Supreme Court New South Wales Medium Neutral Citation: R v Waszczuk [2012] NSWSC 380 Hearing dates: 19 April 2012 Decision date: 04 May 2012 Jurisdiction: Common Law - Criminal Before: Davies J Decision: 1. I find that the Accused Martin Jan Waszczuk is unfit to be tried for the offence of the murder of Jan Waszczuk on 25 May 2009. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act. 4. I direct the Court Registry to provide the following documentation to the Tribunal: (a) A copy of this finding. (b) A copy of any orders made for detention or bail. (c) A transcript of these proceedings. (d) A copy of Exhibit A at this enquiry being the Crown papers which include: (i) A copy of any psychiatric reports tendered to the Court during these proceedings, and (ii) The Crown Case Statement. (e) The other exhibits tendered at the enquiry. Catchwords: CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - further enquiry after determination of Mental Health Review Tribunal that Accused was fit to plead - Accused suffering from schizophrenia including Formal Thought Disorder - Accused has no insight into his mental illness - whether Accused satisfies the requirements that he be able to make his defence and version of the facts known to counsel and the Court - Accused unfit to be tried. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v R (1994) 181 CLR 230 R v Presser [1958] VR 45 R v Waszczuk [2011] NSWSC 212 Robinson v R ([2008] NSWCCA 64 Category: Principal judgment Parties: Crown Martin Jan Waszczuk Representation: Counsel: C Maxwell QC (Crown) In person (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) In person (Accused) File Number(s): 2009/74187 Judgment 1This is a further enquiry held pursuant to s 29 Mental Health (Forensic Provisions) Act 1990 ("the Act") in respect of the Accused Martin Waszczuk. Background 2The Accused, who was born on 10 August 1983 and is now aged 28 years, killed his father Jan Waszczuk on 25 May 2009, with whom he lived, by stabbing him with a kitchen knife and inflicting some 24 stab wounds to his upper back, chest, neck and head. 3After making some vain attempts to clean up what he had done the Accused rang 000 and informed the operator that he had murdered his father. The police attended at the residence, and having seen the Deceased on the kitchen floor, arrested the Accused. When asked if he knew why he was being arrested he replied "Yes, murder one". He was taken to Hornsby Police Station and participated in an electronically recorded interview with the police. During the course of the interview he admitted to having stabbed the Deceased multiple times. He gave a description of his attempts to clean up the scene and then decided it was futile so he decided to ring the police. 4When asked by the police about his state of mind or intention at the time of stabbing the Deceased he declined to comment. He declined to say whether he had on earlier occasions entertained thoughts of killing the Deceased or whether he believed what he had done was wrong or whether he had any remorse for what he had done. 5The Accused had previously been committed to a mental health institution on two occasions and following discharge on the second occasion he had remained in the care of the mental health and other medical staff associated with Hornsby Hospital. He had been diagnosed with schizophrenia. 6He was charged with murder. He pleaded guilty in the Local Court and confirmed that plea on arraignment in this Court. 7R A Hulme J undertook a sentence hearing and during the course of that hearing became concerned as to whether the Accused was in fact fit to plead. His Honour stood the matter over to enable a report to be obtained from Justice Health. Before the sentence hearing resumed on 24 March 2011 reports were obtained from Professor Greenberg and Dr Bruce Westmore. 8His Honour then considered those reports and other material and formed the view under s 10 of the Act that an enquiry ought to be held as to the Accused's unfitness to be tried. With the agreement of the parties (the Accused was then represented by lawyers) his Honour immediately embarked upon the enquiry. Having done so he determined that the Accused was unfit to be tried - see R v Waszczuk [2011] NSWSC 212. 9On 30 August 2011 the Mental Health Review Tribunal gave its determination on a review conducted on 9 June 2011 pursuant to s 46(1) of the Act. The Tribunal found, having regard to the expert oral and written evidence presented by Dr Bhattacharyya and the treating team, and the fitness criteria referred to in R v Presser [1958] VR 45 at 48 and Kesavarajah v R (1994) 181 CLR 230 at 245-246, that the Accused was fit to plead to the offence with which he is charged. 10Pursuant to s 29 of the Act the matter came back before Adams J on 2 December 2011 for a further enquiry as to the Accused's fitness. The Crown Prosecutor sought an adjournment from Adams J because there was no further material available to his Honour than had been available either to RA Hulme J or to the Mental Health Review Tribunal. The adjournment was also sought because of a letter that had been written by the Accused (who had withdrawn his instructions from his solicitors) to the DPP. The Crown wished a copy of the letter to be placed before Dr Westmore and Professor Greenberg. The Accused indicated that he was not prepared to be re-examined by those Doctors. The matter was, therefore, adjourned to a date to be fixed so that further reports could be obtained from those Doctors after they had read the Accused's letter. 11Before the matter could be re-fixed for a further enquiry the Tribunal became bound under s 46 to conduct a further review. This it did on 8 December 2011 and issued its determination on 21 December 2011. The Tribunal again found that the Accused was fit to be tried. It did so on the basis of the expert oral and written evidence presented by Dr Eugene Ho and Dr Bhattacharyya. 12The matter came before me for the conduct of a further enquiry on 19 April 2012. The Accused appeared for himself. Further reports were tendered from Dr Westmore of 3 January 2012 and from Professor Greenberg of 6 January 2012. At the time of preparing their reports both Doctors had available to them the letter written by the Accused a little time before 25 November 2011 and the material that was before the Tribunal together with its determinations. In addition, both psychiatrists gave concurrent evidence before me. 13The starting point for the further enquiry is the presumption contained in s 15 of the Act as follows: 15. It is to be presumed: (a)that a person who has, in accordance with this Part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case; ... 14The presumption operates because of the finding of RA Hulme J at the enquiry he conducted under the Part of the Act (Part 2) in which s 15 is to be found. The determinations conducted by the Mental Health Review Tribunal are carried out under Div 2 of Part 5 of the Act and they do not affect the presumption found in s 15. Although it is appropriate that I have regard to those determinations, the further enquiry must be conducted on the basis of all of the evidence before this Court at that further enquiry. 15Both psychiatrists accept that the Accused is acutely mentally ill and that he suffers from schizophrenia which is not controlled at the present time, whether because he is not compliant with his medication (and there appears to be some evidence of that) or because his condition is treatment-resistant. 16Both psychiatrists considered that the letter written by the Accused showed Thought Disorder, which is a symptom of a psychotic illness. The psychiatrists considered, however, that for the most part the Accused's speech patterns did not reflect formal Thought Disorder. Professor Greenberg explains this by saying that because the Accused is intelligent and is very guarded and suspicious in his manner he has the ability to appear coherent by way of speech. However, when his guard is down and he is left alone to his own devices, his written language highlights the underlying thought confusion and incoherence of his thoughts. 17The difference between the two psychiatrists in their reports concerns whether the Accused is fit to plead. Both of them accept that he is fit to plead in relation to most of the requirements of Presser. The difference between them concerns his ability to instruct his lawyers or communicate his version of the facts. 18Dr Westmore's conclusions in his latest report are these: The issues recently raised in relation to Mr Waszczuk are very challenging both from a psychiatric and, I suspect, a legal perspective. It is quite clear, I think, that he cannot give instructions in the written form but, at the same time, I think it is likely he can give instructions verbally. His inability to give instructions in the written form is different from a person who may be illiterate and cannot write because of a lack of education. In this particular case, he cannot write clearly because of his mental illness. His mental illness however is not obviously impacting on his capacity to express himself verbally. ... In relation to his fitness and in the absence of any additional information from his previous legal representatives, in particular what their views were about his ability to provide verbal instructions and what reasons he gave, if any, for dismissing them, then I am of the view that Mr Waszczuk remains mentally ill but fit from a Presser perspective. Ultimately however his fitness, specifically his ability to give instructions, will need to be considered from a legal perspective, with the question being, what weight should be given to an individual's ability to provide verbal instructions as opposed to their ability to provide written instructions. 19On the other hand, Professor Greenberg's opinion in his report of 6 January 2012 is as follows: I remain of the opinion that Mr Waszczuk remains unfit to stand trial and unfit to plead at this time. As stated in my previous psychiatric report on 21 February 2011, Mr Waszczuk understands numerous of the criteria for fitness to plead and stand trial, for example, he understands the nature of the charges and understands in a cognitive manner, the availability of a defence of not guilty by reason of mental illness. He has a capacity to exercise his right if required to do so, to challenge the jurors and understands in a cognitive sense the nature of the proceedings that is enquiry into the veracity of allegations against him. He understands the roles of various parties in Court, including his lawyer and Judge, Jury, witnesses and Crown. However this is a cognitive understanding when it relates to external people and not personally or directly related to him and his psychotic thinking. My concern has always been that Mr Waszczuk refuses to co-operate and is unable to give his version of the facts. He acknowledges the act but refuses to discuss his underlying motivations, thoughts and reasoning at that time of the alleged offence (mens reas). He continues to suffer from acute psychotic symptoms, namely unsystematised delusional beliefs and Thought Disorder (incoherence of thought). My concerns are also therefore related to the fact that because of his mental state he is not able to make his defence and not able to instruct his counsel or communicate his version of the facts to his legal counsel. I therefore remain of the opinion that on the balance of probabilities, he remains unfit to plead and stand trial at this time. 20The requirements from Presser are most conveniently summarised by RS Hulme J in Robinson v R ([2008] NSWCCA 64 at [24] as follows: A person accused needs to be able: (i)to understand what it is that he is charged with; (ii)to plead to the charge; (iii)to exercise his right of challenge; (iv)to understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with; (v)to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities; (vi)to understand ... the substantial effect of any evidence that may be given against him; (vii)to make his defence or answer to the charge. As RS Hulme J noted at [25], Smith J in Presser expanded the final element by indicating that it included giving any necessary instructions to counsel, deciding what defence to rely on and making an accused's defence and version of the facts known to counsel and the Court. 21It is in relation to this aspect that Professer Greenberg has doubts concerning the Accused's fitness. Dr Westmore agrees that if the Accused is to represent himself there would be doubts about his fitness in relation to this area. 22Dr Westmore's doubts in relation to his fitness appear to have arisen from two matters. The first was his Thought Disorder. He said that he has never seen Thought Disorder so dramatically displayed as in this particular case. The second was the fact that he remains very mentally ill with little or no insight into that illness, and the illness at the present time appears to be treatment-resistant. 23In my opinion the evidence establishes on the balance of probabilities that the Plaintiff is currently unfit to plead. My reasons for reaching this conclusion are those following. 24First, the evidence of Professor Greenberg is that because of the Accused's mental state he is not able to make his defence and not able to instruct any legal representatives or communicate to them his version of the facts. Although Professor Greenberg appears to accept that the Accused refuses to discuss his underlying motivations, thoughts and reasoning at the time of the alleged offence, this appears to be because he continues to suffer from acute psychotic symptoms, namely unsystematised delusional beliefs and Thought Disorder. 25In his earlier report of 13 December 2010 Professor Greenberg set out the enquiries he made of the Accused concerning his version of what happened when he killed his father. The reasons the Accused gave for not providing other than a concrete factual version of what physically occurred caused Professor Greenberg to have concerns about whether he was able to give his version of the facts and instruct his lawyers. He went on to say: Should Mr Waszczuk be unable to disclose under solicitor/client privilege his motivation and reasoning for his behaviour at the time period surrounding the alleged offence, I would have serious concerns that he does not have the capacity to give his version of the facts because of ongoing delusional and possible (sic) paranoid delusional beliefs and/or grandiose beliefs. In such a situation, I would have concerns that he would not be able to make his defence and with counsel, to instruct his counsel and to communicate his version of the facts. In such a scenario he therefore would in my view would (sic) be unfit to plead and stand trial. Professor Greenberg reinforced that opinion in his oral evidence by saying that it is because the Accused is at the present time suffering from an acute mental illness that he cannot give his version of the facts. 26Secondly, although Dr Westmore was of the opinion that, generally speaking, the Accused satisfied the Presser requirements, a number of features might produce a conclusion that he was not fit to plead. The most significant was that if the Accused remains unrepresented he would not satisfy the requirement of an ability to make his defence to the charge. Dr Westmore was particularly of that opinion because he had heard the Accused's opening address to the Court at this present enquiry. That address, both the psychiatrists thought, demonstrated some Thought Disorder in his speech. When each had previously seen him on a one to one basis they had concluded that he did not demonstrate Thought Disorder in his speech patterns. 27Dr Westmore thought that what he observed of the Accused at this enquiry caused him to conclude that his Thought Disorder would be a major impediment in terms of his making a defence without proper professional representation. 28Dr Westmore thought also that if the formal Thought Disorder became prominent in the Accused's speech (as happened to some extent in the statement he made to the Court in front of the psychiatrists) Dr Westmore thought that that would compromise his ability to give instructions. I interpolate here that if the accused was represented and was required to provide written instructions to his lawyers (for example, an instruction that he would plead guilty) then issues associated with the Thought Disorder would arise. 29Dr Westmore was also concerned because not only did he conclude that the Accused was acutely mentally ill but that the Accused furthermore did not accept psychiatric opinion that he was ill. He thought that was at least a potential, rather than absolute, impediment to his being able to present a defence. He thought also that to the extent that the Accused was at the point of having an acute episode in his illness he would not be able to give instructions in order to represent himself. 30Dr Westmore thought that if at the time of his trial he was delusional with the result that the Accused thought that he did not have to provide any explanation about what happened at the time of the killing or any description of what happened, that might cause a doubt about his fitness to plead. 31Thirdly, the Accused made it clear that he had chosen not to be legally represented and would not be legally represented because he was dissatisfied with the fact that Legal Aid accepted the view put forward about his mental health. This was a further indication of the Accused not accepting that he had a mental illness. The result is that many of the concerns and fears raised by Dr Westmore will be realised and the Accused would, therefore, be unfit to plead in Dr Westmore's view. 32Fourthly, as I have mentioned, the Accused appeared unrepresented at the enquiry. He made two statements to the Court. The first of these was in the presence of the psychiatrists who, as I have said, commented upon it for the purpose of their opinions. The psychiatrists agreed that there was a measure of Thought Disorder in that statement. In it the Accused asked me to bring an end to the present proceedings on the basis that there was a jurisdictional issue that meant that any proceedings against him should be conducted in Poland. He said he had been in touch with Polish authorities in this regard. He also tendered a handwritten statement and a sealed envelope addressed: To whom it may concern @ Microsoft USA c/o the Supreme Court He did not consent either to the Crown Prosecutor or to me opening the envelope to read the material which he nevertheless wanted to become an exhibit in the enquiry. 33Although the Accused conducted himself in a polite and tempered manner he interjected on a number of occasions while the Crown Prosecutor was both asking questions of the psychiatrists and when he was addressing me. It was necessary for me to explain on a number of occasions that it was inappropriate for the Accused to interrupt or make interjection in the way he did. Ordinarily, the interjection was for the purpose of making a statement contrary to a question asked (he appeared to think that the questions put to the psychiatrists were statements of fact) or submissions made by the Crown Prosecutor. 34Despite the way he conducted himself I have some considerable doubts by reason of what the Accused said in his statements to the Court that he properly understood what he needed to respond to in the psychiatric evidence presented. He appeared to understand that it was necessary to answer what Dr Westmore and Professor Greenberg said but he did so in a way that appeared to be irrational. An example of this is what follows. He said this: In terms of a final summary or commentary on the opinion of Drs Westmore and Greenberg, I put forward in this paper here, which we can read if we have to go there in terms of assessing textual material, it can be read verbatim, but it is not an issue. But one of the points I made there, are either of those doctors qualified to distinguish between a text such as Delusion and Schizophrenia, which is a post modern text with academic credentials and professional level of academic theory versus a so called pseudo intellectual or psychotic text versus other texts such as those with psychedelic theory or new age texts or alternatively other genres, and I would claim that neither of those doctors is qualified to make a distinction between those texts as to pseudo intellectual, psychotic or other status of the material based on the clinical scheme as available which would be inadequate to the case and it would be my claim that the textual material is thus out of the range of Drs Greenberg or Westmore to diagnose and the comment or the opinions of Drs Greenberg and Westmore would tend to assess their own level of conceptual performance with respect to the utterances or material presented rather than any objective assessment of that material. Hence my recourse to a third party to assess the texts, not only the texts presented here, but also via a third party in an overseas jurisdiction as presented to your Honour today. So I believe that would be a more constructive route to pursue and a more objective route and a legally valid and viable route for the continuation of this case for it to progress forward and arrive at some resolution. 35My own observations of the Accused during this enquiry reinforced my acceptance of the opinions of Professor Greenberg and Dr Westmore with regard to the Accused's fitness to plead. 36Finally, it is necessary to say something about the course of events in this matter. It was during the course of a sentencing hearing that RA Hulme J became sufficiently concerned about whether the Accused was fit to plead that, having obtained reports from Dr Westmore and Professor Greenberg, he embarked upon the original enquiry under the Act. He proceeded to find that the Accused was unfit to plead principally on the basis of Professor Greenberg's opinion, but also having regard to the concerns that Dr Westmore also expressed. 37On the further enquiry that I have conducted, I have also chiefly reached my conclusion based on the earlier reports of Professor Greenberg and the most recent reports from both him and Dr Westmore. 38In the determination of the Tribunal of 21 December 2011 there was nothing in the exhibits attached to the determination to suggest that the opinion of Professor Greenberg was before the Tribunal. There appeared to be evidence from Dr Bhattacharyya and Dr Ho who seemed to agree with Dr Westmore's conclusion that the Accused was fit to plead. It is apparent from the conclusion on page 4 of the determination that it was their evidence formed without apparent regard to Professor Greenberg's evidence, nor to what RA Hulme J had said concerning Dr Westmore's evidence in his judgment. 39In the earlier determination of the Tribunal of 30 August 2011 the exhibits disclose that Professor Greenberg's report of 13 December 2010 was considered, as was RA Hulme J's judgment of 24 March 2011. Nevertheless, apart from passing reference to RA Hulme J's judgment in the reasons for its determination the very concerns of Professor Greenberg that led to RA Hulme J's finding of unfitness were not mentioned at all. The Tribunal's determination was reached based on the evidence of Dr Bhattacharyya and the team who agreed with Dr Westmore's conclusion. 40I mention these matters only because it would be unfortunate if, in the light of my present determination, the Mental Health Review Tribunal when it conducted its future reviews gave no consideration to the basis for this Court's determination on two occasions that the Accused was not fit to plead. The result would be that the matter would bounce backwards and forwards by reason of ss 29 and 45 of the Act. 41Accordingly, I make the following orders: 1.I find that the Accused Martin Jan Waszczuk is unfit to be tried for the offence of the murder of Jan Waszczuk on 25 May 2009. 2.In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. 3.Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act. 4.I direct the Court Registry to provide the following documentation to the Tribunal: (a)A copy of this finding. (b)A copy of any orders made for detention or bail. (c)A transcript of these proceedings. (d)A copy of Exhibit A at this enquiry being the Crown papers which include: (i)A copy of any psychiatric reports tendered to the Court during these proceedings, and (ii)The Crown Case Statement. (e)The other exhibits tendered at the enquiry. ********** 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: 04 May 2012