify him. Without apparent provocation, Fiori punched Delmas repeatedly until he was rescued by others. Police subsequently attended and arrested the accused after a struggle. As a result of injuries to Fiori's hand, he was taken to Concord Hospital for treatment. He was subsequently interviewed by police (ERISP) and admitted assaulting his mother. Prior to the assault, which he attributed to 'utter madness', he claimed to have felt frustrated about life in general and angry about his mother. At the time of hitting his mother he said he had 'to kill' in his mind and 'something came over me and I just was not thinking at the time'." 8 In the statements of the police officers who had interviewed him at the police station there is clear reference to the eccentricity of his behaviour even then, to the aberrant nature of his affect and his conduct. There is also a wealth of evidence in the material with which I have been provided to show that until a short time prior to these events the accused had been a person who had apparently lived within the community a life that was entirely estimable in content. 9 The medical evidence discloses that for some time, probably for some years, the accused had suffered from the psychosis which led to the commission of the killing. The psychiatrists describe the precise condition differently. Various of the medical witnesses attribute differing roles within that condition to the use of marijuana and to the possible effects of a cycle of steroids used by the accused in an attempt to build his body with a view to attaining esteem within the community and, of course, with a view to reinforcing his own self-esteem. 10 Whatever be the causative basis for the medical condition, whatever be the precise label to be attached to it - and these may be matters of importance for treatment and diagnosis - there is no disagreement amongst the medical experts, including those who had attended the accused and treated him whilst in custody, and those to whose reports I have been referred but that, at the time of the commission of the act comprising the offence for which the accused was charged, he was suffering from a disease of the mind, such that he either did not know the nature and quality of his act or, and in some cases and, did not know that what he was doing was wrong, and thus was not mentally responsible at law for the crime with which he was charged. 11 Since this is a trial by judge alone, I must remember that this is not the only issue before me. I direct myself of the elements of the crime with which he is charged, that is murder, that I must be satisfied beyond reasonable doubt that the accused did the acts which caused the death of his mother, and did so with intent to kill or intent to cause grievous bodily harm, or adverting to but not caring about the prospect that she might die as a result of his acts. 12 I am satisfied beyond reasonable doubt that when he struck his mother, as the evidence discloses that he did, that he intended at least to cause grievous bodily harm, or was recklessly indifferent to human life as prescribed by the section. I am not satisfied that he intended to kill her. 13 I invited both counsel to draw my attention to any other directions that should properly be given by me to myself to comply with the requirements of the Criminal Procedure Act for the purpose of at least looking at the nature of the crime. I was assured there were no further directions which, in respect of that matter, needed to be given. 14 On the question of mental illness I reminded myself that that being a defence raised by the accused, it is the accused who bears the onus of proving it, but only on the lesser standard of proof on the balance of probabilities. I remind myself that it is not open to an accused to avoid the inference of intent arising from his actions by reference to matters that would only go to proof of the defence of mental illness. I remind myself that it is mandatory for me to bring in the special verdict of not guilty by reason of mental illness in the event that, on the balance of probabilities, I am satisfied, as I am here, of the matters that constituted that defence. 15 I remind myself that in those circumstances it is incumbent upon me to have regard to the professional expert evidence of the psychiatrists, and in this case, to have regard to the fact that evidence is unchallenged; indeed, both parties accept that all opinion is unanimously of the view that the accused, at the time of the commission of the acts, was not mentally responsible. 16 I am obliged also to explain to myself the legal and practical consequence of the findings which are open in this trial. Under the provisions of the Mental Health Act 1900 which apply if I find the special verdict of not guilty by reason of mental illness, it is my duty to order the accused to be detained in strict custody in such a place and in such a manner as to me seems fit, until released by due process of the law. He would not return automatically to the community; he would be detained in strict custody in a place which, one may assume, would be a psychiatric hospital gazetted under the Mental Health Act. 17 Whilst detained in strict custody in that way the accused would come under the supervision of the Mental Health Review Tribunal, which comprises a president or deputy president with legal qualifications, and two other members, one of whom must be a psychiatrist and the other with appropriate qualifications to serve on that body. Within 14 days after verdict, the Tribunal would commence review of the accused's case, at the conclusion of which it would make a recommendation to the Minister for Health, which may be unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. 18 If the Tribunal is satisfied, but only if it was satisfied, that the safety of the accused or any member of the public would not be seriously endangered by his release, it could make a recommendation as to his release. If it makes such a recommendation, then that would be considered by the Department of Health which, in turn, would advise the Governor. The Governor would then, in accordance with the recommendation and advice of the Tribunal, either make an order for the detention of the accused or for his release. That order could be conditional or unconditional. The Governor could only make an order for release where the tribunal itself had recommended release. 19 After that first hearing of the Mental Health Tribunal it can, at any later time, and must at least once every six months, review the case of the accused. At such a later review it could make a recommendation to the Minister for Health as to the continued care, detention or treatment of the accused or as to his release, conditionally or unconditionally. 20 Again it would not be free at any stage of review to make a recommendation for release unless it was satisfied that the safety of the accused or any member of the public would not be seriously endangered. Again the matter would go to the Department of Health, the Minister and the Governor, and any recommendation could only be carried into effect by the order of the Governor. 21 If the accused were, at any time, released into the public on conditions and it appeared a breach of those conditions took place then the Governor may order the apprehension of the accused. Such an order would follow by reason of a practical consideration that if a person is released, the Department of Health would maintain a watch over his case, with the assistance of the Community Health Centre, a private psychiatrist or one of the other public facilities available. 22 The conditions which could be applied include conditions going to such matters as living in a particular place, taking particular medication and so on, to ensure that the patient or the accused is properly cared for. Other than pursuant to any such release, the accused would remain in strict custody in one of the psychiatric institutions catering for forensic patients, the only manner in which a person ceased to continue to be a patient is when he is released by the Governor, or is released on conditions after the expiration of a particular period of time or in particular circumstances the release should be come unconditional. But that recommendation could only be made of the Tribunal were satisfied as I have said. 23 It is not necessary for me, in the way in which the Crown and the defence have conducted this matter, to descend to any greater detail by setting out in this judgment the precise passages in the evidence showing the commission by this accused of the acts on which the Crown relies or the precise passages from the medical opinion concerning the illness from which he suffers and his prior history. But it should be clear that he has apparently suffered and desperately tried to cope with delusions of ever increasing gravity over a substantial period, until he was unable to cope any more. 24 What happened is an appalling tragedy. I am satisfied he committed the acts and I am satisfied of the defence. The appropriate course that I should take in these circumstances is that defined by s.38 of the Mental Health (Criminal Procedure) Act 1990. I am guided as to the relevant tests as to what is said in my judgment in Regina v. Gillett [1999] NSWSC 115; Regina v. Maxwell [1999] NSWSC 281 (per Hidden, J.); Regina v. Gabranovic [1999] NSWSC 205 (per Newman, J.); and Regina v. Noyes [1999] NSWSC 397. 25 I have taken into account all the matters that are referred to in those decisions. I am of the view that the defence is made out and I find the accused not guilty by reason of mental illness. I make the order required by s.39 of the Mental Health (Criminal Procedure) Act, that is, that Mr. Fiori be detained in strict custody in "C" Ward of the Long Bay Prison Hospital, and thereafter in such place as is determined according to law until released by the process of law. Last Modified: 09/25/2000 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.