New South Wales Supreme Court CITATION : R .v. TRIMARCHI [2002] NSWSC 62 FILE NUMBER(S) : SC 70097/01 HEARING DATE(S) : 15th February 2002 JUDGMENT DATE : 15 February 2002 PARTIES : Regina Victor Roy TRIMARCHI JUDGMENT OF : Barr J at 1 COUNSEL : Mr P.S. Dare for the Crown Mr D.J. Humphreys for the Accused SOLICITORS : S.E. O'Connor for the Crown Legal Aid Commission of NSW for the Accused CATCHWORDS : Criminal Law- Accused found not guilty on the grounds of mental illness LEGISLATION CITED : Mental Health Act 1990 DECISION : See Judgment at Paragraph 34 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL Graham Barr J 15 February 2002 70097/01 Regina v Victor Roy TRIMARCHI JUDGMENT 1 HIS HONOUR: Victor Roy Trimarchi has pleaded not guilty to four charges, namely that on 3 July 2001 at Kempsey he assaulted Valerie Elaine Hyland thereby occasioning her actual bodily harm, that at the same time and place he assaulted Gail Bateman, that at the same time and place he murdered Eunice Benedek and that at the same time and place he attempted to enter the dwelling house of Joyce Morris with intent to commit a serious indictable offence, namely to assault Mrs Morris and occasion her actual bodily harm. 2 The accused has elected for trial by judge alone and the Crown has consented to that form of trial. I shall explain when I review the psychiatric evidence why I think it appropriate that the accused be tried without a jury. 3 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offences but he admits all the facts relied on, so there is no doubt about those matters. The accused contends that he is not guilty of any offence because at the time of the events giving rise to the charges he was mentally ill and therefore not legally responsible for his actions. He must prove that it is more likely than not that that was so. 4 The statement of the test for a defence of mental illness was propounded as long ago as 1843 in R v McNaghten. The question to be answered was whether the accused at the time the offence was committed was suffering from a defect of reason, from a disease of the mind, so as not to know the quality and nature of the act he was doing or, if he did know it, that he did not know that what he was doing was wrong. The law has been amplified in Australia in the present century and the test may be said to be whether the accused was able to appreciate the wrongness of the act that he was doing. If through disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. It may also be said that if a disease of the mind so governs the faculties that it is impossible to reason with some moderate degree of calmness about the moral quality of an act, the actor is prevented from knowing that what he does is wrong. 5 The accused was born on 21 June 1968. He married his wife, Amelia, 10 years ago and they have a six year old daughter. When he was nineteen years old the accused took an overdose of tablets in an attempt to commit suicide, apparently reacting to stress arising from the breakdown of his parents' marriage and of a relationship he had had with a girlfriend. He was treated at Westmead hospital for a few days and left the hospital voluntarily. There was apparently no need for him to continue to keep in touch with the hospital. 6 Ever since the age of fourteen years the accused has smoked cannabis. He has developed a high tolerance to its effects and, at least in recent times, has usually smoked strong preparations. 7 For about seven years before July 2001 the accused suffered from an increasing level of paranoia. He thought that people were out to get him. He changed his place of living twice as a result of it. For at least six months before July 2001 he experienced auditory hallucinations. He thought that he heard his neighbour continually threatening him. He also reporting hearing voices telling him that he was the Messiah and sending other messages that he attributed to Satan and to aliens. He increased his use of marijuana in response to these stressors. 8 Mrs Trimarchi noted that the accused's behaviour became more bizarre within the month leading up to 3 July 2001. He said the he was "God" and "Jesus" and that he had to collect eleven apostles to help him save the world. He was to name his religious sect "The Creators". 9 At 11:00pm on 1 July the accused telephoned a friend who lived nearby and then went to his house. He told his neighbour that he was the chosen one, the son of Christ, and that the neighbour was the first apostle. The neighbour was so concerned that he walked the accused home, principally to ensure that Mrs Trimarchi was safe. He stayed with the accused until 3:00am trying to calm him down. 10 A short time later the accused woke his wife saying that he was Gabriel and Michael and that she should get up. He was pacing up and down, naked, saying that he was the destroyer. He spoke about decapitation and threw a machete in her direction. He said that Satan would kill her. 11 Two hours later he left the house and Mrs Trimarchi went to the police for the protection of her daughter and herself. 12 During the same morning the accused went to the house of another friend. He told him that he believed that his wife was dead. The friend asked his wife to ascertain that Mrs Trimarchi was safe and, at the accused's request, drove him in a particular direction. The accused jumped out of the car because he saw a police car. He ran off and was next seen at a nearby house, the occupant of which knew him. The accused was naked. He said he was Jesus Christ and knelt, as thought praying, looking into the sky. The occupant of the house reported the matter and the police came and took the accused into custody. 13 They took the accused to Kempsey hospital. They also obtained an apprehended violence order and served it upon him. They were contemplating charging him with an offence but considered it in his best interests if he were admitted to the psychiatric ward of the hospital. The accused was admitted to the ward and those having the care of him intended to have a medical practitioner provide a certificate under the provisions of the Mental Health Act, if appropriate, and in that case have him removed to Coffs Harbour District hospital. 14 Ms Valerie Hyland was a nurse working in the psychiatric unit at Kempsey District hospital. At about 3:00am on 3 July she heard the accused taking a shower and chanting, as she thought, like a Buddhist monk. He emerged from the shower and, still naked, punched her in the face. She managed to activate her personal duress alarm and a second nurse, Ms Gail Bateman responded and tried to assist her ward off the accused's attack. The accused punched Ms Hyland again, knocking her to the floor. He kicked her as she lay there. She received soft tissue injuries to her hip, back and thoracic region and six fractures to facial bones. The attack on Ms Hyland is the subject of the first count. 15 Whilst Ms Bateman was trying to help Ms Hyland the accused punched her in the face and knocked off her glasses. When she tried to pick them up he kicked her in the body. That assault is the subject of the second count. 16 Having assaulted the two nurses the accused went into the ward and slammed the door behind him. The only other occupant was Ms Eunice Benedek, aged seventy-three years. The accused began to question her and something he imagined she said or did not say made him think that she was intending to obey the Devil or was perhaps an alien. He picked up a coffee table and repeatedly hit her about the head. Ms Benedek sustained multiple skull and facial fractures. According to the author of the post mortem examination report, Dr. Lee, Ms Benedek must have died straight away. 17 The accused used the coffee table to smash his way out of the ward and escape. He went to a house in Kempsey at about 3:00am. The resident, Ms Joyce Morris, noticed him standing under a street light, raising his arms to the sky, kneeling and chanting. He noticed Ms Morris and told her that "Manta" had instructed him to kill her. He ripped the security screen door off, yelling that he was going to kill her. He tried to force open a glass sliding door in order to gain entry to the house and attack Ms Morris. Fortunately he was unable to get in. He ran away. That attempt is the subject of the fourth count. 18 The accused was arrested when a policeman was called and found him naked in a paddock, squatting on his haunches and rocking backwards and forwards. 19 As well as the evidence of the accused's wife and of neighbours and friends which I have summarised, the Court has received reports from four psychiatrists, Dr. Nielssen, Dr. Skinner, Dr. Westmore and Dr. Mastroianni. Dr. Nielssen takes the view that the accused was acutely mentally ill when he killed Ms Benedek. He diagnoses the accused as then suffering from schizophrenia, a disease of the brain, resulting in a defect of reasoning and delusional beliefs. He thinks that the accused was deprived of the awareness that his actions were morally wrong, that his thinking was disorganised, that he was in an agitated state and that he was unable to reason with any composure about the consequences of his actions. 20 Dr. Skinner thinks that at the relevant time the accused was suffering from chronic paranoid schizophrenia. She thinks that when he killed Ms Benedek and injured the nurses the accused was suffering from an acute episode of schizophrenia and was affected by delusions to such an extent that he did not know what he was doing and that he did not realise that what he was doing was wrong. 21 Dr. Westmore has diagnosed the accused as suffering from a paranoid schizophrenic illness. In his opinion the accused was suffering from schizophrenia at the time. As a disease of the mind it would have totally deprived him of his capacity to know that he ought not to do the act. He thinks it probable that the accused was aware of the nature and quality of his actions at the time that the incident occurred. He thinks that the accused's psychosis may have been induced by the marijuana he took. 22 The accused's treating psychiatrist since his arrest has been Dr. Tony Mastroianni. He thinks that the accused was suffering from the mental illness, schizophrenia, exacerbated by a chronic marijuana dependence disorder. He thinks that it is unclear whether the illness was caused rather that merely exacerbated by drug dependency. He is of the view that the accused was disordered in the mind by virtue of his psychotic symptoms, that those symptoms arose from the disease of the mind diagnosed as schizophrenia and that although the accused may have known that the act he was committing was wrong, his symptoms of mental illness and his paranoid delusions would have greatly impaired his judgment to be able to appreciate the nature and the quality of his acts and their wrongfulness. 23 The four psychiatrists are therefore unanimous in the opinion that the accused has available to him the defence that he is not guilty because of mental illness. Although there are slight differences among them as to the formulation of the illness and as to its relevant effects, those differences are not significant. What is important is that for the reasons expressed in the several reports each psychiatrist is of the same ultimate opinion. 24 In my opinion the accused has proved on this material that at the time of the events giving rise to the four charges he was mentally ill and has the defence of not guilty on the ground of mental illness available to him. He must therefore be found not guilty of each of the charges. 25 Ever since the time of his arrest the accused has been treated with anti-psychotic drugs. According to Dr. Mastroianni he is no longer displaying evidence of psychosis. Dr. Nielssen thinks that he is in partial remission, having largely recovered from the acute phase of his illness. No psychiatrist disagreed with these conclusions. Accordingly, no question arises whether the accused is unfit to be tried. He has demonstrated to the medical witnesses that he understands the trial process and the functions of those who take part in it and that demonstrates to the Court that he has the capacity to elect for trial by a judge without a jury. 26 The evidence shows that the accused needs to continue to be treated with anti-psychotic medication and that that regime should be modified only under strict psychiatric supervision. 27 It is necessary to say a number of other things. The events giving rise to these charges have been distressing and perplexing for the family of Ms Benedek, for Ms Hyland and Ms Bateman and their families and for the family of the accused himself. The sympathy of the Court goes out to the victims and all those who have been touched by these tragic events. 28 The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990. A strict statutory regime will then come into effect. 29 The Mental Health Review Tribunal is a body of professional experts. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused. 30 After hearing the evidence at any later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council. 31 If the accused were at any time released back into the public on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again. 32 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients. 33 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered. 34 I find that the accused is not guilty of any of the charges by reason of mental illness. I order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Review Tribunal until released by due process of law. ********** Last Modified: 03/06/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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