New South Wales Supreme Court CITATION : R v Mikiewicz [2000] NSWSC 988 FILE NUMBER(S) : SC 70068/99 HEARING DATE(S) : 09/10/00 10/10/00 JUDGMENT DATE : 12 October 2000 PARTIES : Regina Roman Tadeusz Mikiewicz JUDGMENT OF : Dowd J at 1 COUNSEL : Ms W Robinson- Crown Mr C Craigie- Accused SOLICITORS : CATCHWORDS : Murder - Plea of not guilty on the ground of mental illness - Judge alone trial - Fitness to plead - Psychiatric evidence - Mental Health Review Tribunal Criminal Procedure Act 1986. LEGISLATION CITED : Mental Health Act 1900. Mental Health (Criminal Procedure) Act 1990. R v Gillett [1999] NSWSC 115. R v Maxwell [1999] NSWSC 281. CASES CITED : R v Gabrabovic [1999] NSWSC 205. R v Noyes [1999] NSWSC 397. R v Fiori [2000] NSWSC 73. DECISION : 1. Not guilty of murder on the ground of mental illness; 2. The accused is to be detained at the prison hospital at Long Bay and at such other places according to law, unless released by the processes of law. THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION DOWD J Thursday 12th October 2000 70068/99 REGINA v ROMAN TADEUSZ MIKIEWICZ JUDGMENT 1 HIS HONOUR: This is a trial by way of judge alone of the accused, Roman Tadeusz Mikiewicz, who was indicted before me on a charge of murder of David Andrew Redman at Windale, a suburb of Newcastle in this State, on or about 24 May 1999. To this indictment the accused has pleaded not guilty on the grounds of mental illness. 2 The accused elected to have a trial before a judge alone on 24 August 2000, having received advice in relation to that election from his solicitor, Mr Greg Adler, and the experienced criminal trial lawyer, Mr Chris Craigie, who appears for the accused in these proceedings. 3 The Court was advised by Mr Craigie that the accused adheres to his election. There has previously been a determination by a Judge of this court that the accused is fit for trial, and the court has been advised by Mr Craigie on behalf of the accused that there is nothing to detract or in any way alter the finding that the accused is fit to be tried. 4 I am satisfied that the accused has elected to be tried in accordance with s32 of the Criminal Procedure Act 1986, and that pursuant to s32(1)(b) of that Act, I am satisfied that he has sought and received advice in relation to that election from both his barrister and solicitor, and that the election was made with the consent of the Director of Public Prosecutions. The election was made before the date fixed for his trial in this court. 5 The Crown has tendered a series of statements, together with a transcript of an electronically recorded record of interview ("ERISP"), which occurred on 23 June 1999. It is agreed that the record of interview can be taken as evidence of the contents of the ERISP, and a criminal history has been admitted into evidence. All have been admitted with the consent of the accused. 6 I have also received in evidence a number of medical reports which I will deal with later in this judgment, together with the oral evidence of Dr Bruce Westmore, forensic psychiatrist. FACTS 7 The deceased was a forty year old Accountant who normally resided alone at 35 Sturt St, Windale. In early May 1999, the deceased had advertised for a boarder. This resulted in the accused becoming a boarder in the deceased's house in mid-May 1999. 8 The body of the deceased was discovered at about 5.15 on the morning of Tuesday 25 May 1999 on the front steps of the adjacent premises at 33 Sturt St, Windale. The deceased was discovered by a neighbour, Mr Richard Bowdler. Mr Bowdler and his wife had heard sounds of a disturbance at the Redman house at about 11pm the previous evening. 9 Post mortem examinations established that the deceased died as a consequence of multiple stab wounds, many of them to his back, in what appears to have been a violent and frenzied attack. 10 An examination of the scene showed that the attack had taken place within the kitchen of 35 Sturt St, Windale. 11 In August 1998, using the birth certificate of an Australian citizen named James Stuart Moore, the accused had assumed the identity of that person and obtained further documents, including a passport in that name. 12 At about 2.20am on 25 May 1999, the accused attended the casualty section of the Royal Prince Alfred Hospital, where he was treated under the identity of Paul Ward for a laceration to his left hand. 13 On 30 May 1999, the red Laser motor vehicle owned by the accused was located in Surry Hills. The accused did not return to the deceased's premises after the morning of 25 May 1999. 14 At about 1.10pm on 2 June 1999, the accused attempted to board a flight from Melbourne to New Zealand. An alert was however activated when the accused presented the passport in the name of Paul Ward, a previous identity used by him. The accused fled the terminal. 15 On 23 June 1999, the accused was arrested outside the Polish Consulate in Collins St, Melbourne, having obtained a fresh Polish passport in his actual name, under which he has been charged. He was then interviewed and was returned to this state. EVIDENCE 16 Exhibited before me were a considerable number of statements, the relevant aspects of which I will set out below as being the more salient evidence. 17 Detective Senior Constable McLay of the Newcastle Crime Scene Section of the New South Wales Police Service, gave evidence of his qualifications and experiences as a crime scene investigator, which evidence I accept. Detective Senior Constable McLay attested to the fact of his attendance on the morning of Tuesday 25 May 1999 at premises 33 and 35 Sturt St, Windale, where he examined the scene and took photographs photogrammetrically (he did not do the terrestrial photogrammetry). This resulted in the tender of an exhibit comprising the interior of part of the premises at 35 Sturt St, and the exterior of 33 and 35 Sturt St, Windale. 18 Detective Senior Constable McLay discovered David Andrew Redman's body with his lower legs resting on the concrete driveway, and his torso and upper body on the steps of number 33. He was wearing a grey sloppy joe, white T-shirt, a pair of grey track pants, underpants and was barefooted. There were numerous stab wounds to the back of the deceased and cuts to the sloppy joe, which was heavily bloodstained. The deceased had a large open wound running from down behind his left ear and down his left cheek. Rigor mortis was present in the body. The front of the premises showed blood stains and a number of cigarette butts. 19 A number of photographs of the interior of number 35 were exhibited showing the contents of the house, including a number of blood spots, some on the ceiling. Some of these are depicted in the photogrammetry exhibit. 20 Detective McLay attended the post mortem examination, which occurred at 8am on Wednesday 26 May 1999. Dr Ferguson performed the usual post mortem examination and carried out certain tests. 21 The ERISP record of interview was conducted between Detective Senior Constable Bateson at Victorian Police Homicide on Wednesday 23 June 1999, in the presence of New South Wales police officers. 22 After being advised of his rights, the accused stated that he was born on 8 September 1971, he then being twenty-seven years of age, and that he held no Australian citizenship but that he was a citizen of the Republic of Poland. He made no admissions of the attack on the deceased, but gave certain evidence as to the identities used by him and the techniques used to create identities. 23 Detective Senior Constable Mark Stone's evidence was that he inspected the premises at 35 Sturt St, Windale, and that he discovered a photocopy of the New South Wales birth certificate of James Stuart Moore. He also discovered a real estate agent's application for leasing premises in the name of Paul Edward Ward of England. Detective Stone was shown a photocopy of an application for a Polish passport under the name of the accused. In his opinion, this was the same person who used the names of James Stuart Moore and Paul Edward Ward. 24 Detective Senior Constable Mark Stone found a smearing of a blood stain on a shelf in the accused's bedroom, and a series of documents including a copy of a birth certificate in the name of James Stuart Moore. 25 The evidence of ambulance paramedic, Peter Franks, was of his examining the body of the deceased on the morning of 25 May 1999. He described the multiple stab wounds to the deceased's neck, back and stomach and that rigor mortis had set in. 26 The evidence of Senior Constable Mitchell of the Fingerprint Unit, was of his examination of the premises. His evidence was that the fingerprints of James Stuart Moore and the accused were identical. 27 The evidence of the father of the deceased was that the deceased had decided to take in a boarder in early May 1999 and that on 24 May 1999, the deceased came to his parents' home and told them that he was going to ask the accused to leave. The evidence of the deceased's mother was that the deceased had told her that the accused's conduct was intolerable and that he told her that he was going to tell his boarder to leave, and that on the evening of the 24th, the deceased left to go home. It was to be the last time that his parents saw him. 28 The evidence of Henry Howard, a friend of the deceased, was that he rang on the night of 24 May 1999, and spoke to a person at the deceased's home who had some sort of European accent. About an hour later, at about 9.45pm, he had a phone conversation with the deceased. His evidence was that the deceased had told him that the deceased had asked the boarder to leave. 29 The evidence of a cousin of the deceased was that she had rung the home of the deceased at about 8pm. The phone was answered by a male person with an accent. She asked that person to get the deceased to call her. She did not receive any reply. 30 The evidence of the next door neighbour, Mr Bowdler, was that he had seen the deceased's boarder being of mid to late twenties with a clean cut appearance and that he had seen the boarder drive a red Laser which was parked at the deceased's home. He said that he woke up at about 11.03pm on the night of the 24 May 1999, and that he had heard a muffled sound as though someone who was drunk was vomiting. He then heard a car door slam shut and a four cylinder car drive off at speed. He then went back to bed and woke up at 5.15am, and discovered the deceased's body. 31 There was evidence from Mr Neville Guse, a car salesman, who sold the accused the red Laser vehicle in the name of James Stuart Moore, describing a person with an appearance consistent with the accused. 32 There was evidence from James Stuart Moore of his selling his birth certificate to a person whose description was consistent with that of the accused. 33 There was then a number of witnesses who gave evidence of the use of the name Paul Edward Ward and James Moore, by a person answering the description of the accused. 34 There was then evidence by Roger Lamb to the affect that on Wednesday 26 May 1999, near where he worked at Surry Hills, he noticed a car similar to the accused's which remained there until 28 May but which had gone on 31 May 1999. There was evidence by the police of the removal of that vehicle on 30 May 1999. 35 Evidence was also produced by a medical practitioner at Royal Prince Alfred Hospital, of the treatment of an injury consistent with that sustained by the accused. The injured person gave the name Paul Ward. 36 The evidence of Christine Gill, a clinical pathologist, was that blood taken by way of swab from the accused's red Laser vehicle, registered number SIG-164, had the same DNA profile as the accused's blood, with a probability of one in nine hundred million individuals. She also gave evidence that David Redman had the same DNA profile as the blood on the shelf and a newspaper recovered by Detective Senior Constable McLay from the bedroom of the accused. 37 Further evidence was provided of an attempt by the accused to depart, and of the accused buying a ticket to Auckland on 2 June 1999. A person answering the description of the accused attempted to pass Customs at Melbourne Airport, and that the photograph in the passport which had been presented matched that person. The person who signed as P Ward, was sitting at the supervisor's office but had left when the Customs officer went to the toilet. His description matched that of the accused. 38 There was then evidence of the arrest of the accused and the description of the injury to the accused's hand. It is clear that the accused, Paul Ward, and James Moore are one and the same person. 39 I have not attempted to detail all of the evidence called in support of the Crown case, but on the whole of the evidence before me, I find that the accused was present in the home of the deceased on the night of 24 May 1999, and that he stabbed the deceased a number of times. I find beyond reasonable doubt that that act was done with the intention of inflicting grievous bodily harm to the deceased. However, I am unable to find to the necessary criminal standard that the act was done with the intent to kill the deceased. 40 I now turn to the evidence in support of the defence of not guilty on the grounds of mental illness, some of that evidence coming from witnesses called by the Crown and some by the accused. 41 Evidence was given by forensic psychiatrist, Dr Bruce Westmore, by way of a report of 14 April 2000 and orally before this Court, he being a highly experienced forensic expert. His evidence at page 10 of the transcript was of the accused: "He suffers from a quite severe paranoid schizophrenic illness. He was mentally ill at the time that this offence occurred. He had very strong paranoid delusional beliefs about the victim in this matter. He acted on those beliefs. He was mentally ill at the time of the offence and the mental illness played a direct role in his offending behaviour. In other words, in terms of the legislation, he was totally deprived of his capacities at the time the act was committed." 42 Dr Westmore's evidence was that the fact that the accused was able to carry out activities to cover his escape from Australia does not affect his opinion as to the accused's mental state. Notwithstanding the elaborate activities, his evidence was at page 10: "In terms of his ability to know that he ought not to do the act, that was deprived at the time." 43 According to Dr Westmore, it would be desirable from a psychiatric perspective for the accused to have long term support, such as psychiatric supervision in a secure environment. He noted that this could be provided either through the Long Bay Prison, where the accused is now held, or at some other secure hospital facility. 44 Dr Westmore described an incident of bizarre behaviour by the accused in New Zealand, involving cruelty to an animal. Dr. Westmore was comfortably of the view that it is highly likely that the accused had been mentally ill for some years. This evidence was supported by Dr Christopher Canaris, a forensic psychiatrist, whose report was exhibited before me. His evidence is that the accused suffers from severe and chronic paranoid schizophrenia, an inherent disorder of the mind. It is virtually indisputable that the illness has been present since about 1998, and more likely since his adolescence. 45 This evidence was further supported by the evidence of Dr Kathleen Smith of the Corrections Health Service, whose opinion was that the accused was acutely psychotic and it is likely that he has schizophrenia which back dates to at least 1998. The Court was provided with a further report of Dr Canaris, dated 12 May 2000, reinforcing his view that the accused suffers from paranoid schizophrenia, and that he was psychotic at the time of the killing. The accused admitted to Dr Canaris that he had killed the deceased. 46 The evidence of the psychiatrists was supported by the evidence of a Mary-Anne Hall, of events which occurred in New Zealand in July 1999. She stated that the accused, using the name James Moore, had a knife which was in the range of 26 to 30 centimetres in length. She described the devastation of her home caused by the accused throwing objects around the house and the singed burn marks to her cat and singe marks within the oven. The cat had to be destroyed. 47 Further evidence was also evidence was also provided by Roseanne Corrigan, who noted violent action by the accused when she told him that he was to leave her premises. 48 I direct myself that in respect of the charge of murder, I must apply the criminal standard and find beyond reasonable doubt that the accused caused the death of the deceased, and that that act causing the death was done with reckless indifference to human life or with the intent to kill or inflict grievous bodily harm upon the deceased. 49 I find beyond reasonable doubt that it was the act of the accused in stabbing the deceased that caused his death, and that this action was done with the intent to inflict grievous bodily harm on the deceased. 50 On the question of the defence of mental illness, I direct myself that, being the defence raised by the accused, the onus of proving it rests with the accused but only on the lesser standard of proof, which is the balance of probabilities. It is not open to an accused to avoid the inference of intent that arises from actions by referring to matters that only go to proof on the defence of mental illness. It is mandatory for me to bring in a 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. 51 I further direct myself that if I am satisfied that there was such a defect of reason from disease of the mind, then to constitute the defence, it must be of such a character as to either prevent the accused from appreciating the nature and quality of the act that he was doing, or to prevent him knowing that what he was doing was wrong. 52 The defence of mental illness requires me to consider whether upon a balance of probabilities, that is a weighing of the scales, the accused has proved that he was suffering from a defect of reason due to a disease of the mind, such that he did not understand and appreciate the nature and quality of his act, or that he did not know that it was a wrong act to commit in the sense that an ordinary reasonable man understands right from wrong; that is, he was disabled from reasoning with some moderate degree of composure and sense as to the wrongness of his act. 53 In those circumstances, I am obliged to have regard to the professional expert evidence of the psychiatrist, and in this case to take into consideration the fact that the psychiatric evidence is unchallenged. Indeed, both parties accept that all expert opinion is of the unanimous view that at the time of the commission of the acts, the accused was not mentally responsible. 54 I must then explain to myself both the legal and practical consequences of the findings which are open in this trial. Under the provisions of the Mental Health Act 1900, which will apply to this particular case if I find the special verdict of not guilty by reason of mental illness, it is my duty to order that the accused be detained in strict custody in such a place and in such a manner as to me would seem fit, until such time that the accused is released by the due processes of the law. In such a case, the accused would not automatically return to the community, but one may assume that he would be detained in strict custody in a place which would be a psychiatric hospital gazetted under the Mental Health Act 1900. 55 By being detained in such a manner, the accused would fall under the supervision of the Mental Health Review Tribunal. This Tribunal 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. The Tribunal would commence review of the accused's case within fourteen days of this verdict being delivered. At the conclusion of the review, the Tribunal would make a recommendation to the Minister for Health. The recommendation can either be unconditional or subject to conditions as to the manner in which the accused should be detained, cared for, or treated. 56 The Tribunal can only make a recommendation as to the release of the accused if it were satisfied that the safety of the accused or any member of the public would not be seriously endangered by 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. In accordance with the recommendation and advice of the Tribunal, the Governor would then either make an order for the detention or release of the accused. Such an order can either be unconditional or subject to conditions. The Governor may, however, only make an order for release where the Tribunal itself has recommended release. 57 After the first hearing of the Mental Health Tribunal, it can at any later time, and must at least do so once every six months, review the accused's case. At such 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, being either conditional or unconditional. 58 It would not be free at any stage of review to make a recommendation for release unless the Tribunal were 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 order of His Excellency the Governor. 59 However, if at any time the accused were released into the public on conditions, and it appeared that a breach of those conditions has occurred, 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, the private psychiatrist or one of the other public facilities available. 60 The conditions that could be imposed include, but are not limited to, conditions relating to such matters as living in a particular place, taking particular medication, and ensuring 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 as a patient is when they are released by the Governor or released on conditions after the expiration of a particular period of time, or in particular circumstances the release should become unconditional. However, such a recommendation could only be made if the Tribunal were satisfied, such as I have indicated earlier. 61 I find beyond reasonable doubt that the accused committed the act which caused the death of the deceased, and that that act was done with the intention to cause grievous bodily harm. Homicide is conceded by counsel for the accused. I find that the defence of not guilty on the grounds of mental illness to be made out on the balance of probabilities. 62 This was a tragic and senseless killing. It has left sorrow in the hearts of members of the deceased's family and his friends, and the court can only acknowledge the sadness and tragedy that these people have to live with. However, in the light of the determination that I have made and the circumstances of this case, the appropriate course that I should take is that defined by s38 of the Mental Health (Criminal Procedure) Act 1990. I am guided by the relevant tests enunciated in R v Gillett [1999] NSWSC 115; R v Maxwell [1999] NSWSC 281, R v Gabranovic [1999] NSWSC 205, R v Noyes [1999] NSWSC 397, and R v Fiori [2000] NSWSC 73, all of which matters are matters that I have taken into account. 63 I order that under s39 of the Mental Health (Criminal Procedure) Act 1990, the accused be detained in strict custody at the prison hospital at Long Bay according to law, and at such other places according to law as may be determined until he is released by the processes of law. 64 I express to counsel my gratitude for their assistance, and again my sympathies to the family of the deceased. oOo Last Modified: 11/02/2000 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.