Regina v Noritaka Kawasaki [2005] NSWSC 1298

New South Wales Supreme Court

CITATION : Regina v Noritaka Kawasaki [2005] NSWSC 1298

HEARING DATE(S) : 9 December 2005, 14 December 2005

JUDGMENT DATE : 14 December 2005

JUDGMENT OF : Barr J at 1

DECISION : Accused found not guilty of either of the charges by reason of mental illness. Accused to 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.

PARTIES : Regina, Noritaka Kawasaki

FILE NUMBER(S) : SC 2005/1748

P Zahra SC COUNSEL : P Power SC

Legal Aid Commission of New South Wales SOLICITORS : S Kavanagh

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

14 DECEMBER 2005

2005/1748 REGINA v NORITAKA KAWASAKI

JUDGMENT 1 HIS HONOUR: Noritaka Kawasaki has pleaded not guilty to two charges, namely that on 3 December 2004 at Avalon he murdered Wayne Lee Nolan and that at the same time and place he maliciously wounded Mark Glover. The accused has elected to be tried by judge alone and the Crown has consented. I shall explain when I review the psychiatric evidence why I consider that the accused has the capacity to make his election. 2 The Crown must prove beyond reasonable doubt that the accused did the acts which constitute the offences and that he had the requisite state of mind. The Crown and the accused have put before the Court a statement summarising the events about which they agree which led to the charges now being tried. Both sides have submitted that those facts suffice to prove the Crown case on each charge beyond reasonable doubt. In my opinion those submissions should be accepted. 3 The accused contends that he is not guilty of either charge because at the time of the events giving rise to them 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. If he does, the law provides for the Court to return a special verdict that he is not guilty by reason of mental illness. 4 The evidence shows that the accused is a single man born on 18 July 1977 and raised in Japan. In April 2004 he travelled to Australia and stayed in various places for various periods of time, principally in Queensland and on the North Coast of New South Wales. In about the middle of 2004 he moved to Avalon and began living in a hostel there. He had some experience in the use of cannabis. He had first smoked it while visiting Bali and Sri Lanka about two years earlier. He had used it occasionally in Japan. During his stay in Australia he smoked the drug in Noosa and in Byron Bay. However, he reported no ill effects from the use of the drug and appears to have experienced no mental disturbances. 5 At the Avalon hostel he met a number of Japanese tourists. He continued to smoke cannabis, about five times a day. He twice took ecstasy. He continued well, however. His appetite was good and he slept well. He had no feelings of paranoia or suspicion. 6 The other members of the hostel described him as happy but shy, perhaps because his English was not good. They said that he laughed a lot. Some described him as quiet and hard to get along with. 7 Mr Wayne Nolan had resided at the hostel for a few months and worked locally. He was an easygoing young man, never aggressive, and very popular with the other residents. He was a good guitarist. He mixed well with everybody. There was no suggestion of any disagreement or tension between him and the accused. He remarked to others how much of a good bloke the accused was. 8 Mark Glover was the night manager of the hostel. He knew all the residents, of course, including the accused. He got on well with him. 9 On the weekend before 3 December the accused went in the company of others to a dance party at Shepparton, Victoria. One of his companions bought ecstasy tablets and supplied some to him. He took them. By the final day of the concert, 28 November, he had begun to behave strangely. His companion became concerned about him and told him to stop taking the tablets. 10 Throughout these times the accused was continuing to smoke marijuana daily and was described as a heavy user. 11 After he returned from the weekend away, residents of the hostel noticed a change in the accused's demeanour. He became withdrawn and difficult to speak to. Whereas he had normally been friendly and polite, he seemed unhappy. He was seen hunched over, hugging his knees, rocking and crying. He stopped washing. He did not change his clothes. He paced up and down. He spent much of his time sitting in front of his bedroom door staring into space. He did not sleep.