R v Luke Maciuk [2008] NSWSC 210

New South Wales Supreme Court

CITATION : R v Luke Maciuk [2008] NSWSC 210 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 03/03/08-11/03/08

JUDGMENT DATE : 12 March 2008

JUDGMENT OF : Barr J at 1

DECISION : The accused is not guilty of murder by reason of mental illness. Order that he be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or at such other places as may be determined by the Mental Health Review Tribunal until released by due process of law.

CATCHWORDS : CRIMINAL LAW - Accused found not guilty on the grounds of mental illness

LEGISLATION CITED : Mental Health Act 1990

CATEGORY : Sentence

PARTIES : Regina Luke Maciuk

FILE NUMBER(S) : SC 2007 / 2246

COUNSEL : C McPherson (Crown) C Bruce (Defence)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Defence)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GRAHAM BARR J 12 MARCH 2008

2007 /2246 REGINA V LUKE MACIUK

JUDGMENT AND VERDICT 1 HIS HONOUR : The accused, Luke Maciuk, is charged that between 22 January and 8 March 2006 at Tabulam, New South Wales he murdered Mykalaj Charles Maciuk. When arraigned at the commencement of the trial on 3 March 2008 the accused pleaded that he was not guilty by reason of mental illness. Before that day he had elected for trial by judge alone. His form of election, made on 21 February 2008, and the Crown's consent, made on 26 February 2008, are together exhibit A. 2 The first piece of evidence in the trial was the accused's formal admission, made in writing and on the advice of his counsel, that between 22 January 2006 and 8 March 2006 he deliberately caused the death of Mykalaj Charles Maciuk. The burden of proving that he is not guilty by reason of mental illness lies on the accused. He must show on the balance of probabilities that he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong. A person does not know that what he is doing is wrong if he does not know that it is wrong according to the ordinary standards of reasonable persons or when he cannot reason with some moderate degree of calmness about the moral quality of what he is doing. The accused's case is that when he killed the deceased he was suffering from a mental illness that deprived him of the capacity to reason with a moderate degree of calmness about the moral quality of the act that he did that caused the death of the deceased. 3 The accused is one of two children of the deceased and his former wife, Ms Kim Godfrey. He was born on 26 May 1983. He has an elder sister. The marriage of the deceased and Ms Godfrey broke down and they separated in 1997. They were later divorced. When they separated the accused and his sister lived with their mother. During that period, beginning in early 2002 Ms Godfrey noticed a change in the accused's behaviour. On investigation she found bongs under his bed and realised that he was using cannabis. His sleeping and eating patterns changed and he lost a lot of weight. In July or August of the same year he began to exhibit signs of delusions and paranoia. He told his mother that the house in which they lived was bugged and that the bug was in the doorbell. She had to dismantle it in order to try to satisfy him that he was wrong. The house was by a river in which a dredge was working. He told his mother that there were spies in the dredge. The accused was adamant that people were after him and that there might possibly be listening devices elsewhere in the house. 4 Throughout this period of time the accused changed from an outgoing young man with lots of friends, who played sport and went to work apparently normally, to a different person. He started stealing from his mother. He took her laptop computer and pawned it. When the accused displayed his delusive and paranoid beliefs Ms Godfrey would try to calm him down and satisfy him that he had nothing to fear. However, his beliefs persisted. There were two occasions on which the accused threatened to commit suicide. With his mother's encouragement he sought and received counselling and was seen by a general practitioner and, I think, a psychiatrist, though there was at that time no formal diagnosis of psychotic illness. There was an occasion when, after an argument, the accused raised his fist to his mother and threatened her. She asked him to leave the house and he did so. He went to live with the deceased. 5 In 2003 the deceased bought an olive farm on the Bruxner Highway at Yellow Creek, near Tabulam, and he and the accused moved to that property and resided there. The accused telephoned his mother and told her that the deceased was trying to poison him. He said that he had put rat poison in the milk. He asked her to come and get him. She went to collect him. He was agitated. He gave her a milk carton and asked her to have the milk tested to see what kind of poison was in it. 6 At about the same time the deceased telephoned Ms Godfrey and told her that the accused had been threatening him. She telephoned the Tweed Heads Mental Hospital Unit and asked for assistance but was told that there was nothing they could do unless she could bring the accused to the hospital. She went to the deceased's place. The accused was there but had barricaded himself in his bedroom. The deceased told her that he had phoned for the police. The accused never did come out and there was nothing that Ms Godfrey could do. She just had to go home. 7 The accused had had a number of jobs and in September 2005 was working at a timber business. There was an accident at work in which a piece of timber hit him in the foot and caused some superficial injury. Those who had the medical care of him considered his reaction disproportionate. He was accusing his supervisor of having deliberately thrown the timber at him and claiming to have been much more seriously injured than the objective facts suggested. He told a psychiatrist, Dr Petroff, that he would not take the tablets Dr Petroff was recommending unless the supervisor were dismissed. Eventually, I think, his worker's compensation benefits were cut off on the ground that he was exaggerating. Those having the care of him at that time had no knowledge of the events of 2002, of course, so no connection between those events and the work accident could be drawn. There was no diagnosis of psychotic illness, though I am satisfied that the accused was continuing to suffer from the psychosis which had first manifested itself in 2002. 8 By the end of 2005 the deceased was considering selling the olive farm. It was losing money and he was finding the work very hard. He complained to neighbours that he was receiving no assistance from the accused, who was smoking cannabis. There had been altercations between the two on a number of occasions and police had been called out to the property. The deceased told neighbours that the accused had threatened him and had done him injury. He told them that if he were killed they would know that the accused was responsible. 9 In late January or early February 2006 Ms Godfrey received two quite unusual telephone calls from the accused. His elder sister had recently graduated from university and had been admitted or was to be admitted as a legal practitioner. The accused told his mother that there had been some kind of government intervention in the way that his sister had been assisted to obtain her degree, linked somehow to Ms Godfrey's father. Some kind of mining business was somehow involved as well, though what the accused was saying made no sense to Ms Godfrey. The conversation went on for a long time, probably an hour and a half, something quite unusual for the accused. Another telephone conversation occurred about the same time. The corporation AWB, formerly the Australian Wheat Board, had been in the news over its activities in Iraq. The accused told Ms Godfrey that he had written a letter to AWB and that she would be very proud of him. The purpose of the telephone call and the letter were unclear to Ms Godfrey, however. 10 The last time any of their neighbours saw the deceased was on about 14 January 2006. On 25 January a notice appeared in front of the farm advertising olives free of charge. Two neighbours called in to enquire about the notice. The dogs were loose, barking and apparently dangerous, but the accused did not appear. When he eventually did appear the neighbours found him very hard to engage in conversation. When he responded they thought him "like a zombie". They thought that something was wrong and felt so uncomfortable that they left straight away. Another neighbour called on the following day, also attracted by the notice, and tried to engage the accused in conversation. He asked him where the deceased was. The accused simply ignored him. 11 I am satisfied that by the time of those events the accused had killed the deceased. He later disclosed to consulting psychiatrists that he had struck his father over the head with a hammer and, because he did not want him to suffer, had slit his throat with a knife. That account was consistent with the condition of the body when it was found. He said that he had burnt the blood stained chair on which his father had been sitting and had thrown into a river a dinner plate that bore his father's blood. He had buried the body on the property. 12 The deceased's family became concerned that they had not heard from him, and eventually the accused's sister reported to the police that the deceased was missing. The police called at the property and asked the accused where the deceased was. He made up a story about the deceased having left about four weeks earlier to seek work at a country music festival. The police noticed that the deceased's wallet, mobile telephone and car were all at the property and did not believe the accused's story. The accused persisted with his unconvincing story and denied the possibility that the deceased was dead. Eventually a search was carried out and the deceased's body was recovered. 13 The accused was arrested and interrogated. In an interview lasting two and one half hours he gave detailed answers to interrogating police officers insisting that he had nothing to do with the death of the deceased. He played down the seriousness of the reported incidents in which police had attended the property and insisted that he and the deceased had got on well together. On the face of it the account he gave was no different from lying denials that are frequently seen. However, I accept the evidence of Dr Nielssen, psychiatrist, that several of the answers give a grossly inadequate explanation of events and display poverty of thinking. 14 After the accused's arrest Ms Godfrey went to the farm and found papers written by the accused. They came into evidence as exhibits 4, 5 and 6 respectively. Exhibit 5 is addressed to "Dear fellow producers, Aussies" and refers to a conversation the accused had had that day with an AWB employee. The sentences of which it consists comprise strings of clich After the accused's arrest Ms Godfrey went to the farm and found papers written by the accused. They came into evidence as exhibits 4, 5 and 6 respectively. Exhibit 5 is addressed to "Dear fellow producers, Aussies" and refers to a conversation the accused had had that day with an AWB employee. The sentences of which it consists comprise strings of clichés, high sounding ideas and apparently unrelated statements of fact. The letter is nonsensical and bears no discernible ultimate meaning. The letter exhibit 6 is dated 15 February 2006. It is addressed to a man by name and is headed "Country Wide Equities Financial interest available for indicative enhance arise to lifestyle." It touches upon a number of subjects including the attractiveness of the olive farm. Ultimately it has no discernible theme or meaning. The document exhibit 4 lists a number of unconnected statements or ideas, including the names and some asserted properties of certain minerals. Its meaning is entirely unclear. 15 All the psychiatrists who gave evidence agree, and I accept, that these three documents demonstrate that when he wrote them the accused was suffering from disordered thoughts. I accept their opinions that that is evidence of psychosis. 16 When investigating police called at the farm there was this conversation - Accused So, can you offer me protection?