New South Wales Supreme Court CITATION : R v Gordon Francis Chang SZETO [2008] NSWSC 368 HEARING DATE(S) : 22/04/2008 JUDGMENT DATE : 23 April 2008 JUDGMENT OF : Howie J at 1 DECISION : The accused is not guilty of the charge of murder on the grounds of mental illness. In accordance with s 39 of the Mental Health (Criminal Procedure) Act I order that, subject to the provisions of the Mental Health Act 2007, the accused be detained in a correctional centre until released by due process of law. CATCHWORDS : CRIMINAL LAW - Trial by judge alone - charge of murder - whether defence of mental illness proved. Criminal Procedure Act 1986 - s 132 LEGISLATION CITED : Mental Health Act 1990 (now repealed) - s 97(2) Mental Health (Criminal Procedure) Act 1990 - ss 38, 39 Mental Health Act 2007 CATEGORY : Principal judgment PARTIES : Regina v Gordon Francis Chang Szeto FILE NUMBER(S) : SC 2007/00004976001 COUNSEL : J Kiely SC - Crown J Manuel - Accused SOLICITORS : S Kavanagh - Crown S O'Connor - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HOWIE J WEDNESDAY 23 APRIL 2008 2007/00004976001 R v Gordon Francis Chang SZETO JUDGMENT 1 HIS HONOUR: This is a trial by Judge alone pursuant to s 132 of the Criminal Procedure Act 1986. The accused was represented by solicitor and counsel and there is no question that he was able to give consent and is fit to stand trial notwithstanding that he suffers from a mental illness for which he is currently being treated. 2 He was arraigned before me on an indictment alleging a charge that on 8 January 2007 he murdered Mario Acquaro. He pleaded not guilty, the only issue for determination being whether he was mentally ill at the time of the killing. No witnesses were called before me and the matter was to be determined on an agreed statement of facts together with a number of statements from witnesses. There was also placed in evidence two reports from forensic psychiatrists. A recording of an interview with police that was taken at the scene of the killing was played at the hearing. 3 The facts can be stated very briefly as there is no contest about them. At about 2 pm the accused entered the back door of a cafe owned and run by the deceased. He had at one time worked there as a kitchen hand. He was armed with a knife and immediately confronted the deceased who was at the time taking a telephone call. The accused stabbed the deceased in the neck and they moved out into the laneway that ran behind the cafe and from which the accused had entered the premises. 4 A number of witnesses observed the accused straddling the deceased, who was lying on the ground, and repeatedly stabbing him to the neck. The deceased's fiancée tried to stop the accused by striking him with her handbag, but to no avail. When one of the witnesses told him to stop, the accused said, "He didn't say sorry, he only said sorry once." Another witness heard the accused shout at the deceased as he was stabbing him, "Are you sorry now? Are you sorry now?" 5 Eventually the accused stopped his attack, stood up and threw the knife on the ground. By this time police had arrived and the accused moved toward them. When asked what had happened by one of the officers, the accused acknowledged that he had stabbed the deceased. After his arrest the accused said to the officer, "Yeah he's dead he deserved it………He deserved it he molested my girlfriend." 6 The accused was taken to North Sydney police station. After being taken from the police vehicle, the accused said, "I have to say now this is the result of a conspiracy against me, it has been going on for three years." He later said that he was under surveillance by either the Federal police or a spy agency. He made other remarks that would have indicated that his thinking was at that time seriously disordered. 7 The police obtained a search warrant for the accused's premises. They located a large number of pieces of paper stuck on the wall of the unit. These contained writing apparently by the accused and which documented what he had entitled "Evolution of Current Rape Victim". The documents are in an ordered sequence setting out what he believed to be the sexual abuse of his ex girlfriend by various persons connected with restaurant premises where the accused had worked. The deceased is named as having kidnapped and raped her. The accused also writes of the deceased referring to her as "toilet paper" and setting up a brothel. 8 There is a reference to the accused asking the victim to name her abusers but that she refused and "non-intended domestic violence ensues". This relates to a charge against the accused of assaulting his ex-girlfriend that was brought against him in November 2006. On that occasion he accused her of being a prostitute and having a secret boyfriend. That charge is still outstanding in the Local Court awaiting resolution of the present matter. 9 Police interviewed the accused about the stabbing over several hours. Many of the answers provided by the accused are long rambling accounts of his being under surveillance. Eventually he set out in great detail the conspiracy about his ex-girlfriend that he had written out on the sheets of paper in his unit and which included the deceased. There are almost a thousand questions and answers in the period from 5.45pm to the conclusion of the interview at 9.13pm. 10 The police also conducted a short interview in the laneway in which the accused lucidly but without any emotion describes the killing of the deceased. However, at the end of it he mentions that he wants to see a lawyer because of the illegal surveillance of him that has been taking place. 11 On 9 January 2007 a psychiatrist and a nurse working within the correctional centre where the accused was placed on remand, prepared a report for the magistrate at the Manly Local Court indicating that the accused was suffering from an acute psychotic illness. On 10 January 2007 the accused was transferred to the Long Bay Prison Hospital and a notification was made to the Mental Health Tribunal under s 97(2) of the Mental Health Act 1990 (now repealed). The accused was declared to be suffering from a mental illness by two medical practitioners in accordance with the provisions of that Act. On 15 January 2007 a decision was made to retain the accused in the hospital because he was still "extremely delusional". 12 On 15 February two psychiatrists, Dr Wilcox and Dr Kasinathan, prepared a report for the Mental Health Review Tribunal. They concluded that the accused had been suffering from undiagnosed paranoid schizophrenia for the last three years. By then he was being treated with anti-psychotic medication but was still suffering delusions. They recommended that he should remain for treatment in the hospital. There was also a report prepared for the Tribunal by the nurse treating the accused. She was of the view that the accused had made some progress but remained mentally unwell with fixed delusional beliefs. 13 It is abundantly clear that the killing of the deceased occurred in circumstances where the accused was becoming more and more deluded. His illness started to manifest itself with the incident in which he is alleged to have assaulted his ex-girlfriend. In the short period leading up to the killing the accused had began to speak about his delusions with others and was making threats against persons whom he believed were involved in the conspiracy to sexually abuse his girlfriend. 14 Dr Bruce Westmore, a forensic psychiatrist, prepared a report for the accused's legal representatives. He first saw the accused in February 2007 and diagnosed the accused as suffering from a psychotic illness. He was of the view that a defence of mental illness would probably be open to him. He re-examined him on 19 June 2007. The accused showed some insight into his illness and accepted that he had been delusional. By this stage he had been on medication for about four months. 15 Dr Olav Nielssen examined the accused at the request of the Crown. He saw him on 18 October 2007. He had also seen the walk-through interview. He comments on the "abnormally calm and matter of fact way" the accused behaved which he thought was consistent with the presence of schizophrenia. He notes that the ERISP interview makes it clear that the accused was affected by "bizarre delusional beliefs". Dr Nielssen diagnosed the accused as suffering from chronic schizophrenia. He formed the view that the accused was acutely mentally ill at the time of the killing and would have the mental illness defence available to him. 16 It is clear that but for the defence of mental illness the accused would be guilty of murder. He at least intended really serious injury to the deceased when he stabbed him in the neck. The defence of mental illness arises where at the time of committing the act causing death the accused was labouring under such a defect of reason from a disease of the mind as not to know the quality and nature of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong or where the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing. "Wrong" for this purpose means wrong according to the ordinary standards of right and wrong adopted by reasonable persons. Defining mental illness in this way has come to be known as the M'Naghten Rules. 17 It is a fundamental principle of the common law that a person who is mentally ill according to the M'Naghten Rules cannot be held criminally responsible for his or her actions. A person who is not criminally responsible for the act giving rise to a criminal offence must be found not guilty regardless of the reason for the lack of criminal responsibility and regardless of the nature of the charge. However, where the absence of criminal responsibility arises from a mental illness, the court is required to return what is known as the special verdict under s 38 of the Mental Health (Criminal Procedure) Act 1990. Such a verdict is obligatory once it has been proved that the accused was mentally ill in accordance with the M'Naghten Rules. There is no discretion available to a judge or a jury because s 38 is in mandatory terms. 18 Of course the relevant time to consider the mental state of the accused is at the time of the act giving rise to the criminal offence with which the person is charged. Here, that is the time of the stabbing. The fact that the accused may have recovered from the mental illness would be irrelevant to determining whether the defence has been made out. That fact, if it were the fact, would be relevant to what order should be made following a finding that the defence had been established. 19 Dr Westmore's report of 20 June 2007 contains the following: "[The accused] was in my opinion acutely psychotic at the time the offending behaviour occurred, he was suffering from either a delusional disorder or a paranoid schizophrenic illness. These illnesses are diseases of the mind which would have totally deprived him of the capacity to know that he ought not to do the act. It would seem that he believed that his then girlfriend was being raped and victimized by a number of other men including the deceased and that the deceased was the head of a conspiracy. He developed over a period of months a very complex and intricate delusional thought content that tragically resulted in him acting aggressively towards his employer and causing that man's death." 20 Dr Nielssen wrote: "I concur with the opinion of Dr Westmore that [the accused] was acutely mentally ill at the time he killed [the deceased] and that he had the defence of mental illness available to him. He had a defect of reason in the form of a bizarre delusional belief that [the deceased] had sexually abused his former girlfriend and had distributed film about it. His delusional belief arose from a chronic schizophrenic illness which is recognised in law to be a disease of the mind. [The accused's] mental illness prevented him from appreciating that his actions were or reasoning with any sense and composure about the consequences of his actions." 21 These are the opinions of two eminent forensic psychiatrists who frequently give evidence in this Court for either the Crown or the accused. There is no reason to doubt the validity of their opinions. To the contrary the evidence in support of their findings is overwhelming. The accused was clearly suffering from a psychotic state at the time of his arrest and questioning by police, moments after the stabbing that occurred in broad daylight and in front of numerous witnesses. Almost immediately after being received into prison, the accused was diagnosed as mentally ill and transferred to a prison hospital in accordance with the provisions of the Mental Health Act then in operation. 22 It is clear on any standard of proof that the accused came within the M'Naghten Rules. He was suffering from a disease of the mind that resulted in a defect of his reasoning so that when he stabbed the deceased he did not know that what he was doing was wrong, or at least could not reason about the consequences of his actions. The killing was a result of a severe delusional state of mind that was a direct result of the mental illness from which he was suffering. 23 It was with respect entirely appropriate for the Crown to concede that the defence was open on the evidence and not to argue against it being upheld. This was an appropriate matter to be dealt with as a trial by Judge alone and to be determined on the papers without the necessity of calling witnesses. There is clearly only one verdict that could be given in light of all the evidence. I find that the defence of mental illness is made out. 24 The accused is not guilty of the charge of murder on the grounds of mental illness. 25 Although the accused's mental health has improved since his incarceration and treatment by antipsychotic medication, he was still considered to be mentally unwell by both psychiatrists reporting to the Court. Dr Nielssen was of the opinion that he would need long-term treatment and rehabilitation before his release into the community. His care and supervision will be under the control of the Mental Health Review Tribunal as it has been since he first went into custody. However, he will now be classified as a forensic patient and dealt with under the provisions of the Mental Health (Criminal Procedure) Act. It should be obvious that the verdict does not mean that the accused can be released into the community immediately but he will be detained in custody until the Tribunal and the responsible government minister are satisfied that he presents no danger to the community or himself. 26 In accordance with s 39 of that Act I order that, subject to the provisions of the Mental Health Act 2007, the accused be detained in a correctional centre until released by due process of law. ********** 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.