New South Wales Supreme Court CITATION : Regina v Robert Joseph Saad [2002] NSWSC 146 FILE NUMBER(S) : SC 70093/01 HEARING DATE(S) : 22 February 2002 JUDGMENT DATE : 22 February 2002 PARTIES : Regina Robert Joseph Saad JUDGMENT OF : Sully J at 1 COUNSEL : P. Dare - Crown P. Bodor QC - Prisoner SOLICITORS : S. E. O'Connor - Crown Nikola Velcic & Assoc. - Prisoner Criminal Procedure Act 1986 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 (NSW) Mental Health Act 1990 DECISION : Not guilty by reason of mental illness; to be detained in the psychiatric ward of the hospital at the Long Bay Correctional Cente, or such other place as should be determined by the Mental Health Review Tribunal until released by due process of the law IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SULLY J Friday 22 February 2002 70093/01 – REGINA v ROBERT JOSEPH SAAD ON SENTENCE 1 HIS HONOUR: This morning the Crown called for trial in this Court Mr Robert Joseph Saad. Mr Saad appeared in custody and represented by experienced Queen's counsel. 2 An indictment was presented against Mr Saad, that indictment charging him with having, on 25 December 2000 at North Rocks in this State, murdered one Lisa Jane Daniel. 3 In what is now to follow, I shall refer to Mr Saad as "the accused" and to Miss Daniel as the victim. 4 Upon arraignment, the accused pleaded not guilty. There was thereupon tendered, and admitted into evidence as Exhibit A in the trial, a document having the effect, put simply, of the accused and the Director of Public Prosecutions both consenting to the trial of the accused by judge alone. That document is expressed to be an election made pursuant to section 32(1) of the Criminal Procedure Act 1986. In fact, the relevant law is now stated in section 16 of the same Act. 5 I was satisfied that the document represented an authentic election on the part of the accused. I was satisfied that all the other statutory requirements of section 16, and in particular sub-section 1 of that section, had been complied with. The trial of the accused has proceeded, therefore, as a trial by judge alone. 6 The entirety of the evidence in the trial has been documentary evidence. The documents in question have been arranged in a folder which has been admitted into evidence and marked Exhibit B on the trial. There will be found in a pocket in the front of the exhibit three sheets which I have caused to be kept there as a matter of clerical convenience. They do not form part of the exhibit. 7 The first page of the exhibit is a table of contents which is self-explanatory. I have marked in red the items numbered 2 through 12 in that table of contents, thereby indicating that they are the documents to be found in the folder and actually constituting the exhibit that is now Exhibit B in the trial. The initialled note at the foot of the table of contents is my note in my handwriting. I remind myself, as I would charge a jury were there one, of the need to have regard to the whole of the contents of that documentary evidence; and to do so in a way that is both correct in law, and fair and sensible in fact. 8 I have read the entirety of that material bearing those admonitions in mind. A fair reading of the entirety of the material in Exhibit B indicates quite clearly that the only issue of substance which is tendered in a real way for the present decision of the Court is the question whether a special defence of not guilty by reason of mental illness can be made out. Provision for such a defence is made in sections 37, 38 and 39 of the Mental Health (Criminal Procedure) Act 1990 (NSW) 9 It will be necessary to return presently to a more particular consideration of those statutory provisions, and of the way in which they are to be applied correctly in law, and fairly in fact, to the evidence in this trial. It is, however, necessary before coming to any question of a special defence to consider first whether the evidence to hand sufficiently establishes to my satisfaction, as the tribunal of fact, and beyond reasonable doubt, that the Crown has established each of the material ingredients of the crime of murder as charged in the indictment. 10 Put another way, it is necessary first to enquire whether the Crown has proved beyond reasonable doubt the following matters: (1) the death of the victim; (2) some act or acts of the accused causative of that death; (3) the requisite criminal intent on the part of the accused, assuming in that respect some act or acts of his that was or were in fact causative of death. 11 The requisite intent, so far as is relevant in this trial, is an intent either to kill or to inflict grievous bodily harm upon the particular victim. Grievous bodily harm means, in simple English, really serious bodily injury. 12 In order to consider whether or not the Crown has established beyond reasonable doubt the material ingredients of the crime charged, it is convenient to look in some appropriate detail at the relevant factual context. 13 It appears from the evidence that the accused and the victim were acquainted. He himself described that acquaintance, - see question and answer 49 in his electronically recorded interview with the police, - as having been an acquaintance that was "on and off pretty much for like five years, I see her like once in a blue moon, pretty much, she is also friends with my sister." 14 Drawing further from the accused's own version in that record of interview, it seems that on 24 December 2000 he met the victim by prior arrangement. They went to his cousin's home where a Christmas party was in course. They spent some time together at the party and, among other things, "...had some Ecstasy tablets and then we went to my place throughout the night, probably around, I'm not sure of the time, twelve o'clock." 15 They stayed there for a little while, as it would seem, and then went to Star City. At Star City developments occurred which led on almost ineluctably to the tragic events that supervened on that night and early on the following morning. The accused, in his record of interview, describes having gone to Star City with the victim. He says that they did not go very far into the Star City complex for a reason which he himself describes, -see question and answer 109, - as follows: "Q 109. Did you go into the, did you go up in the escalators? A. I think we went into the lift section and I couldn't go in 'cause I was all delusional. I was, throughout the car park I was sort of, something popped into my head. I started thinking silly things about Lisa." 16 In successive questions and answers the accused explained that he conceived the idea that the victim either was, or had been, what he the accused described as "a child molesterer". He went on to explain that he started to press upon the victim various questions related to the topic of child molestation, and having about them what he described as the character of an interrogation. He said that he was pressing her with such questions as: "Have you done it before?"; and he said "Whatever came into my head." 17 He said that he developed that interrogation by actually "accusing" the victim, as he put it, by just asking her over and over again whether she had "done it". The victim, apparently, reacted much as one might have thought normal in the face of such an approach by her companion of the evening. She asked him why he was asking her such questions; and after some exchanges of the kind which I have thus far described, the two of them left the Star City premises and went back to the accused's then home. 18 What happened when they got back to the home was really an extension of what had happened at Star City, but in a much more intense form, and with much more terrible practical consequences, as events unfolded. As the accused himself put it, - see question and answer 128 and following - , "...I just wouldn't drop the subject..." and then "...I just fully believed that she did it. So I started accusing her, saying, Look you did it, just tell me, tell me--". 19 What then happened is described in all necessary detail in the answer to question 132 which reads: "A. It was like, I just kept at it, accusing her. I'm trying to remember, she said, No I didn't, but it was like, I believed it so bad, I tried to get her to confess it and I was like, Tell me Lisa, I've gotta know, I said, Listen if you've done it, tell me. I grabbed her by the shirt. I got her on the couch and I said, Tell me, did you do it? She said to me, she wouldn't answer me. I said, Fuck Lisa, did you do it? She wouldn't answer me and I just kept going. I grabbed her in a headlock, I had to hold her down and I said, Lisa, tell me, tell me, tell me. She wouldn't say anything, she wouldn't say anything. Then I believe like she was being stubborn, like you know she was being stubborn, she didn't want to say nothin'. 'Cause I thought, you know, if you didn't even do it, you'd say, Yeah, I did it, I did it, let me go, let me go. She wasn't saying anything, so I grabbed her in the headlock, kept her down and then I started saying, Please Lisa, just tell me, tell me. I believed that I knew and she didn't say anything. We kept going for probably around twenty minutes and I choked her. I had her in a headlock, choked her, stopped her breathing and I killed her." 20 The accused went on to describe, in detail which it is not now necessary to repeat, the nature of the headlock and how he had applied it. He gave a practical demonstration of that action on the video of the interview, which video I have myself seen in Court this morning. 21 It is convenient to pause at that point to say the following things: I am satisfied beyond reasonable doubt of the death of the victim; and that the cause of her death was strangulation. The autopsy report which forms part of Exhibit B would itself be sufficient, in my opinion, to establish at least those foundational matters, and to establish them beyond reasonable doubt. 22 I am satisfied beyond reasonable doubt that it was, in the most precise particular, and direct sense, an act of the accused, or more precisely a series of interconnected acts of the accused, that was or were causative of that death by strangulation of the victim. I have not the slightest doubt that the version given by the accused in his record of interview was not some delusional confabulation, but describes with complete accuracy what, in fact, happened on the relevant occasion to bring about the death of the victim. 23 There remains the element of intent. Once again, as it seems to me, all that needs to be said in that regard is said by the accused himself in further answers given to further questions in the record of interview. In his answer to question 150 the accused described his reasoning and his attitudes and, indeed, his motivations as follows: "A. In the beginning like I was scaring her. I scared her, I grabbed her by the throat, I was scaring her, like confess to me, because I believed it so much. I scared the girl and then we were on the floor and in the end I grabbed her in a headlock, I'm saying, Tell me Lisa, tell me Lisa, and I sort of believed that it was something I had to do. Then too late, I, after that I tried to revive her again." 24 In the immediately following answer, to question 151: "A. I dunno, there was like conversation going on and I was trying to tell her, confess, stop being stubborn, stop being stubborn. It was like on and off, I'd let her go and I'd come back and I tried to get her to confess and it was just like, I didn't, I believed like she did something. I didn't even want to kill her, but I believe like I had to...". 25 Still later, and in his answer to question 176, the accused explained that he had held the victim in the headlock, of which I have earlier spoken, for a period which he, the accused, thought to have been a period of about five minutes. He said: "...I would release her a bit, I would say, Lisa, tell me, I don't want to do it, and I just believed I had to do it in the end, yeah." 26 I am satisfied beyond reasonable doubt, and I would say well satisfied beyond reasonable doubt, that the accused, at the time he strangled the victim in the way that I have described, had either an intent then to kill her, or at the very least an intent to inflict upon her grievous bodily harm; and either intent suffices for the crime of murder. 27 On the basis of what I have said thus far, I have come to the conclusion that leaving aside for the moment any question of special defence, the Crown has proved amply, and beyond reasonable doubt, each and every one of the material ingredients necessary to constitute in law the crime of murder. 28 I am satisfied beyond reasonable doubt that a special verdict, leaving apart for the moment a verdict of guilty as charged, would be an appropriate verdict. It becomes, thereupon, necessary to return to those statutory provisions of which I earlier spoke. 29 The three sections of the Mental Health (Criminal Procedure) Act 1990 read as follows: and I propose to take a few moments to read them so that those who are in Court trying to follow what I am saying, but who are not trained lawyers, will at least have some assistance to that end. 30 Section 37 provides as follows: "37. If, on the trial of a person charged with an offence, a question is raised as to whether the person was, at the time of commission of the offence, mentally ill as referred to in section 38, the Court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings and must include in its explanation: (a) a reference to the existence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act 1990; and (b) a reference to the relevant functions of that Tribunal with respect to forensic patients within the meaning of that Act, including a reference to the requirements of that Act that the Tribunal may make a recommendation for the release of a person detained in accordance with section 39 only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person's release." 31 Section 38 is the section that provides in a substantive way for the return of a special verdict of not guilty by reason of mental illness. The section so provides in the following terms: "38. If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 32 It is convenient to pause and to draw attention to one or two matters particular to section 38. It will be observed that a special verdict of not guilty cannot be returned in terms of section 38 unless there is a foundational finding, properly made, that the accused person was "mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done...". 33 There is no definition in the Mental Health (Criminal Procedure) Act 1990 of mental illness, but there is an extensive definition of that term in the Mental Health Act 1990. I am satisfied that the Mental Health (Criminal Procedure) Act 1990 should be understood, so far as concerns any need to define the notion of "mental illness", as having incorporated into it the definition of "mental illness" which is to be found in the Mental Health Act 1990. 34 That definition is, of course, of critical importance for present purposes, and it provides as follows: "Mental illness means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)." 35 The other aspect of section 38, to which attention might be drawn at once is this: that mental illness having been established in fact, the jury, if there is one, "must" return the special verdict that the accused is not guilty by reason of mental illness. That is to say, the tribunal of fact at a trial in which mental illness has been found established, does not have a choice in the matter of verdict. Mental illness in the relevant sense having been properly proved, there must be a special verdict of the kind for which provision is made in section 38. 36 It is convenient to round out the present discussion, by drawing attention to the terms of section 39 which are as follows: "39. If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court must order that the person be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law." 37 Were this trial proceeding with a jury it would be necessary for me, as the presiding Judge, to charge the jury carefully and precisely as to the relevant law concerning the special defence of mental illness, and concerning the requirements of the law as to the returning in a proper case of a special verdict of not guilty by reason of mental illness. 38 As I am in this trial both the judge of the law and in the absence of a jury, the judge of the facts, it is necessary that I, as it were, charge myself as I would charge a jury in accordance with the various matters of law and of fact that arise relevantly by reason of sections 37, 38 and 39, as I have earlier quoted and discussed them. 39 Turning first to section 37, I take into account the exposition of the relevant matters of law and of fact that were canvassed by Newman J in Reg v Gavranovic [1999] NSWSC 205. It appears from his Honour's judgment in that case that, in fact, oral evidence was called before his Honour from Professor Robert Hayes, the President of the Mental Health Review Tribunal. It would seem that that evidence was directed to a description of the functions of the Tribunal once a person had been found not guilty on the ground of mental illness. It has not been suggested to me in the context of this trial, and I can see for myself no basis otherwise for concluding, that the essence of what is set out in Newman J's exposition would not be equally relevant in the context of the present particular case. Accordingly, I adopt it gratefully and remind myself, as follows, of the substance of his Honour's discussion: "Following the making of that order (that is to say an order pursuant to section 39) he comes under the supervision of the Mental Health Review Tribunal which is headed by Professor Hayes, to whose evidence I have already referred. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. The review could take more than 14 days to complete but at the conclusion it would make a recommendation to the Minister for Health. That recommendation could 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 was 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-in-Council. The Governor-in-Council would 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 could only make an order for release where the Tribunal itself had recommended release. After that first hearing of the Mental Health Tribunal, assuming no recommendation for release is then made, it can at any later time and must at least once every six months, review the case of the accused. 52 After hearing the evidence at a 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. I stress that 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 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. 53 If the accused was at any time released back into the public on conditions and it happened that a breach of those conditions took place, then the Governor-in-Council may order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person is 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 conditions would lead to him being apprehended and detained once again. 54 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 patient or 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. 55 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 or a forensic patient in his position, can never be released unless the Mental Health Tribunal, comprising persons with special qualifications, was satisfied, on the evidence available to it, that his safety and the safety of any member of the public would not be seriously endangered." 40 I apprehend that says all that needs to be said in connection with the particular duties imposed upon this Court by section 37. 41 It is necessary to turn in a more particular sense to section 38. I take it to be well settled law that it is for the accused to establish, on the balance of probabilities, what I will describe as the special defence of mental illness. That is to say, it is for the accused to establish on the balance of probabilities that his case, fairly assessed, comes within one or more of the particular meanings of the definition of "mental illness" which I have earlier extracted from the Mental Health Act 1990. 42 It seems to me that the first point of reference in considering whether or not the accused has discharged that particular burden is the accused's electronically recorded record of interview, to which I have earlier referred, and from which I have earlier quoted. It is a lengthy document and, obviously, it is not either possible or necessary to reproduce it in full. 43 I think that anybody who reads the document with a fair and open mind; and, certainly, anybody who reads the document simultaneously with watching the images recorded on the video of the interview as it progressed; could not but be struck by the abnormality, if I may use that as a word of normal English and not of professional expertise, of what is described and disclosed in that material. 44 It seems to be the case that the accused has in his own personal background, experiences of which it is sufficient to say that they have had a deeply disturbing and destabilising influence upon him. A normal assessment by a normal sensible jury of what appears in the interview material would, surely, suggest precisely the kind of delusional and associated impairments which are the substance of the definition of "mental illness" in the Mental Health Act 1990. 45 That material in the recorded interview needs to be supplemented by various other pieces of evidence to be found in documentary form in Exhibit B. The first of them in time is a short but interesting report from Dr Szynal, who has furnished a report which is document 6 in Exhibit B. 46 Dr Szynal was working the early morning shift on 25 December 2000 in the Emergency Department of Westmead Hospital. The accused was admitted by ambulance, and in police custody, to that Emergency Department, and was examined by Dr Szynal at about 8.15am on the morning of 25 December 2000. 47 He was diagnosed as having lacerations to both wrists, which were said to be uncomplicated and to have been dealt with adequately by suture under local anaesthetic; secondly, to have been involved in a serious incident of self-harm; and thirdly, to have what is described by Dr Szynal as "an acute psychosis" 48 The incident of self-harm, to which the doctor refers, is described as follows by the accused himself, - see the answer to question 171 in the record of interview: "...she just lost consciousness and I just like sat up, you know, thought for a bit you know, what did I do. I tried to wake her up, I tried to revive her again, beat on her heart. I was just scared. I left her. I went inside, I cut my wrists, I popped the pills, I jumped in the bathtub and I just wanted to die, that's it. Then I woke up two days later." 49 When the accused was first found by the investigating police he was, in fact, in the bath fully clothed and obviously affected by some substance, and having slashed both his wrists. 50 The accused was passed on from Dr Szynal to Dr Achan who described him as follows: "He appeared as a young, fit, muscular man seen sitting on the hospital bed in shackles with bandaged forearms. He appeared to be easily distractable and was seen to be having occasional twitches to the left side of his face. He took a long time in answering questions which were brief. At times he did not respond at all. He, though denying any perceptual disturbances, was noted to be staring intensely. At times he was aware that he was unwell and was willing to comply with directions. On the basis of the history of his mental state (that is the accused) a provisional diagnosis of an acute psychotic illness was made which needed further investigations of diagnostic clarity. He (the accused) was made an involuntary patient under the Mental Health Act and then transferred to Cumberland Hospital for further patient/psychiatric management." 51 To all of that material there has to be added a report from Dr Benjamin dated 26 June 2001. Both Dr Benjamin and Dr Neilssen are forensic psychiatrists of high standing. 52 Dr Benjamin makes a lengthy diagnosis and assessment which includes a psychiatric diagnosis expressed as follows: "He (the accused) most likely suffered with amphetamine-induced psychotic disorder with delusion on the night of 24 December 2000. It is likely that the long period of abstinence from stimulant substances rendered him over-sensitive to small amounts of Ecstasy and resulted in the development of the psychotic symptoms described on 24 December 2000 prior to committing the offence. He (the accused) most likely suffered with amphetamine intoxication delirium following his ingestion of a large amount of Ecstasy tablets. This was evident in the disturbance of his consciousness, concentration, attention and memory as described in his hospital admission notes, psychiatric assessment and schedule 2 form of 25 December 2000. Over the past 12 months or so he most likely suffered with substance induced depressive disorder following his stopping using stimulant drugs. This is evident in his social withdrawal, poor interest, lack of energy, thoughts of guilt and lack of interest." 53 The essence of the summary, the opinion and the conclusions offered by Dr Benjamin are caught in the following paragraphs that conclude the doctor's report. "6. It is most likely that the offender acted under psychotic delusion when he held the victim in a headlock and pressed against her neck causing her death. 7. While acting on a delusional belief it would be most unlikely that the offender could have the capacity to form a rational intent or determination to kill the victim or realise that what he was doing was wrong. ... 9. He (the accused) remains mentally ill. He is perplexed, depressed and confused. He is likely to benefit from specific psychiatric treatment in a mental health facility... 10. His treatment should continue for at least one year and he should be reviewed after that for further psychiatric assessment." 54 Dr Neilssen's report is much to the same effect. He expressed a clear and careful opinion, the relevant portions of which are as follows: "I believe (the accused) was mentally ill at the time of the offence. He reported a defect of reasoning in the form of a delusion that (the victim) was a child molester, and that God had placed her in his path for a reason and wanted him to kill her. At the time of the offence he was deprived of his knowledge that his actions were wrong, as he was reluctantly following what he thought were God's wishes. He (the accused) also had an abnormality of mind at the time of the event that had a substantial effect on his perception, judgment and on his capacity for self control, that was due to an underlying condition. His abnormality of mind was exacerbated by having taken amphetamines, but was not only due to intoxication. He (the accused) was assessed to be fit for trial. However, there were signs of mental illness at interview and his concentration and ability to think in a logical way were assessed as likely to respond to treatment with antipsychotic medication. I believe he has a chronic mental illness, and will probably eventually develop a more obvious and disabling form of the illness, for which he requires long term treatment." 55 I am comfortably satisfied, on the balance of probabilities, that a fair assessment overall of the entirety of the evidence, to which I have referred, brings the case of the accused within, and well within, the defined categories of mental illness for the purpose, in particular, of section 38 of the Mental Health (Criminal Procedure) Act 1990. 56 That being the case, I have, by reason of the terms of section 38 as I have earlier explained them, no option other than to return, as I do, a special verdict that the accused is not guilty by reason of mental illness. 57 That does not entail, of course, that the accused becomes thereupon entitled to a simple acquittal, and to immediate and unconditional freedom, as would normally be the case in the face of a normal jury verdict of not guilty. 58 In the accused's case, it will be necessary for the Court to order his detention in terms of section 39 of the Mental Health (Criminal Procedure) Act. 59 I am satisfied that the terms of section 39 require and would be satisfied by orders as follows: The accused, having been found not guilty by reason of mental illness, is to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre, or such other place as should be determined by the Mental Health Review Tribunal until released by due process of law. I return a verdict, and I make orders accordingly. ********** Last Modified: 03/11/2002 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.