R v Hevesi-Nagy [2009] NSWSC 755

New South Wales Supreme Court

CITATION : R v Hevesi-Nagy [2009] NSWSC 755

HEARING DATE(S) : 13,15,16,17,20,21,23,27 July 2009

JUDGMENT DATE : 3 August 2009

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

DECISION : Direct entry of judgment of manslaughter on the charge in the indictment.

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Trial by judge alone - Indictment charging murder - Whether accused substantially impaired - Psychiatric opinion - Other facts - Verdict in accordance with accepted psychiatric evidence

LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986

CATEGORY : Principal judgment

PARTIES : REGINA - Crown Augusta HEVESI-NAGY - Accused

FILE NUMBER(S) : SC 2008/14152

C Maxwell QC - Crown COUNSEL : (1) A Webb SC - Accused (2) J Spencer

Director of Public Prosecutions - Crown SOLICITORS : (1) Legal Aid Commission - Accused (2) Sten & Co

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

MICHAEL GROVE J

3 August 2009

2008/14152 REGINA v Augusta HEVESI-NAGY

JUDGMENT 1 HIS HONOUR: The accused is indicted on a charge of murdering John McCann on 30 December 2007. The necessary steps were taken to implement an election by her and the consent of the Director of Public Prosecutions so as to require that she be tried without a jury. Those steps being taken the Court does not possess an overriding power to direct trial by jury. 2 I record that, after the close of the evidence, the accused withdrew her instructions whereby counsel and solicitor who had appeared to that point ceased to act. New counsel and solicitor appeared and application was made in effect to permit the accused to reverse her election and to be remanded for trial by jury. In an exchange with counsel, I pointed out that the express terms of s 132(5) of the Criminal Procedure Act which permitted a change of election before the date fixed for trial suggested an absence of capacity for an accused to reverse an election after that date. The application was not further pursued. 3 Upon arraignment the accused pleaded not guilty to murder but guilty of manslaughter. The Crown Prosecutor declined to accept that plea in satisfaction of the indictment. 4 The death was a consequence of a joint attack by the accused and her son, whom I will refer as to JH, who was then aged fourteen years and eleven months. There has been no significant contest about the facts of the killing and a great volume of material was put before me by consent. Included were compact disks and transcripts of lengthy interviews on 3 January 2008 successively conducted by police with JH and then with the accused. Although the accused initially gave a version of events including falsehoods such as "(the deceased) came out with, with an axe and a knife. He came towards us …" (Q 367). She later stated that she "wanted to confess" (Q548). 5 From the evidence I am satisfied of these facts. In mid 2007 and following, discussions between the accused and JH culminated in an agreement that they would kill John McCann who was JH's father. There had been over years extensive litigation in particular concerning access contact by his father with JH who lived in the custody of his mother. I will later refer to other aspects of the relationship between mother and son, however, they shared a desire to obstruct and if possible terminate contact between JH and his father. 6 At the relevant time, the accused and JH resided in Maitland. Mr McCann lived in Schofields. A visit to Schofields was arranged to take place on Saturday 29 December 2007 for the purpose of JH collecting a parrot, which his father no longer wished to keep and was to give to him. Some time prior to the visit the accused made visits to a store in Maitland and purchased first a hammer, and later a tomahawk. 7 On 29 December the accused and JH set off with a bag which contained, inter alia, the tomahawk, a knife, a rope and disposable gloves. They travelled by public transport. They did not alight from the train at Schofields Station because they were able to see from the train an additional car at the residence and it was thought by them that other visitors may be present at the house. They travelled on to Richmond and returned to Schofields later, arriving at the house after 8 pm. 8 They were welcomed upon their arrival by Mr McCann. During the evening, the accused administered some non prescription drugs to him for the purpose of inducing him to sleep soundly. Ultimately, she and JH fell asleep on a lounge and Mr McCann went to sleep in his bedroom. In the early hours of darkness on 30 December the accused and JH awoke. They armed themselves and approached the sleeping victim. The first blow was struck to the chest by the accused with the tomahawk. This caused the victim to awake and he attempted to fend off his attackers. The accused struck other blows with the tomahawk but she lost possession of it. In the meantime JH stabbed his father with a knife. 9 After their attack, the accused and JH fled. The victim had acquired the tomahawk and although multiply wounded he sought to pursue them. They retreated into a bedroom and locked the door. They discarded gloves and the knife and JH knocked out a window in an adjacent toilet through which they climbed and ran from the area. 10 One of the wounds inflicted by the knife was to the right thigh. It passed through skin and muscle and penetrated Mr McCann's femoral artery. The report of the examining pathologist, Dr Langlois, to the coroner stated that "death resulted from a stab wound to the right thigh. It would be unreasonable to consider any other cause of death". I deduce that such an injury would result in fatal blood loss. I note that Dr Langlois added, after referring to other findings, that a cut through muscle which fractured the ninth rib was probably caused by an axe like implement. Other wounds lacked sufficient characteristics to determine confidently whether they had been caused by a knife or a less sharp heavy implement. It is clear that the specific fatal knife thrust was made by JH but it is equally clear that the accused and he were engaged upon a joint enterprise of which the object was to kill John McCann. It was achieved by the attack upon him. I am conscious that the accused claimed that the idea to kill had emanated from JH, that she acted in his interest and that at the critical time she was reluctant to continue. However she did so and her culpability as a joint participant in the killing is plain. 11 I am satisfied to the necessary standard that the accused and JH each harboured an intention to kill John McCann and that he died as a result of the wound inflicted in the attack upon him and that, subject to issues concerning mental responsibility, the culpability of the accused for the crime of murder has been established. I observe that it was not suggested at any time during the trial by either counsel who appeared for the accused that I should find otherwise. 12 The real issue litigated has been the mental condition of the accused at the time of the killing. 13 Before turning to that issue, I turn to matters of allegation which have been made concerning the deceased Mr McCann. 14 In the course of the hearing, evidence was received detailing allegations particularly by JH concerning his father. These included bizarre assertions such as JH claiming that he was forced to eat his own vomit, that his father put poison in his cereal and as well there were descriptions of his being subjected to violence of various kinds. JH has been found unfit to plead to a charge of murder for his participation in the killing by reason of his mental infirmity. The evidence also includes a report from Dr Allnutt, a psychiatrist who examined JH. He reported that JH manifested delusional beliefs of a persecutory nature concerning his father. These allegations have been recounted in the proceedings against the accused but it should be observed that they are the products of a deluded mind and no credibility can be attached to them. 15 It is also appropriate to make some observations and findings concerning allegations emanating from JH and from the accused concerning violent behaviour attributed to the deceased. 16 As was encapsulated in a question to Dr Wilcox by counsel then appearing for the accused, the assembled material showed that, apart from the relationship with the accused, the deceased had previously been married and that union produced three children, one of whom had pre deceased him as a result of cancer. The marriage ended in divorce. Thereafter Mr McCann from time to time was engaged in "substantial significant" relationships with four other women. In not one instance was there any allegation of violence towards one of these women or towards any of their children. 17 Both the accused and JH made reference to the deceased having "raped" the accused. Although it was sometimes said that this had happened more than once, the evidence shows that on one occasion only as a result of complaint by the accused, the deceased was charged with sexual assault. This was said to have occurred in January 1994. The documentation which includes a statement by the accused shows that on the occasion consensual sexual intercourse took place between her and Mr McCann. The gravamen of her complaint at the time seemed to relate to accompanying acts. The deceased was interviewed by police and he described the acts as "not unusual or abnormal for any of the activities" in which they customarily engaged during intimate relations. 18 The charge against the deceased terminated when he pleaded guilty to common assault. In his remarks on sentence the presiding judge noted the limited facts, the express concession that the Crown did not maintain that intercourse between the parties was non consensual and the nature of the excessively vigorous actions by the deceased which for the purpose of the charge constituted the assault. He was released upon a bond in the sum of $100 to be of good behaviour for twelve months. 19 I find that there is no reasonable basis upon which what occurred in January 1994 could be described as a "rape" of the accused. Neither am I satisfied that as matters of fact the deceased conducted himself violently in the way as alleged by JH or by the accused. 20 The principal focus of the issues with which I am required to deal has been upon whether the accused should be found not guilty by reason of mental illness or whether she should be found not guilty of murder but guilty of manslaughter by reason of substantial impairment in accordance with what is legislated in s 23A of the Crimes Act 1900. 21 It is convenient to mention at this point that in a report by a psychiatrist, Dr Furst, he opined that culpability of the accused might be reduced by reason of excessive self defence as permitted by s 421 of the Crimes Act. Dr Furst was retained to assess the accused by her own representatives and in oral evidence affirmed that he adhered to his expressed view about excessive self defence. No submission relying on this part of his opinion was made by counsel and the proposition was not embraced by either of them. 22 In a history given to Dr Furst there is recorded an unelaborated quote said to emanate from the accused which suggested that she was scared for her son's life when he was in his father's care. This is somewhat of an exaggeration when compared with what she told police namely that she was "worried" about JH (Q427) and she expressly agreed that she herself did not fear any physical harm at all (Q965). 23 The accused did not assert to police that she feared harm to her son and that was the reason for killing, rather when asked, she said she wanted JH to have "a choice in life, what he wanted to do without someone always threatening to take us back to court" (Q699). 24 I am not satisfied that the accused believed that killing the deceased was necessary to protect JH and I reject Dr Furst's opinion in that regard. 25 In order to determine the issues of mental illness and/or substantial impairment I have been assisted by the reports and oral evidence of two psychiatrists, Dr Furst abovementioned and Dr Wilcox who was retained by the Crown to consider the material and to examine and report upon the accused. Dr Furst opined that the accused harboured beliefs which amounted to a delusional disorder and that she was unable therefore to reason about the wrongfulness of her actions with a moderate degree of sense and composure in a moral sense and that she (and JH) felt justified in the circumstances as perceived in killing Mr McCann. Dr Wilcox did not agree with this opinion. In short, she opined that whilst the actions of the accused may have been initiated by some form of shared delusional disorder they were carried out primarily as a result of the pathological enmeshed relationship which she had with JH. Dr Wilcox did not believe that the accused ever felt that her actions in joining in the killing were justified in the circumstances. 26 I observe that, in final address, counsel for the accused made no submission about what I might refer to conveniently as the M'Naghten defence but simply drew my attention to the conflicting views expressed by the two psychiatrists just mentioned. 27 As I shall later record, I am satisfied that at the relevant time the accused suffered from a relevant abnormality of mind being a delusional disorder although the precise ingredients of this are difficult to define having regard to my further finding that expressions by the accused were from time to time inspired by intentional deceit. Be that as it may, even if the abnormality of mind be classified as a defect of reason, the accused frequently conceded in the course of her police interview that she knew that it was wrong to engage in the killing of Mr McCann and, without a need to depend upon discharge of the onus of proof by the accused, I am satisfied by the context of her statement that she knew it was wrong in the moral as well as the legal sense. In reaching that conclusion I am considerably fortified by the opportunity to view her concessions of her appreciation of wrongness during the lengthy visual recording of the interview of the accused by police. 28 Insofar as the issue was raised by evidence advanced on behalf of the accused, I find against the proposition that she should be found not guilty of murder by reason of mental illness. 29 As can no doubt be deduced from the foregoing, the essential debate at trial revolved around what I will call for brevity substantial impairment. 30 I intend no disrespect to the careful submissions by the Crown Prosecutor by summarizing them as amounting essentially to two propositions. First, that I would not be satisfied that the accused has proved on the balance of probabilities that at the time of the killing she was suffering from an abnormality of mind arising from an underlying condition. That is to say in the context of this case, that the operative matter affecting the accused at the time was the pathological enmeshed relationship with her son which does not constitute an abnormality of mind arising from an underlying condition as distinct from a diagnosable delusional disorder. Second, if I were to find in favour of the accused on that issue, any impairment should not be assessed as being so substantial as to warrant her liability for murder being reduced to manslaughter. 31 As I shall later point out, on the issue of substantial impairment there is some commonality of view in the expert opinions of Dr Wilcox and Dr Furst. It is correct, as the Crown has submitted, that as a tribunal of fact I am not bound to accept the opinions of psychiatric professionals but, obviously, were I to reject such opinion I would need to have good reason so to do. As is almost invariably the case in such matters, the opinion expressed by the psychiatrist is, to varying extent, and depending on the circumstances, dependent upon the recounting of history by the accused. The Crown argues that an examination of the whole of the circumstances which can be derived from the evidence looking at times before, during and after the killing would so undermine the opinion postulating substantial impairment that a verdict of guilty of murder should be returned. 32 It is, of course, the principal submission on behalf of the accused that I should return a verdict of not guilty of murder but guilty of manslaughter by reason of substantial impairment pursuant to s 23A of the statute. 33 I have already mentioned the discussions between the accused and her son about killing the victim which discussions commenced about six months before it took place. I have also made some mention of the preparations before the journey to Schofields on 29 December and the occurrences in the early hours of the following day when Mr McCann sustained the fatal injury. 34 The accused (and JH) were arrested on 3 January 2008 in Maitland. When formally interviewed by police on the night of 3-4 January, the accused initially gave a version of events which included express negative assertions denying that they brought the tomahawk and knives from Maitland and a claim, to which I have made earlier reference, that it was the victim who attacked the accused and JH "with an axe and a knife" and that the blows struck by her were in defence of JH. 35 Upon revelation by police that they had information that the tomahawk was brought in the bag (from Maitland) it is plain that the accused realised that JH had given a different version of events to police. 36 Even so, the accused did not entirely abandon her attempts to deceive. Although she then agreed that she had purchased the "axe" she claimed that the purpose was to injure and scare the victim because JH would "never be free of him" (Q485). A plan to injure or scare was quite contrary to the later admitted discussion as early as in June 2007 about killing JH's father. 37 However, shortly after this statement, the accused indicated that she wanted to confess. In what she claimed was the truth she described making a "pinkie" promise with JH that she would use the axe to kill his father and that he (JH) would have a knife to kill him. A "pinkie" promise (I gather made by joining little fingers) is a promise which the accused maintained, obligated fulfilment. 38 I interpolate that viewing the picture recording of the interview presents the accused making an apparently confident articulation of the version of events in which she portrays the victim as the aggressor until she later abandoned that story. 39 Apart from the prevarication during the initial stages of police interview there are other deceptions by the accused which should be assessed in determining whether or not the psychiatric opinion is sufficiently reliable to discharge the civil onus of proof resting upon the accused. 40 Sometime after 4.30 am on Sunday 30 December in the course of their flight from the victim's house they awakened Mr and Mrs Clarke, who were resident at Schofields in nearby premises. The accused told Mrs Clarke "someone was trying to kill us" and that she was the victim of "domestic violence". However she rejected the suggestion from Mrs Clarke that the police ought to be called. 41 Although she was in Dubai at the time Lynda Groch, who had already received some information from a Mr Casey, spoke to the accused by telephone on the afternoon of Sunday 30 December. The accused told Ms Groch that she had been attacked by her Chinese landlord with a machete and knives. She again rejected advice that the appropriate course was report to police. 42 On that same afternoon Stephen Balcombe, an employee at Coles Express (a store attached to a service station adjacent to the premises where the accused resided in Maitland) was told something by another employee and later spoke to the accused who said that they had been attacked by JH's father and she had responded by hitting him with an axe and that JH had stabbed him. 43 On Thursday 3 January, the accused was again in the Coles Express shop and spoke to another employee Ms Johnson. She told her that she had done something terrible and then her attention was drawn to a newspaper article about the incident. She said that the victim had been alive when she left. That is probably true but the accused went on to describe the victim as having attacked JH with a knife and she elaborated: "I jumped in to protect (JH). During the struggle (JH) got the knife and cut him to the throat and through the chest and I cut him on the other side. He was still alive when we left. We didn't kill him. It must have been the other child who lives there. He cut (JH) to his arm." 44 On the evening of Sunday 30 December the accused told Michael Groch (Lynda Groch's father-in-law who was house sitting whilst she was overseas) that the victim had been attacking her with knives. She claimed that JH had been cut but Mr Groch made an inspection of him and was unable to see any injury. 45 On the morning of 3 January the accused was in the office of Mr Campbell, a real estate agent. She told him that she had been in "a bit of trouble" and said that the victim had an axe but she jumped in front of her son who stabbed his father with a knife, as a result of which he dropped the axe which she then picked up and hit him with it. 46 The Crown has submitted that, in particular, the above series of prevarications and exaggerations would operate to counter any reliance upon assertions that the accused killed the victim by reason of a delusion or delusions that she and/or JH were in danger from violence which might be meted out to them by Mr McCann. 47 As well as psychiatric opinion, there are some observations of people who are acquainted with the accused which are of assistance in determining whether that opinion should be accepted or rejected. Peter Hevesi-Nagy is a nephew of the accused. His contact with her has been intermittent but has been over a long period. His early memories are of his aunt behaving in overly juvenile fashion when she was a teenager and he had memories of her speech being slow. Although she was born in Australia, she spoke with a mixed Hungarian/Australian accent. His overall impression was that his aunt was "a mixed up and confused person" whose actions were "not normal to me". Mr Heaney, the Deputy Principal of a school which JH was attending found the accused "difficult to communicate with". On one occasion she complained of JH having been sexually assaulted by other students but Mr Heaney's investigation showed that it had been "more a matter of minor physical violence". The accused would not accept that result. 48 Stephen Balcombe abovementioned said that the accused was a very frequent visitor into the store and that often he saw her up to half a dozen times a day. He said that on 30 December when he saw her he thought she appeared "a bit spaced out" but said this was "very normal" for her as he found her "always strange" in her actions. 49 Ms Johnson also abovementioned as another employee of the store thought that the accused was "a bit quirky" and came across as very gullible. 50 I add that relayed information conveyed that the accused had frequently presented to a general medical practitioner, Dr Cooper, with somatic symptoms and that she could become fixated on one of these symptoms. Although Dr Cooper did not believe that she had expressed delusional or strange beliefs to him, he thought that she was "unusual" and that she and JH were socially isolated. 51 In addition to the foregoing which on one view might be regarded as merely snippets of information, in order to assess the issue being debated it is necessary to give account to the extraordinarily protracted proceedings which occurred between the accused and Mr McCann. As well as formal litigation there were occasions of counselling and attempted mediation through the various ancillaries to the Family Court structure. 52 As earlier observed, it is plain that the accused was resisting any attempt by JH's father to involve himself with the child. At one point she claimed that she was JH's "whole life" and I am satisfied that she also was aiming at making JH into her own "whole life" in particular to the exclusion of his father. 53 I note that the overall impression of the Family Court mediator was that the deceased's concern primarily focussed on the welfare of JH. It was also noted that although JH expressed animosity towards his father and repeated descriptions of both bizarre and violent conduct having being encountered when he was with his father, when he was interviewed in the absence of his father or in the presence of his father the Family Court official observed no sign of any apprehension of him on the part of JH. In 2003 a specific investigation team at Newcastle made enquiries and reported that the deceased appeared to have JH's wellbeing as a priority. 54 I have mentioned that JH has been found unfit to plead to a charge of murder. Reports of Dr Allnutt which were put before me indicate that he is of statistically low mental ability as well has having the diagnosed mental illness at the time of the killing. The overall investigations by Community and Family Court facilitators strongly suggest that Mr McCann may have recognized a need for his son to need caring and encouragement within the limits of his abilities and he may well have recognized the unhealthiness of the socially isolated situation into which the accused was taking the child. His persistent attempts to maintain access to his son would be consistent with that suggestion. 55 To the extent that some observations by a psychologist Ms Starkey might be seen as unfavourable to the deceased, it should be observed that Ms Starkey appeared to have somewhat uncritically accepted the matters reported to her about the deceased from JH and, as I have said, these were delusions and to the extent that they were reported by the accused it needs to be determined, if possible, which could be distinguished as delusions or prevarications or exaggerations. 56 I am satisfied that some incidents described by the accused had been false to her knowledge and therefore were not delusional. She claimed to Dr Wilcox that she had seen Mr McCann make JH ingest vomitus and she had seen him place JH in boiling water. Neither of these things happened. There has been no suggestion that the accused was hallucinating or having visual delusions and what she told Dr Wilcox must have been knowingly false. 57 On the other hand, some of her persistent claims of mal treatment of JH by his father as reported by him seem to stem from her unshakeable belief that JH would never lie to her. 58 As Dr Wilcox stated in her first report, the history is complex and, before she had been able to access information regarding JH's mental status, she perceived the pathological enmeshed relationship between the accused and her son. At that time she expressed the opinion that there was a degree of diagnostic uncertainty. 59 That same uncertainty appears in the Justice Health records which, of course, commence after the accused was taken into custody. Dr Shannon saw the accused shortly after she was arrested. She thought that the accused may have been mentally unwell and she tentatively diagnosed delusional disorder. She recommended medication which the accused did not take. I note that the accused did not and does not accept that she is mentally unwell. 60 Dr MacKay saw her on 10 January 2008. He thought she was eccentric and that she presented as "possibly psychotically ill". 61 Dr Jones saw her on 30 January 2008. He then found "no actual mental health issues" but on a further assessment on 21 August 2008 he commented on her odd affect and, although he still thought diagnosis was unclear, he thought a delusional element was likely. 62 Dr Martin saw the accused on 4 February 2008 and again on the 22nd of that month. He did not think she was "obviously psychotic" but he "wondered about" obsessional traits. 63 A psychiatric registrar (Dr Meha) saw the accused on the day after Dr Jones, a consultant psychiatrist reported that a delusional element was likely but thought that there was no evidence of depression or psychosis. 64 I return to the opinions of Dr Wilcox and Dr Furst who provided the principal psychiatric opinion. I do not overlook the discussion about folie a deux but an analysis on the possibility of existence of this rare syndrome would not seem to me to resolve the issue that must be determined. 65 As earlier mentioned, Dr Wilcox talked about the history being complex. The conclusions which I have reached that some of the things said by the accused have been exaggerations and prevarications engender some scepticism about the existence of delusions. It cannot be overlooked that advancing the matters which are now sought to be identified as delusions are entirely supportive of her aim to disengage her son from any contact with his father which aim was frustrated by court access orders. 66 Although I have some reservation about the opinion on the issue of substantial impairment expressed by Dr Furst having regard to my inability to accept his opinion about the defence of mental illness (and his observations about self defence) I find no such inhibition in relation to the opinion expressed by Dr Wilcox. 67 When she referred to the initiation of the actions of the accused by some form of shared delusional disorder but carried out primarily as a result of the pathological enmeshed relationship with JH it is significant that even at that stage she did not reject the existence of delusion. With specific reference to the defence made available by s 23A of the Crimes Act she noted the possibility of an underlying condition which she described as "probable shared delusional disorder" which was not of a transitory nature. She thought that the capacity of the accused to control herself would have been substantially impaired. I have noted the Crown submission that, whilst delusional disorder is a diagnostically relevant condition a pathologically enmeshed relationship with another is not, of itself, of the same quality. Dr Wilcox was not insensitive to this matter and in her second letter of 9 July she expressly sought access to review the psychiatric reports relating to JH. These were supplied. In her final report she stated: "It is now also probable that Ms Hevesi-Nagy has a separate psychotic illness most likely a delusional disorder of a persecutory nature and that due to the enmeshed and dependent nature of her relationship with her son they may have shared delusions. In conclusion I feel more confident in stating that the above conditions qualify as an abnormality of mind and would have substantially impaired Ms Hevesi-Nagy's capacity to control herself."