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? Officer Protection from who? Accused I don't know, whoever is out to get me. They're making me starve and they're out to get me. Officer I think you're a bit paranoid. Accused I am paranoid yes. There's people out to get me and ruin my olive business. The people involved in the olives in Casino are out to get me. They come out here and take my olives. Officer I know the people that run the olives in Casino. They have way more than you do. Why would they want to take your olives and ruin your business? Accused I don't know but I need protection. Officer I don't think you are very being very honest with us are you? Accused I think so oh, there are Italians on one side of the family. Officer Well, that makes all the difference. What do you mean by that? Accused Well, I don't know. 17 Four psychiatrists gave evidence, Dr Westmore and Professor Greenberg for the Crown and Dr Allnutt and Dr Nielssen for the defence. The Court had the considerable advantage of being able to hear Dr Westmore, Professor Greenberg and Dr Allnutt give evidence simultaneously, enabling counsel and the Court to invite any of them to comment upon the evidence of any other. In this way the Court was able to obtain a good understanding of the preponderance of psychiatric opinion and the limited respects in which there was a difference of opinion. 18 All four psychiatrists are of the view that the events of 2002 show the emergence in the accused of symptoms of psychosis. I think that Dr Nielssen was probably right when he said that it was not a drug induced psychosis but rather one whose presence had been made manifest by the accused's excessive consumption of cannabis. I am satisfied that, whenever the psychosis began, it was well developed by 2002 when he was complaining to his mother about the bug in the doorbell and the spies on the dredge and in 2003 when he was complaining to her about the poison in the milk. I think that the bizarre complaints he was making about the minor work accident, laying unwarranted blame on the supervisor, resulted from his psychosis. Events much closer to the time of the death of the deceased show that the psychosis was continuing unabated. The letters and statement written by the accused and later found by his mother show that his thoughts were thoroughly disordered. His request to the police for protection show that he was motivated by an unreasoning and unreasonable fear. 19 There are some aspects of the case which have given rise to difficulty in the minds of the psychiatrists. There were rational and logical reasons why the accused and his father did not get on. They had over the years had arguments, even violent ones. The accused claimed that he had put money into the farm, and it is possible that he did so. He had a healthy resentment of his father's intention to sell the farm. Such things might have combined in the mind of a reasoning person to justify doing something known to be morally wrong. The question is whether a link can be demonstrated to have existed between the psychotic state in which the accused undoubtedly was and the act causing death. 20 The evidence shows that the accused was probably suffering from a number of delusions when he killed the deceased. The first, which emerges from what he told Dr Nielssen in June 2006 and Dr Allnutt in March 2007, was that a neighbour called Mick, a member of a motor cycle gang involved in drugs, was going to kill him. His father was also involved. 21 Another delusion was that there was some involvement of his mother in the disappearance of the deceased. That emerged in answers the accused gave to the police and to others. 22 Thirdly, the accused believed that the deceased was watching him and plotting to kill him and perhaps he was paying neighbours to kill him. Aligned with that belief was the belief that his father was sometimes a clone and that the clone wanted to kill him. 23 These assertions of belief all come in one way or another from the accused himself, of course, and there is no evidence independent of what he has said by which the assertions may be tested. 24 Added to that, there is the fact that when interviewed by the police the accused made no statement apparently of psychotic origin, other perhaps, than his implication of his mother and her family. As well, explaining his denials in the interview with the interrogating police, he later gave a rational, not psychotic, reason, namely that he denied because he was in shock. 25 The late emergence of the claims of delusions, particularly of the belief that it was a clone of his father that he was killing, is also troublesome. 26 However, I think that the accused's several accounts of these delusions bear a certain consistency among themselves, especially seen against the background of delusions from which he was undoubtedly suffering throughout 2002, 2003 and 2005. His psychotic state explains why he took so long to speak about his delusions. 27 I am satisfied by what he was reported to have said to the investigating police that he believed that he was in need of protection. 28 The acts of the accused in burying the body and denying knowledge of its existence or whereabouts, in setting fire to the bloodstained chair and in throwing away the bloodstained dinner plate as well as the knife show that he was aware that he had done something wrong. I am not prepared to accept that he believed that the accused had gone away, and his insistence on the increasingly preposterous story that the deceased had gone away several weeks earlier without his car, telephone or wallet may also be seen as evidence that he knew that he had done something wrong. 29 Even so, I do not think that his undoubted appreciation that he had done something wrong and faced trouble if the truth were found out prevents his proving that when he killed the deceased he was inhibited by his psychotic illness from reasoning with a moderate degree of calmness about the wrongness of his act. I am satisfied that whatever he did believe, he was a man beset with unreasonable fears. I think that he probably did believe that his father was involved in a conspiracy. I think that he probably did believe that he was in danger of violence from the neighbour and needed the protection he sought from the investigating police. I think that he probably did think that there was some kind of conspiracy in his mother's family. I am satisfied that these beliefs all seriously affected his capacity to reason. I think that he was floridly psychotic when he killed the deceased, perhaps partly as a result of his return to the use of cannabis, as reported by the deceased. 30 In final addresses the Crown very properly submitted that the accused had made out the defence of mental illness. 31 I am satisfied that the accused has made out the defence. 32 The statute which governs cases like this requires me to make an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice that will mean that the accused will be referred to the Mental Health Review Tribunal under the provisions of the Mental Health Act 1990 . A strict statutory regime will then come into effect. 33 The Mental Health Review Tribunal is a body of professional experts. Within 14 days after the verdict the Tribunal will commence a review of the case of the accused. When it has done its review the Tribunal will make a recommendation to the Minister for Health. That recommendation may be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated. If the Tribunal is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release, it may make a recommendation as to his release. If it makes such a recommendation that will be considered by the Department of Health which in turn will advise the Governor-in-Council. The Governor-in-Council will then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor-in-Council may only make an order for release where the Tribunal itself has recommended release. Assuming that no recommendation for release is made after the first hearing the Mental Health Review Tribunal can at any later time, and must at least once every six months, review the case of the accused. 34 After hearing the evidence at any later review, it must make a recommendation to the Minister for Health as to the continued detention, care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal is not free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release. Again following such a review and recommendation the matter goes to the Department of Health and the Minister advises the Governor-in-Council. Any recommendation so advised can be carried into effect only by order of the Governor-in-Council. 35 If the accused were at any time released back into the community on conditions and there were a breach of any of those conditions, the Governor-in-Council might order that the accused be apprehended and detained. Such an order would follow by reason of the practical consideration that if a person were released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available. In other words, if a person is released conditionally back into the community, then the Department maintains a watch over him and a breach of any condition will lead to his being apprehended and detained once again. 36 The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, to ensure that the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients. 37 The only manner in which a person ceases to be a forensic patient for the purposes of these provisions is when he is unconditionally released by the Governor-in-Council, or is released upon conditions which include a condition as to the time that his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I previously explained, the accused will never be released unless the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered. 38 I find that the accused is not guilty of the murder of Mykalaj Charles Maciuk by reason of mental illness. I 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. ********** 18/03/2008 - Deleted repeating sentences - Paragraph(s) 3 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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