New South Wales Supreme Court CITATION : R v Maissin [2009] NSWSC 203 HEARING DATE(S) : 20 February 2009 JUDGMENT DATE : 27 March 2009 JUDGMENT OF : Fullerton J DECISION : Not guilty of murder by reason of mental illness. I order his detention in accordance with s 39 of the Mental Health (Criminal Procedure) Act until released by due process of law. CATCHWORDS : CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - insanity and mental impairment - disease of the mind, mental disease or mental infirmity LEGISLATION CITED : Criminal Procedure Act 1986 Mental Health (Criminal Procedure) Act 1990 CATEGORY : Principal judgment PARTIES : The Crown Jean Claude Maissin FILE NUMBER(S) : SC 2008/12420 COUNSEL : C Everson (Crown) C Smith SOLICITORS : Director of Public Prosecutions (Crown) G Elks IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST FULLERTON J 27 MARCH 2009 2008/12420 R v JEAN CLAUDE MAISSIN JUDGMENT 1 HER HONOUR: On 11 March 2008, after a number of patients from the Rozelle Hospital raised the alarm, the deceased, David Zidansek, was found by staff seriously injured having sustained multiple stab wounds. Jean Claude Maissin was charged with his murder on that day. 2 On 6 February 2009 Mr Maissin was arraigned before Barr J and pleaded not guilty after which, with the consent of the Crown, his trial was set down without a jury pursuant to s 132 of the Criminal Procedure Act 1986. 3 On 20 February 2009 Mr Maissin was re-arraigned before me and pleaded not guilty to the murder of David Zidansek on the ground of mental illness as provided for in s 22 of the Mental Health (Criminal Procedure) Act 1990 ("the Act"). 4 The sole issue in the trial was whether I was satisfied Mr Maissin should be acquitted of murder on the grounds of mental illness pursuant to the provisions of s 38 of the Act. Although at the time of the attack that resulted in the death of the deceased Mr Maissin acknowledged some appreciation that he had done the wrong thing, the Crown did not seek to persuade me that a special verdict ought not be entered in this case. No oral evidence was called in the proceedings either by the Crown or Mr Maissin. 5 By consent, and without objection, the Crown tendered a bundle of material containing a number of witness statements, a transcript of an interview between police and Mr Maissin and medical reports. Given the nature of the proceedings, however, the critical documents were the report of Dr Olav Nielssen dated 21 November 2008, tendered on behalf of Mr Maissin, and the report of Dr Rosalie Wilcox dated 22 January 2009, tendered by the Crown. 6 The reports reflect a uniformity of opinion to the effect that at the time of the fatal stabbing Mr Maissin was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. 7 Accordingly, as provided for in s 38 of the Act, I found Mr Maissin not guilty of the murder of David Zidansek by reason of mental illness and ordered his detention in accordance with s 39 of the Act until released by due process of law. 8 After entering the verdict I indicated that I would publish reasons in support of that finding. The balance of this judgment constitutes those reasons. Facts 9 Mr Maissin and the deceased were both involuntary psychiatric patients at the Rozelle Hospital. Hospital patients were housed either in wards or one of five self-contained cottages. Mr Maissin and the deceased shared a cottage with two other patients. According to Mr Maissin's statements to the police and the interviewing psychiatrists, the deceased and he were friends. The two men spent each day together, walking, weight training, playing pool, attending various group therapy sessions and taking care of the household they shared. This evidence was corroborated by a number of other patients. 10 On the day of the killing Mr Maissin had breakfast and then asked the deceased to accompany him on a walk. They walked around the hospital grounds together after which they attended a group therapy session. The session lasted for about an hour. They then returned to their cottage to commence weight training. 11 Mr Maissin told the police in his record of interview that soon after commencing training he began to have negative thoughts about the deceased and started to feel anxious and paranoid. He said that he observed another housemate repeatedly glancing at him, and then over at the deceased, in a manner which suggested to him that his housemate wanted him to kill the deceased. 12 As soon as the training session concluded, Mr Maissin went to Ward 28 of the Rozelle Hospital where he informed the nurse in charge that he was feeling anxious and paranoid and requested medication. He was provided with 150mg of Seroquel, an anti-psychotic medication. He went back to the cottage and retired to his bedroom. He told the police that he was trembling and lay down in order to try and relax. He said the medication made him feel a little drowsy at first but that subsequently his adrenalin surged and he heard voices telling him to kill the deceased. He remained in his bedroom in this state for an hour and a half. He then decided to attend another group meeting hoping that this would help him to calm down. Instead Mr Maissin reported that he was "receiving signals" from other members of this group which he again interpreted to mean that he should kill the deceased. 13 After returning from this meeting Mr Maissin went straight to his bedroom where he watched television. He said he received messages from the television telling him to harm the deceased. 14 Mr Maissin said that when he eventually came out of his bedroom the deceased was preparing dinner for himself which he ate in the kitchen. When the deceased came into the lounge room Mr Maissin immediately got up and went to the kitchen where he prepared and ate his own evening meal. The deceased then went into the yard where a number of other patients were socialising. Mr Maissin could see them through the kitchen window. Mr Maissin said that he observed the other patients looking at him and then at the deceased in a manner that suggested to him that he should harm the deceased. While Mr Maissin was in the kitchen eating his dinner one of the housemates walked in and said something which Mr Maissin could not understand. He said that he then saw his housemate glancing from the kitchen knife, which was on the bench, over towards him. 15 Shortly afterwards the deceased came into the lounge room and sat down to watch the television. Mr Maissin remained in the kitchen by which time he had picked up the knife from the bench. He recalled thinking that he did not want to harm the deceased, however he thought that the other patients were signalling to him through the window to kill the deceased. Mr Maissin walked out of the kitchen, holding the knife in his hand, into the lounge room and then out into the yard past the other patients. He said that they must have seen him holding the knife and that he took their indifference to mean that he should kill the deceased and that he should do it that day. He then walked back into the lounge room and attacked the deceased. 16 Mr Maissin recalled that he and the deceased wrestled during which time he repeatedly stabbed the deceased who fell to the ground. He said the handle of the knife broke so he went into the kitchen and grabbed another knife and resumed stabbing the deceased. He said he was hearing voices throughout telling him to kill the deceased. He said the voice was his own telling him that if he did not kill the deceased the deceased would kill him. 17 After the stabbing, Mr Maissin then went into his bedroom to put some clothes on at which time hospital security officers arrived, having been alerted to the incident by the other patients. He was asked to take a seat in the kitchen while a number of nursing staff and a doctor attended to the deceased. He complied. When the hospital staff first reached the deceased he was still alive. They administered CPR which was ultimately unsuccessful. The deceased was pronounced dead at the scene shortly thereafter. At 7.30pm the police arrived and placed Mr Maissin under arrest. On autopsy, multiple stab wounds to the back and chest were cited as the cause of death. 18 In order to determine whether Mr Maissin was fit to enter a plea and to stand trial on a charge of murder, he was interviewed by Drs Nielssen and Wilcox. He provided both doctors with essentially identical accounts of what occurred on the day of the offence together with information about his personal circumstances both prior to the offence and following his incarceration. Both doctors considered he was fit to plead to the charge. Both considered, however, that his capacity to reason about his actions with composure was grossly impaired, due to a belief that his actions were justified by self-protection and that he was relevantly unaware of the wrongfulness of his actions. Subjective circumstances 19 Mr Maissin was born in 1972 and is currently 37 years of age. He moved to Australia from New Zealand with his mother and two older sisters when he was 14, following his parents' separation. He left school at the end of Year 10 and took up an apprenticeship as a motor mechanic. He was in continuous employment until his first offence in late 2004. He also reported to both doctors that he began consuming alcohol when he was about 8 or 9. By the age of 11 he was consuming spirits and smoking cannabis. During his teenage years he also experimented with hallucinogenic "trips". His drug use escalated in his early twenties when he began using anabolic steroids whilst engaging in body building, as well as amphetamines, cocaine and MDMA. Mr Maissin also recalled being admitted to hospital following a seizure which he was told was the result of a heroin overdose. Mental health 20 Mr Maissin reported that he began experiencing symptoms about seven years prior to the death of the deceased which the doctors regarded as consistent with schizophrenia. He reported believing then that other people could read his thoughts and that someone was attempting to murder him. He said he felt compelled to harm others before they got a chance to harm him, which led him to start fights or arguments, eventually leading to the wounding of a friend, as a result of which he was hospitalised at Rozelle in 2004. He further said that because he felt threatened he frequently moved home and withdrew from social interaction. 21 Mr Maissin also suffers from epilepsy with generalised seizures. He had his first seizure when he was 27 years of age. At first his seizures were treated as drug-related until a diagnosis of epilepsy was made. Dr Wilcox noted that Mr Maissin had two epileptic seizures in the immediate period following his arrest and admission to Long Bay Hospital. She also noted that after these seizures Mr Maissin would often display aggressive behaviour which led on one occasion to an unprovoked attack upon one of the prison guards. Prior offence 22 Mr Maissin gave an account to both doctors of the circumstances which led him to become a forensic patient at the Rozelle Hospital. He reported that in December 2004, following a week of continuous amphetamine use, he experienced frightening auditory hallucinations, which in turn caused him to develop persecutory beliefs about a friend as a result of which he attacked and wounded him. Within a few days he was arrested and committed to the Rozelle Hospital. 23 He was granted conditional release in March 2006. Despite the conditions of his release however he resumed taking illicit drugs and ceased taking his prescribed medication. As a consequence, he experienced previous symptoms consistent with his mental illness. 24 On 19 April 2006 he was readmitted to Rozelle Hospital after his father noticed that he was acting strangely. Within a month of being readmitted Mr Maissin left the hospital without permission and went to a friend's house. He said that he again felt under threat from his friend, as a consequence of which they had an argument and he was taken back to the hospital. 25 The hospital notes also indicated that in May 2006 Mr Maissin reported receiving messages from his television and radio. 26 Mr Maissin told Dr Wilcox that three weeks prior to the fatal attack upon the deceased he had a visit from a former girlfriend. He had not seen her for six months prior to her visit. He said that while she was with him some distressing memories were triggered and he formed the belief that she had tried to kill him. He then believed he saw her smiling at the deceased in a "knowing way". He formed a belief that the deceased and his ex-girlfriend had known each other previously and were perhaps conspiring against him. After she left he spoke to a doctor from the Rozelle Hospital about his thoughts and was prescribed 100mg of Seroquel which Mr Maissin was able obtain on request. He reported to the police and Drs Nielssen and Wilcox that he requested the medication on four consecutive days after that and that his negative thoughts about the deceased and his former girlfriend ceased. Psychiatric evaluation 27 Mr Maissin presented to both doctors with unimpaired intellectual functioning and was able to maintain concentration and engage with them in a meaningful dialogue. While he did not exhibit all of the symptoms characteristic of schizophrenia, namely disordered speech or restricted emotion or amotivation, they noted other symptoms typical of that illness, particularly the existence of persecutory and delusional beliefs. 28 In light of the information Mr Maissin gave to the doctors and the information contained in his hospital records, both doctors were of the view that he currently suffers from an underlying psychotic condition, namely schizophrenia, which although exacerbated by drug use, was not causally dependent upon it. This is a diagnosis which is confirmed by Mr Maissin's behaviour since his incarceration. It is the considered view of the doctors that anti-psychotic medication prescribed while he was an inmate of the Rozelle Hospital at the time of the killing was not sufficient to control his symptoms and, further, that because the treating doctors at Rozelle Hospital regarded his symptoms as primarily drug-induced, his sudden request for medication on the day of the stabbing was not recognised as a sign of relapse or a reason to review his risk status. 29 Dr Wilcox added a differential diagnosis of a delusional disorder of a persecutory type. According to Dr Wilcox: "The reason for considering such a diagnosis is that there has been an absence of the typical deterioration of cognitive, affective or social functioning usually associated with schizophrenia." 30 The doctors were also of the opinion that Mr Maissin suffers from a substance abuse disorder currently in remission. Finally, Dr Wilcox also noted that Mr Maissin suffers from generalised epilepsy. 31 So far as Mr Maissin's future prospects are concerned both doctors were of the view that he should be maintained on anti-psychotic medication indefinitely and that caution must be exercised when reviewing his security needs at any time in the future. Dr Wilcox observed that an attempt to remove his anti-psychotic and anti-epileptic medications for diagnostic purposes resulted in several unprovoked violent incidents directed at staff and other inmates. 32 I note that Mr Maissin is on a management program that is aimed at his gradual reintegration into the ward population but that he should be closely monitored with regular risk assessments. 33 I accept Mr Maissin's deep regret at having killed his friend as genuine. The tragedy in this case is compounded by the fact that the deceased was himself detained, being in need of psychiatric care, in the interests of the protection of the wider community. I understand that the deceased has family that survive him. The Court extends its sympathy to them. ********** 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.