New South Wales Supreme Court CITATION : REGINA v MASSEI [2005] NSWSC 695 HEARING DATE(S) : 13/05/05, 24/06/05, 13/07/05 JUDGMENT DATE : 13 July 2005 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 DECISION : Motion refused; Conviction for the crime of manslaughter confirmed. CATCHWORDS : Murder - plea to manslaughter accepted - whether Crown may withdraw acceptance - fresh evidence that accused mentally ill - whether acquittal following trial in interests of justice - Crown application refused Crimes Act 1900 s23A LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 ss38, 39 BWM 1991 A Crim R 260 Maxwell v The Queen 1995-1996 184 CLR 501 CASES CITED : R v M'Naghten (1843) 8 ER 718 R v Porter (1926) 55 CLR 182 Regina PARTIES : v Marcelo Dario MASSEI FILE NUMBER(S) : SC 2003/97 Mr J P Kiely SC (Crown) COUNSEL : Mr W C Terracini SC (Offender) Mr Ian Knight (Crown) SOLICITORS : Uther Webster & Evans (Offender) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST ADAMS J Wednesday 13 July 2005 70079/03 REGINA v Marcelo Dario MASSEI JUDGMENT 1 HIS HONOUR: On 19 July 2004 the accused, Marcelo Dario Massei, was arraigned upon an indictment charging him with the murder of Alejandra Rosa Massei. His plea was not guilty of murder but guilty of manslaughter. The Crown prosecutor accepted that plea of manslaughter in satisfaction of the indictment. I then formally entered a conviction of manslaughter. The prosecutor tendered a large volume of material and indicated that it was intended to call, when the sentence hearing resumed, a psychiatrist, Dr John Ellard, to give evidence about matters not disclosed in his report. The prosecutor said that the plea to manslaughter was accepted by the Crown – "On the basis of [the accused's] not being able to distinguish from right to wrong, lacking the capacity to distinguish right from wrong at that time." 2 It was submitted by the prosecutor that this did not amount to a complete defence in the circumstances of this case although "it is close". The defence of mental illness, as expressed in R v M'Naghten (1843) 8 ER 718 arises where "the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong" (see also R v Porter (1926) 55 CLR 182 at 188). On the face of it, it is difficult to see how, if the accused lacked the capacity to distinguish right from wrong, the defence did not arise. In an area of the law bedevilled by fine distinctions, I must confess that the nuance articulated by the prosecutor's qualification escapes me. At all events, the prosecutor foreshadowed (as I understood him) that Dr Ellard would give evidence explaining the distinction sought to be made. The prosecutor expressly indicated that the Crown accepted that the accused suffered substantial impairment by way of an abnormality of his mind under s23A of the Crimes Act 1900. Mr Terracini SC, for the accused, confirmed that the plea of guilty to manslaughter was proffered upon the grounds that the accused's criminal acts, otherwise amounting to murder, should result in a conviction of manslaughter by virtue of s23A. 3 Mr Terracini indicated that there was additional medical evidence which he wished to present on the accused's behalf in due course but that he was not presently in a position to do so. Accordingly, the further hearing of the sentence proceedings was adjourned. 4 For various sufficient reasons the hearing was substantially delayed. In due course, the matter came back before me on 13 May 2005. The Crown called Dr Ellard, who gave the following evidence – "Q. Doctor, just one or two questions, if I may? Insofar as your assessment of the prisoner, did you form any opinion as to whether he understood the nature and quality of his act as at the time he killed his wife? A. Well, I believed that he knew that he was killing her but he was psychotic at the time. Q. When you say "psychotic", doctor, would you tell us, please what you mean by that, in relation to this man? A. In ordinary English it means "mad", to be clear. It means that his thinking was grossly deranged, he hallucinated, and he was thinking along ways which he would not normally think along. Q. But so far as he understood, do you say then that he did in fact understand what he was doing when he was in fact killing her? A. Yes. HIS HONOUR: Q. And did he appreciate that it was wrong? A. I think the best answer, your Honour, is no, because in his delusional context it was the right and correct thing to do for both of them. KIELY: Q. When you have just answered that to his Honour, as at the time when he was killing his wife - withdrawn knowing something is wrong can be either wrong legally or morally, can't it? A. Yes. But may I say that there are many moralities. What is morally right in one reality is not in another. A morality is a system of approvals. HIS HONOUR: Q. Yes, I think in the present sense we are concerned with, though not entirely, but counsel means wrong in the sense that most members of the society would disapprove of what he did and would regard it as reprehensible? A. I understand that, your Honour. Most members. Q. Yes, most members? A. Yes. Q. Did he appreciate that at the time, do you think, or not? A. I don't think he was thinking clearly. I mean, if he had sat down and thought it out he may have come to that conclusion, but at that time he was quite acutely psychotic, hallucinating, distressed. His mind was not working logically. KIELY: Q. As at the time-- HIS HONOUR: Q. I am sorry, there is the distinction made by counsel also. Do you think at the time he realised what he was doing was illegal or unlawful? A. By M'Naghten? Q. Of course? A. I have no idea of that. I have no idea in legal terms, only medical. I doubt he knew it. Q. It rather follows the things you said, there was no real reflection at all? A. I think that is a matter for lawyers, not for me. Q. No, but we were asking what he was thinking or capable of thinking at the time. I suppose we could ask you if he was capable of thinking about Pythagoras's theorem or perhaps, you know, whether Shakespeare was the author of Shakespeare, but those are not matters either for mathematicians or for a literary historians. I am not being facetious here, but taking the point you make, but nevertheless it is a psychological or psychiatric question, whether you think he understood at the time or, as capable of understanding at that precise time, that he was acting contrary to the law? A. I think the best answer, your Honour, is no; and perhaps I could illustrate it this way? A man being chased by a lion would be profoundly anxious, which is not a psychiatric disorder in that context, but his capacity to give rational answers to ordinary questions would be grossly impaired. I think it is like that. HIS HONOUR: I see. Thank you. KIELY: Q. I think that answer was – it was impaired. Rather – is this the situation, his capacity to understand whether it was wrong or not was impaired but not completely absent? A. In psychiatry and in general medicine we rarely encounter categories. Things tend to be dimensional and that, I think, the answer I gave his Honour was the best answer I can give, that it was grossly impaired." 5 Dr Ellard, not surprisingly, did not wish to answer questions asked by Mr Terracini that were posed in what I might usefully call M'Naghten terms, simply repeating his earlier evidence that there was gross impairment of the accused's capacity to understand whether what he was doing was right or wrong. In an attempt to clarify the Doctor's opinion I asked the following questions – "HIS HONOUR: Q. Doctor, can you say this, he was acting, as I think you said, under the impulse - that word is perhaps not the best. A. All right. Q. But under the – at a time when voices were real and when he was responding, obviously, to his own emotions in the situation, but also to these voices which he believed he should obey, or ought obey? A. Substantially your Honour, yes. Q. That situation was plainly a complex one? A. Yes, your Honour. Q. He believed, however, as you see the history, that (in an attempt at some kind of neutral language) he was acting under an imperative that what he did he must do? A. Yes, your Honour." 6 It seemed to me that Dr Ellard's evidence fairly and squarely raised the issue of whether the accused was in fact guilty of any criminal offence and, in my view, properly understood, it must have led to the conclusion that he was not guilty. 7 The Crown prosecutor submitted that the appropriate course was that I should reject the plea and permit the Crown to present a fresh indictment to enable the question whether there should be a special verdict under s38 of the Mental Health (Criminal Procedure) Act 1990 (the Act). Both Crown and defence agreed that this could be a matter tried by judge alone and that there was no reason why I should not conduct that trial. Mr Terracini submitted that, at all events, the correct outcome of such a trial would be a conviction of manslaughter. 8 The crucial question, as it then seemed, was whether the Court should permit the accused to continue with his plea of guilty to manslaughter. Whether, the conviction having been entered, this matter could be reconsidered was not the subject of submissions, the argument proceeding upon the assumption that the Court would, if the circumstances so required, refuse to accept the plea. Mr Terracini indicated that he wished to obtain a further report from Dr Bruce Westmore, whose opinion that the accused had a section 23A defence available to him was the basis on which he relied to justify the accused's plea. Of course, Dr Westmore had not, at that time, had the opportunity to consider Dr Ellard's opinion. 9 The proceedings then came before me once more on 8 July 2005. On that date, the report of Dr Westmore of 28 June 2005 was tendered. Dr Westmore agreed with Dr Ellard's opinion that the accused was suffering from a major depressive illness with mood congruent psychotic features. However, although Dr Westmore noted the presence of auditory experiences which he felt may have been hallucinations, he could not establish a link between a possible psychotic illness and the offending behaviour. He therefore considered that the accused did not have available to him the defence of mental illness. Dr Westmore briefly explained this opinion in the following way – "When I originally assessed Mr Massei I was more impressed with the strength of the depressive symptoms than the auditory experiences in terms of trying to understand any relationship between his mental illness and the offending behaviour. Sometimes patients who are depressed develop morbid thoughts which they may sometimes express as being of an auditory type, they usually describe that experience as being "their conscience". On reflection, however, I would agree that it is more likely that the experiences described by Mr Massei were in fact auditory hallucinations of a psychotic quality. I am not disputing the diagnosis made by Dr Ellard and, indeed, in a previous report I thought the diagnosis he made, that is a major depressive illness with psychotic symptoms, was probably the correct one. I would also agree that it could be argued that a mental illness defence is applicable in this case. However, I restate my view that I felt at the time I originally examined him that the predominant condition which led him to kill his partner was his depression. I do not think, on balance, that he was delusionally driven to kill his wife, although the content of his hallucinations was of a morbid type and can be linked to his actions." 10 Mr Terracini also tendered on the accused's behalf the report of Dr Stephen Allnutt of 4 July 2005. It is not necessary to set out that report here but the following concluding paragraphs should be noted – "While his depression could have contributed to a "defect reason", I am unable to conclude that [th]is was so severe as to deprive him of the capacity to know the nature and quality of his actions. He was manifesting adequate reasoning capacity in the hours before and after the alleged offence irrespective of ongoing depressive symptoms. While it is possible that hallucinatory experiences can deprive a person of such capacities, in this case, his hallucinatory experiences were on the mild side of the spectrum of severity. In addition, the hallucinatory experiences were derived to a degree from sleep (a normal phenomenon). I am unable to conclude that his "disease of the mind" was severe enough to cause such a serious "defect of reason". Thus I believe it unlikely that the court would conclude a mental illness defence. In my opinion at the time he committed the alleged offence he was experiencing strong suicidal and homicidal urges derived from his depressive disorder, compounded by his mild hallucinatory experiences at a time of night when people are vulnerable to their emotions. I am of the view that his "abnormality of mind" was of a severity that his capacity to fully understand his actions and judge whether they were right or wrong was impaired. It is also likely that he experienced overwhelming emotions and thus his capacity to control his actions was significantly impaired. I believe it is likely that the court will accept a defence of substantial impairment in this case." 11 Having regard to the material now presented on the accused's behalf, I have no doubt that, subject to a matter shortly to be discussed, it is proper for me to accept the accused's plea of guilty to the charge of manslaughter. The complicating feature, however, is that the Crown has moved the Court for orders permitting the Crown to withdraw acceptance of the plea to manslaughter in discharge of the indictment, permitting the presentment of a fresh indictment against the accused for murder and, on the assumption that a plea of not guilty is entered to the indictment, list the matter for trial. It is agreed by both parties that, if I grant these orders, the trial will be judged by judge alone and there would be no objection to my presiding at that proceeding. 12 In support of the Motion the Crown prosecutor tendered a further report from Dr Ellard in which the following questions were answered – "(a) Did the accused know what he was doing when he was killing [the deceased] despite the voices? He did know what he was doing. The voices were the product of the cognitive distortions caused by his very severe depression and the overwhelming need to find a solution to the total disaster of losing his wife. (b) Did he know it was wrong from the standpoint of the ordinary person in killing his wife and taking her to heaven with him? If firmly interrogated at the time, the answer may have been "yes", but overwhelming emotion will remove the capacity for calm reflection even in the absence of psychosis. Try to get considered answers from a man being chased by a lion. (c) Was he able to make a judgment with calmness in relation to the moral quality of his act? No. His judgment was grossly disturbed by the depth of his depression and by the consequent breakdown in his ability to see reality clearly – as witness the hallucinatory voices were not perceived as unreal. They became command hallucinations." 13 Dr Ellard added: "If compelled to answer the question, I would say that at the material time he fell within section 38 of the Mental Health (Criminal Procedure) Act 1900." 14 The Crown prosecutor indicated that, if the Motion was granted, he anticipated that the Crown case would be brief, that it would comprise the statements already tendered on the plea (which, Mr Terracini said, would not be objected to) and the calling of Dr Ellard. The substance of the Crown case would be, the prosecutor expected, that the Court would be asked to acquit the accused on the ground of mental illness in reliance on Dr Ellard's expected evidence in preference to the expected evidence of Dr Westmore and Dr Allnutt. This prediction as to the course of the trial must be accepted with some caution since the accused might or might not call the latter two experts and, for that matter, might or might not give evidence himself or call evidence from some other witness. However, I think that the Crown prosecutor's submission is a fair prediction of the likely course of the trial he seeks. 15 This underlines the most unusual nature of the Crown's application: in short, the Crown seeks a trial for the purpose of having the accused acquitted (albeit on the ground of mental illness) and to withdraw its acceptance to a plea of guilty to the charge of manslaughter which would result in a conviction for manslaughter. 16 The fundamental ground for the unusual course contended for by the Crown is that the question whether the accused was indeed mentally ill within the meaning of s38 of the Act at the relevant time is an important one which should be determined by a court following a trial. The prosecutor contended that the opinion of Dr Ellard might well – indeed ought to – prevail, with the consequence that the accused would not be convicted of an offence which in law he had not committed. 17 Although not spelt out, it is implicit in the Crown's case that the interests of justice require that the accused be subject to the regime described by the Act and the Mental Health Act 1990 for what the latter Act calls "forensic patients". However, no evidence has been presented which would justify the conclusion that the interests of justice would be best served by preferring the "forensic patient" disposition as distinct from leaving the accused, on his release from custody, to be dealt with as occasion requires under the provisions of the Mental Health Act dealing with mentally ill or mentally disturbed persons. In fairness I should, however, mention that the prosecutor pointed to the powers given to the Court under s39 of the Act and foreshadowed a submission that the Court might well see it proper to exercise the power given by that section to release the accused from custody subject to appropriate conditions, a regime likely to be very much less oppressive than that which would apply were he to be treated as a forensic patient. 18 Part of the problem in dealing with the Crown's motion that I should grant it leave to withdraw acceptance of the accused's plea is that I have formally entered a conviction of guilty of the crime of manslaughter. The acceptance of that plea connoted, to my mind, a final determination of guilt by the Court. It was in order to avoid debate about the status of the plea that I entered that conviction. At the same time, it may well be, having regard to what was said in Maxwell v The Queen 1995-1996 184 CLR 501 that, until he has been sentenced, the accused has not been convicted or unqualifiedly convicted. 19 If the only evidence before the Court were that the accused was indeed not guilty of the crime to which he has pleaded guilty upon the ground that he was mentally ill at the relevant time, it might be – though, fortunately, I do not have to determine this point – that the Court would not permit entry of the plea as comprising an abuse of process. That is not the case here. The evidence which I have briefly summarised above indicates there is a difference of medical opinion concerning the accused's mental capacity, (although it may be that, upon close examination, that the difference may be little more than a nuance). There has been a substantial delay – as to which no blame is, or should be, assigned – since the plea was accepted, during which time the accused has been in prison and treated as an ordinary remand prisoner. The Crown does not contend that the accused committed a more serious crime than that to which he has pleaded (as was the case in Maxwell and BWM 1991 A Crim R 260). 20 In the end, I am unpersuaded that the interests of justice require the granting of leave as sought by the Crown. Accordingly, the motion is refused and I confirm the accused's conviction for the crime of manslaughter. ********** 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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