Supreme Court New South Wales Medium Neutral Citation: R v Niazi [2011] NSWSC 907 Hearing dates: 16/08/2011 Decision date: 18 August 2011 Jurisdiction: Criminal Before: FullertonJ Decision: Not guilty of murder by reason of mental illness Catchwords: CRIMINAL LAW - murder - judge alone trial - not guilty by reason of mental illness Legislation Cited: Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: The Crown Basir Ahmad Niazi (Accused) Representation: S Huggett (Crown) M Austin (Accused) Director of Public Prosecutions (Crown) Legal Aid Commission of NSW (Accused) File Number(s): 2010/239129 Judgment 1On 17 July 2010 the accused was charged with the murder of his mother, Mrs Gulghutaie Niazi. She died from multiple stab wounds to her head, neck and chest inflicted by the accused in a frenzied attack against which she had no defence. 2On the morning of 17 July 2010 the deceased left the family home at Regents Park with her daughter at around 7.30am to share the morning meal with her elderly mother at Auburn, as was her custom. The accused did not accompany his mother and sister that morning. He arrived at his grandmother's home around 11.30am armed with a knife. When his mother went outside to speak with him she was fatally attacked. She was attended by an ambulance at 12.02pm after a call was placed to emergency services by those who witnessed the attack. She was not able to be revived. 3The accused left the scene immediately thereafter on foot but was arrested by police soon after wearing blood stained clothing. His description was broadcast over the police radio. He was taken to Auburn police station where he agreed to be interviewed. He declined the assistance of a support person. He admitted to killing his mother with murderous intent. 4It is not necessary to extract any part of the extensive questioning by police. Suffice to note that the accused described a fraught relationship with his mother infused with what I am satisfied was a persistent and delusional belief that she had caused him sexual harm as a child and that she was intent on causing him sexual harm in the future and that he decided to kill her to stop her from harming him. 5The accused denied to police that he was hearing voices or that he acted subject to others directing him to kill his mother. In effect he claimed a genuine belief that his mother had sexually mistreated him and would continue to do so. This was later contradicted in the course of clinical conferences with both Dr Nielssen, retained to prepare a psychiatric report on behalf of the accused, and Professor Greenberg who was retained by the Crown. When confronted by Professor Greenberg about his denial to police that voices were directing him to kill his mother he said he did not tell the police on his arrest, or other health care professionals before the killing, because he did not want to be detained again as a mental patient. 6The questioning by police over some hours was careful and measured in obvious recognition of the fact that the accused was, or was likely to be, mentally ill given the account he gave of the killing and his florid state at the arrest and throughout the interview and therefore in need of urgent medical intervention upon being remanded in custody pending his trial. 7The accused has been treated for schizophrenia with antipsychotic medication as a forensic patient at Long Bay Hospital since his arrest. 8With the consent of the Crown, the trial of the accused was set down without a jury pursuant to s 132 of the Criminal Procedure Act 1986. 9On his arraignment he pleaded not guilty to the murder of his mother. Through his counsel he maintained that plea before me on the grounds of mental illness as provided for in s 22 of the Mental Health (Forensic Provisions) Act 1990. 10The sole issue in the trial before me was whether I am satisfied he should be acquitted of murder on the grounds of mental illness pursuant to the provisions of s 38 of the Mental Health (Forensic Provisions) Act . 11No oral evidence was called in the proceedings by either the Crown or the accused. By consent, and without objection, their respective cases were the subject of the joint tender of a volume of material comprising recorded interviews with the accused conducted on 17 July 2010, a recorded interview with the accused's older brother conducted on 27 July 2010 and a post mortem report. Statements from a number of doctors and community heath care workers were also tendered in connection with the accused's previous admission as a scheduled patient to a psychiatric care facility between March and May 2010, together with a review of his conduct whilst subject to a Community Treatment Order upon his release from that facility over successive months leading up to the day of the killing in July 2010. 12Given the nature of the proceedings, the critical documents were the reports of Dr Olav Nielssen dated 9 February 2011 and the report of Professor Greenberg dated 25 March 2011. These reports reflect a uniformity of opinion that when the accused killed his mother he was suffering from a mental illness - namely acute paranoid schizophrenia - which deprived him of the capacity to consider the moral or legal consequences of his behaviour. 13It would appear that he was first diagnosed with schizophrenia after his admission into a psychiatric facility as an involuntary patient under the Mental Health Act 2007 in March 2010 after assaulting his mother and threatening her with a knife. The accused was detained until his release subject to a Community Treatment Order on 5 May 2010. This was his second admission to the same facility. In an earlier admission for two days in February 2010 he was also detained subject to the Mental Health Act . He was treated on that occasion as a mentally disordered person and provided with intensive psychiatric care as a result of a high risk of aggression and absconding. Chronic cannabis abuse was identified to be a likely contributor to the accused's mental illness. There is also a family history of mental illness. 14Until relatively recently the medication prescribed by Justice Health following his remand was consistent with what he was prescribed upon his release from the mental health facility in May 2010, albeit in an elevated dose and administered orally on a daily basis. While the accused was subject to supervision under a Community Treatment Plan between May and July 2010, a plan which was designed to facilitate his assimilation into the community and his reintegration into family life, the drug was administered in a light dose on a fortnightly basis and by injection. 15I note that in discussing the potential for her son to be released into the community in May 2010 that the accused's mother met with treating doctors within the facility and expressed her desire to have her son returned to the family. She was optimistic that he had made good progress in the hospital, that he was making plans for future study and that he would maintain drug counseling and adherence to a medication based treatment program. It would appear that his progress was appropriately monitored by a team of community health workers on a fortnightly basis between May 2010 and July 2010, that he was reviewed at appropriate intervals by his treating doctor and that he was compliant with his treatment regime. 16His last injection prior to the killing was on 14 July 2010. On that day the accused reported to a health care worker being worried about a forthcoming court appearance and fearful of going into jail. He was asked whether he was using drugs. He is reported as walking away, smiling. 17On the same day his mother attended the Community Mental Health Service at Auburn and expressed her concerns about her son's mental state. She reported that he was angry and agitated and withdrawing from family meals. The day prior to her death she reported that her son was "making fun of her", "not wanting to help" and that he was out all hours of the night without telling her of his whereabouts. She expressed a well-founded fear that his deteriorating or changed mental state might be because he had resumed illicit drug taking. She was advised to call for assistance in the event that his mental state deteriorated further over the forthcoming weekend. Tragically, she died at around midday on Saturday 17 July 2010. The accused's sister told police that having seen the accused arrive at his grandmother's house and being desirous of encouraging him to join with the family for breakfast, her mother went out to greet him. 18On the materials available to me, in particular the considered professional views of both forensic psychiatrists, there is no obvious explanation for the onset of the acute psychotic episode on the morning of 17 July 2010 which, accompanied by the paranoid delusions and auditory hallucinations which both experts found active at the time, gives context to the accused killing his mother in such a brutal and frenzied fashion. 19At the time of preparing his report in February 2011 it was Dr Nielssen's view that the accused's condition was chronic and partly treatment resistant. He noted however that the accused had recently commenced treatment with a new antipsychotic medication that was likely to result in a reduction in the severity of his symptoms and an improvement in his intellectual functioning over time. At the time of the consultation with Professor Greenberg some weeks later, the accused reported compliance with the new pharmacological regime and gave an account of his then current mood and insight into the circumstances surrounding the killing of his mother that would suggest that the new treatment might be effective in the way that Dr Nielssen predicted. I note, however, that while he reported to Professor Greenberg that he now appreciates that the voices that had directed him to kill his mother were "just in his head" he went on to report that "the voices were now telling him that he is going to die". In the course of the proceedings before me his counsel informed me that his client was unable to meaningfully participate in the proceedings because of "hearing voices". The accused also persisted in recounting to Professor Greenberg the delusional belief that he was a victim of child sexual abuse by female family members with the connivance or agreement of his mother. 20At the time of her death the deceased was aged 54. The accused was aged 24. The accused's parents migrated to Australia from Afghanistan in 1985. He was born in Australia the following year. His parents divorced in 1997. The accused was educated in a State primary school and then a State high school after which he obtained work repairing chainsaws for a short time before he was terminated for a lack of diligence. He did not adapt well to a working life. He was unemployed for lengthy periods. 21There is an added dimension to the tragedy that has befallen the Niazi family by the death of Mrs Niazi in the circumstances that I have outlined. It would appear from the detailed information the accused's brother gave to police, that after the accused was released from the mental health facility in May 2010 the violent and threatening displays of aggression directed at his mother, the very conduct that had precipitated his admission, was replaced by a loving dependence upon her and heartfelt expressions of deep regret at having hurt her. It would also appear that he was reunited with his grandmother, who regarded the accused as her favourite grandson. It was of course outside his grandmother's home that he killed his mother exposing his grandmother and his sister not only to the shock of her death but the horrifying manner in which she died. I am informed by counsel that his family have abandoned him and he has no retained friendships from his youth. That is an added tragedy. 22In accordance with established principle and as expressly provided for in s 38 of the Mental Health (Forensic Provisions) Act , I find the accused not guilty of murder by reason of mental illness. 23I make the following orders by consent: 1. I order that the accused be detained at the Long Bay Prison Hospital in accordance with s 39 of the Mental Health (Forensic Provisions) Act , or such other place as may be determined appropriate by the Mental Health Review Tribunal in accordance with Part 5 Division 2 of the Mental Health (Forensic Provisions) Act until released by due process of law. 2. I direct that the Registrar notify the Minister of Health and the Mental Health Review Tribunal of the terms of this judgment and the orders I have made and that the Tribunal is provided with copies of the materials tendered in the proceedings. ********** 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. Decision last updated: 22 August 2011