R v Darmadji DARMADJI [2008] NSWSC 1308

New South Wales Supreme Court

CITATION : R v Darmadji DARMADJI [2008] NSWSC 1308

HEARING DATE(S) : 5/12/08

JUDGMENT DATE : 9 December 2008

JURISDICTION : Common Law

JUDGMENT OF : Hidden J

DECISION : Not guilty by reason of mental illness

CATCHWORDS : CRIMINAL LAW - trial by judge alone - murder - defence of mental illness

LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990

CATEGORY : Principal judgment

CASES CITED : The King v Porter (1936) 55 CLR 182

PARTIES : Regina Darmadji Darmadji (accused)

FILE NUMBER(S) : SC 2008/12543

COUNSEL : S Kiely SC (Crown) P Winch (accused)

SOLICITORS : David Vautin (DPP) Michael Priddis (Legal Aid Commission)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

HIDDEN J

9 December 2008

2008/12543 R v Darmadji DARMADJI

JUDGMENT 1 HIS HONOUR: The accused, Darmadji Darmadji, has been tried before me, sitting without a jury, for the murder of his wife, Siu Khian Ho. It is not in dispute that in the early evening of Wednesday, 21 November 2007 he stabbed her to death in the home unit where she was living at Randwick. Nor is it in dispute that he did so with the intent requisite for murder, that is, intending to kill her or, at least, to cause her grievous bodily harm. There is ample evidence of those matters and, accordingly, I am satisfied beyond reasonable doubt that the elements of murder have been established. The only issue is whether the accused has the defence of mental illness. 2 I received evidence in documentary form, comprising witness statements, some exhibits, and psychiatric reports. Among the exhibits is the transcript of an electronically recorded interview with the accused after his arrest. Much of this material explains the background to the killing, which it is not necessary to recite in any detail. 3 Put shortly, the accused and the deceased are Indonesians, who met and married in that country. They have a daughter, born in April 1999, who was eight years old when her mother met her death. Sadly, she was present in the unit at the time of the incident and witnessed part of it. The family migrated to Australia in 2001. The deceased's mother and sister also came to this country in that year, and in 2007 they were joined by a male cousin of hers. 4 The marriage of the accused and the deceased was not a happy one. It was marred by arguments and, on occasions, violent or threatening behaviour on the part of the accused. Again, it is unnecessary to go to the detail of this behaviour. They separated at the end of 2002. From about mid-2006 the deceased was living in the unit at Randwick with their daughter, her mother and her sister, and a female friend. Her cousin also moved in there after he arrived in Australia. The accused would visit the unit on weekends to see their daughter, and sometimes he would stay overnight on a foldout bed in the lounge room. 5 Of principal significance for present purposes is the fact that, over a period leading up to the killing, the accused came to believe that the deceased was having a relationship with another man. This angered him even though they had been separated, and had not had sexual relations, for some years. The man in question was the manager of a shop where the deceased worked. It is clear from the whole of the evidence that they did not have a romantic attachment and, indeed, had no contact other than in connection with their work. They did not meet except at the shop. From time to time he contacted her by mobile phone, but only about work related matters. 6 I am satisfied that the accused had a deep conviction that they were in a sexual relationship. However, there was no rational basis for that belief and, in the light of the psychiatric evidence, it is clear that it was delusional. 7 In the days before the killing the accused exhibited disturbed behaviour. Among other things, he had an argument with the deceased's female friend, Anita, over a matter of no consequence. Later, in a conversation with the deceased's mother, he produced a knife and said, "Lucky you come home early, otherwise Anita would be dead." He threw the knife to the floor, picked it up, and said, "Two stabs on the neck and a person will be bleeding to death." He also said, "Only three more days and you will all have your freedom, you will never see me again. …In three days time everything will be fine. Don't worry about me." In fact, this occurred three days before the killing. The deceased's mother made him hand over the knife, and her cousin hid it in the kitchen. 8 On the following day, the accused asked the deceased's mother to give him the knife back but she refused. He told her that he had tried to kill Anita, but he felt as though someone was telling him not to do it. He wanted to kill Anita because she was not "respecting" him and doing what he demanded. He later said to the deceased's cousin, "I want to kill someone. If I want to kill someone I don't want to go to gaol. If we are going to die we will die together. They all look down on me and you watch one day I am going to burn everything." 9 On the day before the killing, the accused rang the deceased's mother to ask her where the deceased was. In the course of the conversation he became angry and said, "Mother you should have given me my knife back. One more day and everything will be okay." He also had a phone conversation with the deceased's sister in which he inquired about the deceased's whereabouts. He became angry and said, "She has run away. Damn it." 10 It is unnecessary to examine the events of these days, and of the earlier part of the fateful day, any further. It is sufficient to say that towards 5.30 pm on 21 November the accused left his place of employment. He made his way to the unit, where he gained entry with a key which he had had cut from the deceased's mother's key. In his recorded interview, he told the police that he had done so because he hoped to catch the deceased pursuing the relationship he believed she was having with the manager of the shop. Upon his arrival, only the deceased and their daughter were present. He directed the girl to go to one of the bedrooms. 11 It seems that he confronted the deceased about the supposed relationship, which she denied. He told the police that he had brought a knife with him, concealed in his clothing. In the event, he attacked the deceased with the weapon, inflicting multiple stab wounds to her head, her neck, her arms, her left hand, and her torso. In the opinion of a forensic pathologist who conducted a post-mortem examination, it was the stab wound to her neck which caused her death. 12 In the course of the attack the deceased called to her daughter, and it was this which brought the unfortunate girl to the lounge room where, as I have said, the violence was still being inflicted. Indeed, she even tried to protect her mother by pulling at the accused's shirt. After the attack he attempted to clean the blade of the knife and hid it behind the washing machine, before leaving the unit with the child. 13 Later in the evening, the deceased's sister and her friend arrived at the unit. Upon entering, they saw bloodstains, left the unit and called the police. When police and ambulance officers arrived, the deceased was lying face down in the lounge room and she had died. 14 On the following day, 22 November, the accused was intercepted by police driving in the south coast area, with his daughter in the back seat. After being arrested, he invited the police to shoot him, saying that he had killed his wife because she had a boyfriend. In the recorded interview he gave an account of the killing. Asked why he had not called an ambulance, he said, "I felt confused, I didn't really think about anything, just sort of get out of there quickly." In response to questions about the basis of his belief that the deceased was in an intimate relationship, his answers were for the most part rambling and incoherent. 15 The accused has been examined by two respected forensic psychiatrists: Dr Olav Nielssen, engaged for the defence, and Associate Professor Carolyn Quadrio, for the Crown. Dr Nielssen interviewed him on two occasions earlier this year, and produced two reports. Associate Professor Quadrio saw him later on one occasion, and produced a report in which she had regard to the opinions of Dr Nielssen. To the psychiatrists he recounted the circumstances of the killing, and other experiences over a period of time leading up to it, in such a way as to demonstrate a measure of thought disorder, together with delusional beliefs of a persecutory nature. Dr Nielssen diagnosed him as suffering from a psychotic illness, either schizophrenia or delusional disorder, and concluded that he was "affected by an underlying mental illness at the time of the offence". The doctor thought that the onset of that illness was about a year before his arrest. 16 Broadly speaking, Associate Professor Quadrio was of the same opinion. She thought it more likely that he suffered from paranoid schizophrenia, but added that "the central features" of his illness "are the intense preoccupation with delusional jealousy and in this regard his condition is more like a Delusional Disorder". 17 Both psychiatrists concluded that he had the defence of mental illness. In his second report, Dr Nielssen put it this way: I believe Mr Darmadji has the defence of mental illness open to him, as he had a disease of the mind in the form of a psychotic illness, either delusional disorder or schizophrenia, that gave rise to a defect of reason in the form of the delusional belief that his wife had formed a new relationship. The acute phase of the illness was associated with a high level of anger and disorganised thinking, to the extent that he was unable to reason with calmness or composure about the likely consequences of his actions or that his actions were morally wrong. 18 That passage, of course, is directed to the legal test for the defence in the context of the present case. That test, expressed in the 19th century language in which it was framed, is whether, from a defect of reason due to a disease of the mind, the accused did not understand that his act of killing his wife was wrong. That he was suffering from a "disease of the mind", in modern terms a psychotic illness, is apparent from the expert reports. The approach to the question whether he did not understand that what he was doing was wrong was expressed in a frequently quoted passage from the summing-up of Sir Owen Dixon in The King v Porter (1936) 55 CLR 182 at 189-90: The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. 19 That test is met in the present case. It is not to the point that the accused attempted to clean the knife and to conceal it. He told the police that he was confused at that time but that he may have done it "to make it more difficult in the investigation". At most, that conveys some sense that his actions might have had legal consequences. However, it is not inconsistent with a lack of insight into the immorality of what he was doing, which is the relevant test. 20 The accused bears the burden of establishing the defence of mental illness on the balance of probabilities. I am satisfied that it has been made out. That is the opinion of two eminent forensic psychiatrists and, in my view, that opinion is supported by the other evidence in the case. 21 I find the accused not guilty by reason of mental illness. In so doing, in accordance with s37 of the Mental Health (Criminal Procedure) Act, I have had regard to the legal and practical consequences of that finding. Pursuant to s39 of the Act, I direct that he be detained at the Long Bay Prison Hospital until released by due process of law. 22 I extend my sympathy to all the members of the deceased's family, who must be deeply affected by this tragic event. **********