R v DELLA-TORRE [2005] NSWSC 703

New South Wales Supreme Court

CITATION : R v DELLA-TORRE [2005] NSWSC 703

HEARING DATE(S) : 20 & 29 June 2005

JUDGMENT DATE : 29 June 2005

JUDGMENT OF : Hulme J at 1

DECISION : The Accused is not guilty on the ground of mental illness.

Regina PARTIES : Carl Anthony Della-Torre

FILE NUMBER(S) : SC 70036/03

Crown: L Lungo COUNSEL : Accused: P Zahra SC

Crown: S Kavanagh SOLICITORS : Accused: Marsdens Law Group

LOWER COURT JURISDICTION :

- 23 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J 29 June 2005

70036/03 REGINA v Carl Anthony DELLA-TORRE JUDGMENT 1 HULME J: On 18 October 2002, Vally Della-Torre was killed. On 19 October 2002 Carl Anthony Della-Torre (hereinafter referred to as the Accused) was arrested by police and charged with her murder. 2 On 26 March 2004 Buddin J concluded that the Accused was then unfit to be tried for the offence of murder and, pursuant to s14 of the Mental Health (Criminal Procedure) Act 1900 referred the Accused to the Mental Health Review Tribunal. Earlier, on 23 February 2004 his Honour had found that the Accused was fit to be tried but further evidence was then provided in the form of a report from Dr Westmore of 25 February 2004 and one from Dr Allnutt of 27 February 2004. Both of these persons are experienced forensic psychiatrists and each was of the view that the Accused was unfit to be tried. 3 On 18 October 2004 the Attorney General made a direction pursuant to s18 of the Mental Health (Criminal Procedure) Act directing that a special hearing be conducted in respect of the offence with which the Accused was charged. It is that special hearing which is the inspiration for these reasons. 4 On 16 June last the Accused made an election under s132 of the Criminal Procedure Act that he be tried by a Judge alone, a course to which the Director of Public Prosecution consented. The possibility of there being some inconsistency between the conclusion that he was unfit to be tried and having a capacity to make such an election occurred to the Accused's legal advisors and evidence in the form of an Affidavit by the Accused's Solicitor and a report of Dr Westmore of 10 June 2005 obtained. I am satisfied that the Accused's unfitness to be tried and the factors leading to that conclusion did not and do not lead to the view that he lacked the capacity to make the election. Both parties acquiesced in this view and in the circumstances I do not think it necessary to detail the evidence which led me to it. 5 Before proceeding further, I should advert to the fact that s21(4) of the Mental Health (Criminal Procedure) Act provides:- "At the commencement of a special hearing, the Court must explain to the Jury the fact that the Accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts." 6 With a view to complying with that sub-section notwithstanding the absence of a jury, after the Crown had opened its case to me but before any evidence bearing on the Accused's guilt was admitted, I read to myself paragraph 40 of the report of the decision of the High Court in Subramaniam v R [2004] HCA 51. Both counsel accepted that this amounted to sufficient compliance with the sub-section. 7 It is also opportune at this stage to acknowledge that, putting aside any "defences" which may arise on the evidence, murder occurs when one person, intending to kill or inflict grievous bodily harm on another, carries out deliberately an act which in fact causes the death of that other person. Before a person accused can be convicted, the Crown must prove the guilt of that person beyond reasonable doubt. 8 That part of the Crown case as dealt with the issue of whether the Accused killed the deceased was evidenced by documents which were tendered without objection. The documents satisfy me that he did, that the act or acts which had this result were deliberate and with intent to kill the deceased. In a little more detail the documents show the following. The deceased lived at 23 Welby Street, Eastwood with her son, Charles. The Accused is the son of Charles. Over the years he has been involved with drugs and theft and has been in gaol on a number of occasions. Some years ago the Accused lived in a flat under the deceased's house and later, the deceased would to some extent help the Accused when he was released from gaol by washing his clothes. She would not infrequently find him asleep on her verandah without any permission to be there. When the Accused had been sent to gaol some 5 months previously, he had asked his father to pick up his clothes from where he had been living. His father did so, storing them under the deceased's house. On 17 October, the Accused attended at the deceased's house, had a shower, changed his clothes and had something to eat. He had been recently released from gaol. Some time between about 6pm and 6.30pm on 18 October 2002, the deceased returned to her home after having dinner with a daughter Emma Butcher who lived next door. At around 8.30pm the deceased had a phone conversation with a friend, Ms Lumbroso. During the course of the call Ms Lumbroso heard or said the following (not necessarily by way of continuous conversation):- Deceased: "Oh, it's you Carl. You know you can't stay here. You must go." Deceased: "I haven't got any money. What did you do with your government money?" Deceased: "Oh you lost your card. Male voice: "Nonna, make me a cup of tea and give me a blanket and a cushion. I'll sleep on the verandah." Deceased: "I've got (to) get the blanket and a cushion. He's going to sleep on the verandah." Lumbroso: "Don't let him in. Give him the blanket and the cushion. Don't let him in and let him sleep on the verandah." Deceased: "You know I don't like that. I'll call you tomorrow. Goodbye." ("Nonna" is the Italian word for Grandma and was a term used by the deceased's grandchildren including the Accused.) Shortly after 9pm, Charles Della-Torre received a phone call from the deceased. At some stage the Accused spoke on the deceased's phone and the conversation included the following. The deceased said that the Accused was there and wanted to stay the night. She indicated that she did not wish that. Charles Della-Torre then spoke to the Accused. The latter said that he had nowhere to stay, repeating this in strong terms when his father told him that he could not stay. When his father responded that that was the Accused's problem, he being 31 years of age, the Accused said that it was his father's "fuckin' problem". There was then further conversation between the deceased and her son and the latter again spoke to the Accused, reiterating that the Accused had to go. The Accused announced that he was staying and told his father that he had better not return to the house because the Accused would kill him. Charles Della-Torre reiterated that the Accused was not to stay, said that he would call the police and the Accused then slammed the phone down. Charles Della-Torre then rang his sister Emma Butcher, asked her to ring the police and then tell the Accused she had done so and he could not stay. On receipt of that phone call Mr Richard Butcher ran to the deceased's house and found her lying in the entrance hall of her house, having bled profusely and either badly injured or dead. Shortly afterwards ambulances arrived by which stage the deceased was dead. Injuries suffered by her included:- A deep complex roughly horizontal incised wound extending approximately 275mm from near one ear lobe to about 55mm from the other transecting both common carotid arteries and perforating the walls of both jugular veins. Four other incised wounds to the front of the face and one ear, fourteen areas of bruising or laceration or abrasion to the head and neck, three injuries to the trunk, one of them an incised wound and eight areas of bruising and laceration to the upper limbs. On the morning of the following day, police found embedded in the front garden of the deceased's house two knives. During police examination of the deceased's house fairly distinctive shoe-prints either in blood, or which had imposed blood on the floor, were seen. The upper cutlery drawer under the sink was open, that drawer containing an assortment of knives. In the sink there were two empty coffee cups The pattern of those prints matched gym boots the Accused acknowledged were his when seen by police officers at about 4.55 am on 19 October at the Castle Hill Police Station The left one of those gym boots was stained with blood on the left and right upper ankle areas and on the sole. The right one of the pair showed blood staining on the sole and concentrated staining on the sides. There was blood staining on the socks. Presumptive testing for blood on the tracksuit pants and jumper which the Accused would seem to have been was wearing when arrested also indicated the presence of blood. Testing indicated very strongly that the deceased's DNA was on the Accused's right gym boot and a jumper said to be his. (In the material tendered, the Accused's ownership of the jumper is something left for inference on evidence which, at its highest, is very thin. However, in the way the case was conducted, the evidence is, I think sufficient. DNA testing of a swab from the handle of the open kitchen drawer showed a profile the same as that of the Accused and which could be expected to be found in 1 in 1500 of the population. DNA testing of one of the coffee cups found in the house showed a profile which matched that of the Accused and which is to be expected in fewer than 1 in 10 billion of the population. A DNA profile from a female and which could have been the deceased was recovered from the other coffee cup. 9 In the early morning of 19 October the Accused participated in an ERISP. During the course of it, he denied being at 23 Welby Street on the night of his grandmother's death and denied having any involvement in her death. It should also be mentioned that, according to Mr Charles Della-Torre, the Accused seemed to respect the deceased, even when he was having a hard time in consequence of drug abuse and jail sentences. Nevertheless, I have reached the conclusion as to the Accused's involvement which I have set out above. 10 The matters which were in serious contest during the hearing before me involved the Accused's mental state at the time of assault on his grandmother. It was contended on the Accused's behalf that he was legally insane at the time or, alternatively, that he was suffering from substantial impairment by abnormality of mind. The onus of establishing these defences is on the Accused but proof on the balance of probabilities is all that is required. 11 More precisely, the issues which arise under these defences are as follows. In the case of mental illness, the question is "has the Accused shown that, as a result of a defect of reason from a disease of the mind, he did not appreciate the nature and quality of his acts which led to the death of his grandmother or did not know that those acts were wrong". The requirement that did not know that those acts were wrong would be established if he could not think rationally of the reasons which, to ordinary people, would make his actions right or wrong or if he could not reason about the matter with a moderate degree of sense and composure – see R v Porter (1933) 55 CLR 182; R v Sodeman (1943) 55 CLR 192 12 So far as the issue of mental illness is concerned, I should acknowledge the terms of s37 of the Mental Health (Criminal Procedure) Act and record that I have had regard to the relevant provisions of the Mental Health Act. 13 The defence of substantial impairment by abnormality of mind exists pursuant to s23A of the Crimes Act which, so far as is presently relevant provides:- (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying conditions, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 14 The evidence relevant to these defences comes principally from 3 psychiatrists but before turning to their evidence there is some other to which I should refer. 15 In addition to saying that the Accused seemed to respect the deceased, even when he was having a hard time in consequence of drug abuse and jail sentences, the Accused's father said that when being interviewed by the police that he could not envisage the Accused hurting his grandmother and seemed to respect her in every way. 16 The circumstances leading to the Accused's arrest should also be mentioned. At about 11.10pm on 18 October he threw a brick at and striking a car passing along Old Northern Road, Castle Hill. The car stopped and one of the occupants alighted, approached the Accused and asked why the Accused did that. The Accused replied, "Give me money. Given me money." before walking off. Although followed – and there is no suggestion the following was covert - the Accused then went to a Mobil Service Station where he attempted to obtain a cup of coffee, making nothing that could be called an attempt to escape. It was at the Service Station that he was arrested. 17 To a significant degree all 3 psychiatrists relied on the Accused's clinical history. That history included the following:- 20.12.00 A mental health nurse recorded that the accused was allegedly hearing voices. Dr Westmore observed that it was also noted as this time the accused was detoxing. 19.01.02 A psychiatric nurse thought he might have significant depression. Dr Allnutt records that on this occasion the accused was manifesting a normal mood and affect, denying all perceptual disturbances. One of Dr Westmore's reports indicates that the accused was in the Langton Clinic at about this time. 14.04.02 The accused had contact with the Darlinghurst and Ashfield Mental Health teams. 10.02 A psychiatric Registrar, Dr Cassidy, diagnosed the accused as suffering from, inter alia, substance use, ante-social personality disorder and possibly major depression. 14.11.02 Prison classification officers thought the accused might be psychotic but Dr Walker detected no psychosis on examination and the accused denied psychotic symptoms. 29.04.03 Dr Walker noted that psychosis was unlikely. 17.06.03 On examination by Dr Walker the accused was noted to be delusional and thought disordered and that he thought he was Satan. Dr Walker noted the accused was an unreliable historian and clearly psychotic. He was placed on anti-psychotic medication. 27.06.03 Following unusual and probably bizarre behaviour the accused was treated involuntarily, he claimed his name was Satan and he was diagnosed with a psychotic disorder. He was treated with anti-psychotic medications. 07.07.03 The accused was noted lying on the floor swearing at the top of his voice and apparently responding to non-apparent stimuli. 07.03 The accused seemed to be interacting reasonably well with others and did not manifest obvious psychotic phenomena at interview. 08.03 The accused's mental state and behaviours had settled.