New South Wales Supreme Court CITATION : Regina v Guler [2006] NSWSC 966 HEARING DATE(S) : 07/08/06-11/08/06 inclusive JUDGMENT DATE : 11 August 2006 JURISDICTION : Common Law JUDGMENT OF : Michael Grove J at 1 DECISION : VERDICT AND JUDGMENT OF NOT GUILTY BY REASON OF MENTAL ILLNESS CATCHWORDS : CRIMINAL LAW AND PROCEDURE - MURDER - TRIAL BY JUDGE WITHOUT JURY - MENTAL ILLNESS RAISED AND SUPPORTED BY EVIDENCE - FINDINGS LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 PARTIES : Regina v Cemil Guler FILE NUMBER(S) : SC 2005/2186 COUNSEL : K. McKay (Crown) R. Button (Accused) SOLICITORS : Solicitor Public Prosecutions (DPP) Public Defender (Accused) LOWER COURT DATE OF DECISION : N/A IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Friday 11 August 2006 2005/2186 - REGINA v CEMIL GULER JUDGMENT 1 HIS HONOUR: The accused, Cemil Guler, was indicted before me on a charge of the murder of his wife, Altun Guler, to which charge he has pleaded not guilty. 2 I have previously noted compliance with the requirements for trial without jury in accordance with the request of the accused and the consent of the Crown. 3 The accused was born Turkey on 1 October 1939. In 1961, by arrangement of their respective families, he and Satu Tan were married. They had a son and two daughters, born in Turkey in 1965, 1967 and 1969. In 1971 the family migrated to Australia. A second son was born here in 1976. In 1990 the accused and Satu Tan were divorced. 4 After the divorce, the accused returned to Turkey. Apparently it was known that he was looking for another wife and he encountered members of a family who suggested that the victim, then recently divorced, might accommodate him. They were married in 1991. Three children were born; two daughters whom I will refer to as N and A, who are presently aged about 14 and 12, and a son, whom I will refer to as C, now aged about 8. 5 As at 11 April 2005, the family resided at a house in Fairfield. Shortly prior to that date, as I shall later detail, the accused had been a patient at the Mental Health Unit of Liverpool Hospital. He had been released from there on leave on 9 April and returned to the unit at about midday on 11 April and was granted further leave on an understanding that he would be staying with the younger son of his first marriage. He was, however, seen during the afternoon sitting on the front porch of the Fairfield premises. 6 His wife, Altun, returned from work at about 5.15 pm. The three children were in the house watching a film being played from a video disk. 7 I am satisfied of the following facts beyond reasonable doubt. An argument developed between the accused and his wife. Among other things, the accused asked her to give him money so that he could return to Turkey. She refused. The accused had been out of employment since an injury to his arm some time in the 1980s. He was, in fact, unemployed throughout the whole of the second marriage. He made allegations of infidelity. They were in the kitchen where Altun Guler had commenced to prepare a meal. 8 The argument reached a stage that she was screaming. The accused armed himself with a kitchen knife. The children, in particular the daughters, called on their father to stop. They saw him with the knife. However, the accused stabbed his wife with fatal consequences. Prior to the stabbing, one of the daughters heard her father say, "I'll kill you." 9 The children ran to the house of a neighbour where an emergency call for police and ambulance was made. After he had stabbed his wife, the accused was assessed by the elder of the two daughters to have been, "acting weird," because he, "magically," turned into a nice person and, having just stabbed their mother, asked the children to call police and ambulance. 10 The children having fled, the accused made his way to a shop where a customer was recruited to call police. In response to inquiry whether an ambulance was required, the accused replied in the negative. He waited, smoking a cigarette, outside the shop. The police arrived shortly thereafter, arrested him and took him to a police station. 11 Arrangements were there made for him to speak to a solicitor by telephone after which he exercised his right to decline interview. 12 Police had also gone to the house at Fairfield where Altun Guler's body was slumped on the floor in the kitchen surrounded by pools of blood with further blood splatter about the area. A frying fan on the stove was about to ignite and the constables rendered the kitchen safe from fire. 13 Senior Counsel for the accused stated at the outset of the trial that there was no dispute about the elements of murder. Nevertheless it is incumbent on me to direct myself and make findings. 14 Post-mortem examination located three stab wounds in the front of the victim's chest, two of them associated with damage to the apex of heart. Death was caused by the stabbing. I note that examination and testing revealed no presence in the body of the deceased of alcohol or drugs of any kind. 15 I find that it was the act of the accused in stabbing his wife with the kitchen knife which caused her death. Having regard to what he was heard to say prior to the stabbing, I find that at the time he did so, he intended to kill Altun Guler. 16 Such findings amount to proof of the commission of murder by the accused, subject to the circumstances surrounding his mental state at the time of killing. These are whether the accused was then mentally ill so as not to be responsible according to law or, alternatively, whether by reason of substantial impairment by abnormality of mind, the culpability of the accused should be reduced from murder to manslaughter. 17 I deal with the defence of mental illness. I record that I have instructed myself that the onus of proof rests upon the accused to the standard of the balance of probabilities. He is required to prove that as a result of defect of reason from a disease of the mind, he did not appreciate the nature and quality of his physical act or that he did not know that it was wrong. 18 It was not suggested that the accused did not appreciate the nature and quality of his physical act. Although the onus is upon him to demonstrate this negative, I am positively satisfied that he appreciated that he was wielding a knife and using it to stab his wife. I am also satisfied that, in the sense that it was unlawful and would attract retribution, the accused knew that it was wrong to stab his wife. Again, I would be satisfied, in a positive sense, but it suffices that he does not satisfy me that he does not have that knowledge. His immediate requests for the keepers of law and order, whilst not contemporaneous with the act of killing, were strong indications of his state of knowledge of the wrongness in that sense. In so saying, I do ignore the behavioural transformation assessed by the elder daughter. 19 The issue is not determined, however, by knowledge of possible legal wrongness, but wrong in the sense that by reason of disorder or disturbance of his mind, the accused could not think rationally of the reasons which ordinary people would contemplate and consider, therefore, his act to be right or wrong or, if, through the condition mentioned, he could not reason about the matter with a moderate degree of sense and composure. 20 To assist on these matters, I have the testimony of expert psychiatrists. Two of these, Dr Lambert and Dr Thomas, were clinicians involved in the admission of the accused to the Mental Health Unit at Liverpool Hospital. 21 Dr Neilssen and Dr Westmore are consultant forensic psychiatrists, retained by the Crown and the accused respectively to consider available material and tender their opinions to the court. 22 I add that I have some material concerning events in 1990 from Dr Samad, a since retired clinical psychiatrist, to whom the accused had been referred at that time. Although I have this expert assistance to draw upon, I should observe, at the risk of being trite, that I must reach any conclusion upon the whole of the evidence which I am prepared to accept and depend upon. 23 There is an abundance of evidence tendered in the form of a brief of documents tending to demonstrate, using language not intended to represent particular conclusions, abnormal and aberrant conduct by the accused. 24 There was also evidence of violent behaviour. The accused's first wife, Satu Tan, said he was physically and verbally abusive towards her throughout 29 years of marriage. Inter alia, he stabbed her hand with a knife in about 1969 and similarly stabbed his elder son's hand in about 1981. She recounted two other stabbings to her wrists in the mid 1980s. She said that in about 1982/1983 he forced her to see Dr Samad above mentioned with a request that she tell him that he was crazy. She did not believe him to be mentally ill but engaged in a ploy to get an Australian pension and return to Turkey. Things apparently not developing to his liking, she said that he had hit her over the head with a chair in the presence of the doctor. 25 The accused's propensity for violence was confirmed in statements by the three older children of his first marriage. The youngest did not relate similar history, but observed that his father was a short tempered man who, when he loses his temper "loses the plot." From their lay perspectives they did not accept that their father had a mental illness. 26 However, after her death, a record titled (as translated from Turkish) "My Life in Marriage", handwritten by Altun Guler, was found. It recounts much detail that I need not summarise, but commences with the encounter of the accused in Turkey with her relations, after which she states "the wedding was decided." At the time of the marriage she was 23 and he was 50. 27 They came to Australia. As I have noted, he was not engaged in employment but left the house each day returning home late at night. Gambling losses seemed to have contributed to the wife attempting to control any income to the household. 28 Between the births of their two daughters, she miscarried a pregnancy following being beaten by him. I make no finding about the cause, but this event might be contrasted with the description of the accused in a telephone call, monitored while he has been in custody, in which he claimed to have enforced the termination of a pregnancy for which he was, he asserted, not responsible. 29 Altun Guler became aware, not only of the accused's gambling, but of his consumption of alcohol and visits to prostitutes. The record reveals the decline in the marriage relationship to the extent that it might ever have been regarded as being satisfactory. 30 Significantly, she began to doubt his mental stability. In various contexts she described him as "crazy" and she wrote that, despite what he did to her, he was the father of her children and she should stay with him although she considered he was "mentally imbalanced." Her elder brother advised her to divorce him because "he is insane." The obviously incomplete document concludes with what she reports him saying, the content of which is consistent with, in part, visual hallucination and, in part, a jealous delusion. It records in quotation "there goes a snake, there goes a rat, there is a man lying next to you. He runs after me with a knife. Enough of your cheating me neighbour's husband." The whole of the material from the observers, who, as family members, were in good positions to do so, is highly suggestive of abnormal behaviour patterns. Of course it might also be consistent with the behaviour of a violent man who was quick to anger. I should, therefore, seek elucidation. 31 As well as the ultimate psychiatric opinions, there is a large volume of material which can contribute to an assessment of the accused's mental state generally, and point to what it was at the time of the killing. It is in the nature of such recordings that they are made by doctors, nurses and health professionals who are not always identified. Frequently they record hearsay. I have no reason to doubt that the various documentary entries are bona fide made for the purposes other than the task upon which I am now engaged. Overall, however, I consider they provide a background to enable a gauge to be made of opinions expressed and fortification of determination concerning the issues raised by the defence. On a broad canvas, a picture is painted of the mental state of the accused as he presented from time to time. 32 Doctors Samad treated the accused for depression but expressed a view that he was a, "sociopath, aggressive, and had a personalty disorder". 33 In an admission to hospital in September 1990, it is recorded that he was referred by his local medical officer because he was "mentally unstable". He complained of feeling his head swollen with a rock inside, and had for the past one and a half years been hearing noises in his ears of birds and folk singing from Turkey. Another record about that time noted "paranoid ideas concerning physical assault by his family". 34 Nothing by way of specific treatment seems, so far as the records show, to have been undertaken or thought to be required. 35 I move to events more proximate to the killing. In the weeks preceding the killing Mrs Guler contacted police on several occasions. Police who responded to calls did not acquire an impression that the accused was mentally unstable. On 18 March Altun Guler told a Turkish speaking officer that she thought the accused was "crazy" and was accusing her of sleeping with his friends. A visit by the Fairfield Mental Health team was arranged and they called on 20 March. 36 In an interview they noted changes in the accused's demeanour. He told them about rats, snakes, and voices and on that day he was admitted as a voluntary patient to the Mental Health Unit at Liverpool Hospital. A note by a psychologist on that date quotes the victim saying that her husband is sick, and she insisted that something was wrong with him. The elder daughter confirmed that her father was seeing things like snakes on the ground and he "talks to them". 37 The notes by the mental health team included "not acting normally" and "psychotic features" for five months, not sleeping, inappropriate crying, and going to neighbours and asking for sex. 38 On 22 March the accused absconded from the hospital but went home where he was located and escorted back to the hospital by police. 39 His conduct at the hospital led to his being detained as an involuntary patient. The necessary two certificates under the Mental Health Act were given by Dr Watson, a registrar, and Dr Lambert, the superintendent. Dr Watson noted the reported behaviour of the accused, kissing and touching a female patient, and that he had stated that "voices had told him to do it". I am aware that he had also earlier denied that the events happened at all. Dr Watson had information from a general practitioner that the accused's behaviour had been erratic and aggressive. 40 The reported behaviour noted by Dr Lambert included the inappropriate behaviour by touching and kissing other patients, and giving unusual reasons for the behaviour, for example they (and I note the plural) were smiling at him and giving him messages to approach. There were also reported accusations of infidelity by his wife. Part of the certificated conclusion was that the accused "appears to be acting on impulses beyond his control he cannot explain". 41 It is worthy of note that at the time of the killing, pursuant to these certificates, the accused was subject to detention pursuant to the Mental Health Act and was at large conditionally in the sense that he had been granted leave. 42 The evidence of both forensic psychiatrists supported a finding that on the probabilities the mental state of the accused at the time of the killing fulfilled the requirements to sustain the defence of mental illness. Inherent within their opinions was fulfilment also of the requirements of the partial defence of substantial impairment. Although, as I have said, they were retained by the opposing parties, their opinions were congruent. 43 Initially Dr Westmore expressed a provisional diagnosis of a paranoid schizophrenic illness with a primary differential diagnosis of a delusional disorder such as morbid jealousy. Dr Nielssen favoured the latter diagnosis, and in evidence, and after seeing further material, Dr Westmore said that he would be comfortable if the priority of the alternatives were reversed. 44 Both Dr Lambert and Dr Thomas accepted the possibility of a delusional disorder but placed it no higher. 45 The evidence includes the Liverpool Hospital file which goes back to the admission arranged by Dr Samad. The file shows a constant and repetitive assertion by the accused of his wife's infidelity. The extravagance of his obsession included accusing her of having affairs with a variety of men ranging from a bus driver and the postman to an unidentified multi millionaire. The statements show that he had no inhibition about articulating his belief to anybody and everybody, to family, to police officers, to social workers, to medical and nursing staff. 46 There is no evidence whatever of any infidelity on the part of Altun Guler. She was in a good position to describe the conduct of the accused. On 31 March she told nurses at the hospital of her distress and that the accused's behaviour was not normal and, tellingly, she reported that he made things up and, "to him it is so true that no matter what, you can't change his way of thinking". 47 I am satisfied that the accused did have a defect of reason from a disease of the mind as diagnosed by Dr Westmore and Dr Nielssen. 48 The next issue is whether through that disorder he could not rationally determine that his act of killing his wife was wrong. Contrary to a Crown submission the question is not whether he was compelled to perform the killing. There was, as I have mentioned, evidence as long ago as 1990 that he was having what might be assessed as auditory hallucinations of birds and folk singers. There were reports of such in the times leading up to the killing and, for that matter, in the time since. 49 In the course of the hearing the expression 'command hallucination' was used, but whether that phrase is literally accurate or not, the occurrence of reported auditory hallucinations fortify the expert opinions of the forensic psychiatrists. 50 Dr Westmore unequivocally stated that the mental illness of the accused would have totally deprived him of the capacity to know that he ought not do the act. Dr Nielssen opined that the accused's mental illness resulted in a defect of reason in the form of the delusional belief that his wife was unfaithful to him. His opinion further was that the illness deprived him of the ability to control his actions with reason or composure. 51 Each of these doctors was cross-examined at length by the Crown Prosecutor, Senior Counsel for the accused expressly consenting to cross-examination of the Crown witness, Dr Nielssen. I do not think that it is necessary to epitomize the content of these cross-examinations. They were thorough and searching, but raised nothing which would erode confidence in the basic opinions which had been expressed on the critical issues. It suffices to observe that I found their evidence strengthened by their respective responses to cross-examination. 52 As I have said, I see no need to recount the detail of what can be read in the transcript if needed. As I understood the thrust of the Crown submissions it was that I should not be satisfied of the discharge of the onus borne by the accused, as the circumstances were compatible with a domestic dispute which reached a climax which had been forecast by the accused in frequent threats to kill his wife. 53 I would accept that, at the critical time, there were in operation feelings of emotion and anger such as would attend a violent domestic dispute, but assessment of the accused's mental state at the time has led me to a finding in harmony with the opinions of the forensic psychiatric experts. 54 As Dr Nielssen observed, despite the reservations expressed by the clinical psychiatrists, the accused at the very time was being treated with an anti-psychotic medication, and, I reiterate, he was a scheduled detained person under the Mental Health Act when he killed, although in fact on permitted leave. 55 Of course I recognise the possibility that the accused is a cunning and prevaricating humbug, but the issue is not what may possibly be the case but whether the evidence proves the probability of the ingredients necessary to lead to a verdict of not guilty by reason of mental illness. 56 In the light of my conclusion it is not necessary to turn to the partial defence, but I should refer to some incidental matters raised by counsel. 57 I have earlier referred to the conduct of the accused towards other people and his wife, particularly aggression by the use of a knife. Senior Counsel for the accused did not object to the evidence on the basis that it was part of contextual history to be used by the experts in forming their opinions, but the Crown sought its tender, and had given notice, for its use as tendency evidence. 58 Even assuming the latter use, for all I know the mental state of the accused was no different on any of those other occasions. Even if it was different, the circumstances have been made available to the psychiatrists whose opinions, for the reasons they gave when confronted by particular facts, were not varied. Neither is my acceptance of the relevant conclusions varied by this evidence. 59 It is true that, when interviewed by doctors the accused made assertions that could be categorised as self defence. It was not sought to be argued by his counsel. If it be thought necessary for the Crown to negative its existence, I would so find. Of course, the Crown essentially relied on these assertions as showing that the accused was, rather than mentally ill, a manipulator and a deceiver. What he said about the topic together with other demonstrable lies, were suggested to portray a consciousness of guilt. 60 I am not satisfied that the guilt of the crime charged was the reason for prevarication. Indeed, I think it likely that they are manifestations of the deluded way this accused sees things. 61 To return to the issue. In summary, I have the evidence of two highly qualified forensic psychiatrics that, in their opinion, the accused was not, at the time of the killing, able to calmly and rationally assess whether his act was wrong and this incapacity arose from a diagnosed mental illness. 62 Whilst that opinion is not shared by the clinical psychiatrists who were involved in his care at the Mental Health Unit, which was current at the time, their evidence did not categorically deny it. 63 It seems to me that the appropriate finding should follow the forensic opinion, fortified by the circumstance that Dr Westmore and Dr Nielssen express in their opinions after analysis of the whole accumulation of history concerning the accused and his behaviour. I have myself also had the opportunity to read that history. 64 Accordingly on the indictment, I find Cemil Guler not guilty on the grounds of mental illness of the crime of murder on which he stands charged and I enter judgment to that effect. 65 Pursuant to s39 of the Mental Health (Criminal Procedure) Act 1990, I order that order that the accused be detained at an appropriate correctional centre and thereafter from time to time to be dealt with according with statutes in such cases made and provided. ********** 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.