Supreme Court New South Wales Medium Neutral Citation: R v Aliwijaya [2012] NSWSC 503 Hearing dates: 14 May 2012 Decision date: 16 May 2012 Before: McCallum J Decision: Accused found fit to be tried for the offence of murder. Special verdict of not guilty by reason of mental illness returned Catchwords: CRIMINAL LAW - procedure - determination as to fitness to be tried CRIMINAL LAW - murder - trial by judge alone - offence committed whilst accused suffering acute symptoms of schizophrenic illness - consensus between expert psychiatrists as to mental illness defence - defence established Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Supreme Court Rules 1970 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 Kesavarajah v The Queen (1994) 181 CLR 230 R v M'Naghton (1843) 8 ER 718 R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924 Ngatayi v The Queen (1980) 147 CLR 1 R v Rodriguez [2010] NSWSC 198 R v PCB [2012] NSWSC 482 R v Porter [1933] HCA 1; (1933) 55 CLR R v Presser [1958] VR 45 R v Welsh (1996) 90 A Crim R 364 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Mohamed Iqbal Aliwijaya (accused) Representation: Counsel: Mr A McCarthy (Crown) Mr C Smith (accused) Solicitors: Office of the Director for Public Prosecutions (Crown) Andrew Harris & Associates (accused) File Number(s): 2010/106383 Publication restriction: None Judgment 1HER HONOUR: Mohamed Aliwijaya stands charged with the murder of Robson Pham on 24 April 2010. The accused elected for trial by judge alone and was tried by me on 14 May 2012. This judgment records my verdict in the trial, together with my reasons for reaching the verdict. Fitness to be tried 2Before the trial commenced, I determined that the accused was, on the balance of probabilities, fit to be tried for the offence. It was necessary to consider that question because he had previously been found unfit (on 8 August 2011): see R v Mohamed Iqbal Aliwijaya [2011] NSWSC 924 per Hidden J (it appears he has also been found unfit to be tried for a separate offence that is not before this Court). As a result of that finding, the accused was referred to the Mental Health Review Tribunal in accordance with s 14 (a) of the Mental Health (Forensic Provisions) Act 1990. 3Section 15 of the Act creates a statutory presumption that a person who has been found unfit continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case. 4On 13 December 2011, after reviewing the case, the Tribunal gave notice to the Court in accordance with s 47(5) of the Act of its opinion that the accused had become fit to be tried. Section 29 of the Act mandates a further inquiry by the Court as to the person's fitness in that circumstance. 5The question of fitness is to be determined by the judge alone: see s 11(1) of the Act. The determination must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 11(2) of the Act. 6The principles for determining whether a person is fit to be tried are stated in R v Presser [1958] VR 45 at 48 per Smith J. Those principles have since been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at 8 and Kesavarajah v The Queen (1994) 181 CLR 230 at 246.6. In Presser, Smith J said: [An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in a court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. 7The Crown submitted that the Court should be satisfied on the balance of probabilities that the accused was fit, as at the time of his trial, to be tried for the offence. Mr Smith, who appeared for the accused, joined in that submission. 8The evidence relied upon by the Crown on the issue of fitness was the determination of the Mental Health Review Tribunal to which I have already referred together with a report dated 20 January 2012 obtained by the Crown from Professor David Greenberg, forensic psychiatrist, and a report dated 23 April 2012 obtained on behalf of the accused from Dr Richard Furst, consultant forensic psychiatrist (collectively marked Exhibit C). 9The determination of the Mental Health Review Tribunal arose from the Tribunal's fourth review of the case of the accused. In conducting that review, the Tribunal had the benefit of a detailed report from the accused's multidisciplinary treating team. The Tribunal also heard oral evidence from the accused's legal representative, Ms Dalumpines (from the Mental Health Advocacy Service); Dr John Kasinathan, the accused's treating psychiatrist and Ms Lekahiyn, the accused's mother. 10Dr Kasinathan assessed the accused to be fit to stand trial and fit to plead by reference to the Presser criteria. In his oral evidence before the Tribunal, Dr Kasinathan explained the reason the treating team had reached that conclusion notwithstanding earlier unfitness findings by two courts. Dr Kasinathan stated that his assessment had to be understood in the context of the fact that the accused is a young man with treatment resistant schizophrenia who was only commenced on the drug Clozapine within the last year. 11Dr Kasinathan explained that Clozapine takes time to take effect and that earlier fitness assessments had been conducted at a time before the accused had responded to the drug. It was Dr Kasinathan's opinion that the dose of Clozapine administered to the accused had resulted in a gradual but sustained improvement in his psychosis and that, whilst he is not cured, he is much improved from his earlier condition. 12The accused's solicitor, Ms Dalumpines, had also taken him through the Presser criteria and, having done so, concurred with Dr Kasinathan's report. The accused's mother gave evidence that she had noted a great improvement in her son's condition since his admission as a forensic patient. 13Following the determination of the Tribunal that the accused was fit to be tried, the accused was re-assessed by Professor Greenberg and Dr Furst. Professor Greenberg assessed the accused on 4 January 2012 by reference to the Presser criteria. He concluded that the accused was fit to plead and stand trial, stating: Mr Aliwijaya understands the charges he is currently facing. Mr Aliwijaya understands the various pleads to the charge, including the plead of guilty, not guilty and not guilty by reason of mental illness. He generally understands the nature of the proceedings, that it is an enquiry into the veracity of allegations against him. I am of the view that he generally could understand the course of proceedings and the functions of the officers in Court. He stated that the role of the Judge was to give judgment based on the evidence and pass sentence. He stated that his lawyer's role was to defend him whilst the prosecutor prosecutes him. He initially did not know how many members there were on the jury but after being reminded it was twelve and not ten, he retained this information. He understood how the jury was selected and their role if he had a jury in Court. In my opinion he had the capacity to exercise his right to challenge the jurors. He understood that he was the accused and the role of the witnesses. 14Dr Furst was of the same opinion. He stated: He now has a better understanding of the charges he is facing in the legal options available to him. He was able to make his version of the events known to myself and could probably do so in a trial setting if so required. He understood the various roles of the judge, jury, his own legal representatives and the public prosecutor. He understood what evidence was and had sufficient cognitive capacity to pay attention to what was said in court and understand court proceedings in the general sense. 15After considering that material, I asked counsel for the accused, Mr Smith, whether he had been able to communicate with the accused on the morning of the trial and comfortably obtain such instructions as he required. He indicated without any equivocation that he had been able to do so. 16I accepted the uncontested opinions of the two psychiatrists, Professor Greenberg and Dr Furst, that the accused was fit to be tried. I also had regard to the fact that there was consensus between them as to the availability of the defence of mental illness, which meant that the complexity of the trial would be substantially reduced. Further, I took into account the fact that the estimated length of the trial was only one day: cf Kesavarajah at 246. In the circumstances, I was satisfied on the balance of probabilities that the accused was fit to be tried. Trial by judge alone 17On 13 April 2012, the accused elected to be tried by a judge alone. The Director of Public Prosecutions recorded his consent to the election on 1 May 2012. The election was made in a prescribed form and filed before the date of the trial, as required by r 75.3H of the Supreme Court Rules 1970. In the circumstances, an order for trial by judge alone was mandated under s 132(2) of the Criminal Procedure Act 1986. The order was made and entered on 14 May 2012. Circumstances of the offence 18By agreement with counsel for the accused, the Crown case was presented in the form of a bundle of documents consisting of statements, photographs and reports (Exhibit B). There was no contest as to any of the matters established by those documents. On the strength of the material in Exhibit B, I make the following findings of fact. 19As at 22 April 2010, the accused was in custody on remand at the Metropolitan Reception and Remand Centre in Silverwater, having been arrested several days earlier for a separate matter. On that day, he was placed in a two-man cell with Robson Pham, the deceased. 20On the afternoon of 23 April 2010, the accused and the deceased were locked in their cell for the evening at about 3.25 pm. The following morning at about 6.15 am, Correctional Services officers began their morning "head count" of inmates within that part of the gaol. When they opened the door to the accused's cell, they saw the deceased lying on his back on the floor and the accused standing next to him. An officer asked the accused "is he alright?" The accused replied "I bashed him", repeating that statement several times. Ambulance officers were called but were unable to revive the deceased. 21The accused participated in an electronically recorded interview during which he made a series of admissions as to the offence. He stated that, in the early hours of the morning when the deceased appeared to be asleep, he climbed on to the deceased's bed and commenced to "stomp" him with his feet. The deceased awoke and attempted to defend himself, whereupon the accused put his arm around the deceased's neck and tried to choke him. The two men fell to the floor, where the accused continued to choke the deceased. The deceased attempted to crawl away from the accused and as he did so the accused kicked him a number of times. Eventually the deceased stopped moving. He did not regain consciousness and died in the early hours of the morning. 22An autopsy revealed extensive haemorrhage in the soft tissues of neck with fractures of the hyoid bone and cricoid cartilage. The cause of death was fatal pressure to the neck. 23In his record of interview, the accused made some admissions as to his intention at the time he committed those acts. He said that, just as he was about to go to sleep, he saw the accused do "a kissy face". He did not look directly at the deceased but saw his face out of the corner of his eye. He stated (Q 67-68): I lost it. I jumped up on his bed and stomped on him and I kicked him in the groin or whatever ... and then I tried to choke him and, yeah, and he became unconscious and I just left him there. 24The accused was later asked what force he was using when he had his arm around the deceased's neck (Q 330). He said: Pretty hard, as hard as I could. I was trying to choke him. 25He said that it was his intention to "knock him out" and "make him unconscious". 26The accused subsequently told both forensic psychiatrists that he had killed the deceased in response to instructions from aliens that he needed to sacrifice someone in order to go to paradise. When pressed by Professor Greenberg as to the version of events given to police, he said that he had lied about the deceased blowing him a kiss because he didn't want the police to think he was crazy. For the reasons explained further below, I am satisfied that the accused intended to kill the deceased in response to hallucinatory instructions from aliens. I do not accept that the deceased blew a kiss or made faces to the accused as described to police in the ERISP. Principles of law applied 27The onus of proof lies on the Crown to establish the elements of the offence of murder beyond reasonable doubt. The Crown must prove: (a) that the deceased died as a result of injuries inflicted by the accused; (b) that those injuries were inflicted by deliberate acts of the accused; and (c) that at the time of those acts, the accused intended to kill the deceased or to inflict grievous bodily harm on him. 28On the strength of my findings of fact set out above, I am satisfied beyond reasonable doubt of those elements. Specifically, I am satisfied that the deceased died as a result of injuries inflicted on him when the accused choked him. I am satisfied that that was a deliberate act. I am further satisfied beyond reasonable doubt that the accused intended to kill the deceased. The defence of mental illness 29The principal issue to be determined in the trial is whether the accused has established the defence of mental illness. The onus is on the accused to establish the defence on the balance of probabilities: see Hawkins v The Queen (1994) 179 CLR 500 at 512-513. 30The defence of mental illness is to be determined in accordance with the principles stated in R v M'Naghton (1843) 8 ER 718, which are conveniently summarised in the judgment of Johnson J in R v Rodriguez [2010] NSWSC 198 at [33]. His Honour said: Those rules provide that every person is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proven. To establish the defence of mental illness, it must be proved upon the balance of probabilities that at the time of committing the acts causing death, the Accused was labouring under such a defect of reason from disease of the mind as not to know the nature and qualify of his act, or if he did know it, that he did not know what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190." 31Mr Smith submitted on behalf of the accused that the Court would be satisfied of what he referred to as the second limb of M'Naghton, namely, that although the accused knew the nature and quality of his act, he did not know that what he was doing was wrong. 32The Crown joined in that submission. It nonetheless remains necessary for me to determine the issue independently in accordance with the principles outlined above. Evidence of the two psychiatrists 33The reports of the two psychiatrists were admitted by consent of both the Crown and the accused. The contents of the reports were uncontested and no order was sought limiting the use to be made of that evidence. In those circumstances, the reports are admissible to prove the accused's version of events: s 60 of the Evidence Act 1995; R v Welsh (1996) 90 A Crim R 364 at 367-369. It is apparent from their opinions that both psychiatrists accepted the accused's account as to his past perceptions. I am satisfied on that basis that I can rely on the reports as recording a genuine account of the accused's state of mind at relevant times. 34The accused told Professor Greenberg that, over a period of about two years prior to the present offence, he had been hearing voices. The accused had been feeling miserable and was in pain. He believed he needed to relieve himself from the pain by "going to paradise". The voices told him that if he killed someone and sacrificed someone, he would go to paradise. They were "alien" voices from "the galactic society in space". 35Initially, the accused did not believe the voices. In March 2010, he took a train to Broken Hill to go "UFO hunting". After five days circumnavigating Broken Hill on foot, a series of perceptions (which I am satisfied were hallucinations) persuaded him as to the existence of UFO's and the authenticity of the voices he was hearing. 36The accused initially attempted to follow the instructions of the alien voices by stabbing a friend but the friend survived. The accused was charged with wounding him with intent to inflict grievous bodily harm. 37The present offence occurred whilst the accused was in custody on remand in respect of that offence. After being placed in a two-man cell with the deceased, the accused "knew" that if he killed the deceased, he would go to paradise. The accused told Professor Greenberg that, after he killed the deceased, he regretted his actions because he didn't go to paradise. Professor Greenberg reported: He then realised that the victim was an innocent person and that if the victim was a sinner then he would have gone to paradise. 38The accused gave a similar account to Dr Furst. He said that, since the age of 17, he had been hearing voices that introduced him to aliens. He also talked to birds and felt as though the television was talking to him "in a personal way". The aliens told him that "every sinner must pay the price for his death ... one person for every person who comes to Earth". He believed that, as he is one person, he needed to kill one person to go to paradise. 39Dr Furst reported: [The accused] was confused when he did not go to paradise immediately after killing the victim. He began to think that he was going to hell, stating that he thought he had been deceived. He said, "why would anyone tell me to kill someone if I was not going to paradise? I asked the voices 'why have you done this to me?' but they did not answer". 40Dr Furst's reports record a consistent account from the accused's mother as to many aspects of that history, including the trip to Broken Hill "waiting for the aliens to take him". 41Both psychiatrists have diagnosed the accused as having a disease of the mind, namely, a treatment resistant schizophrenic illness. Both are of the view that the accused was suffering from a serious mental illness at the time of the offence, with acute symptoms including persecutory and grandiosed beliefs and auditory hallucinations. 42As to whether the accused was aware of the nature and quality of his acts, both psychiatrists concluded that he was probably was. However, both expressed the opinion that he did not know that his actions were wrong. Dr Furst said: [The accused] was probably aware of his actions when killing the victim; however his delusional beliefs and voices prevented him from knowing that his actions were wrong in a moral sense as he felt compelled to follow the instructions of the aliens and thought it was the right thing to do at the time. His schizophrenic illness also deprived him of the capacity to reason about his actions with a moderate degree of sense or composure. I believe he has the mental illness defence available to him. 43Professor Greenberg said: I am of the view that [the accused] did likely understand the nature and quality of his act at that time period. I am of the view that [the accused] did know the act was wrong in a legal sense, but morally he felt compelled to act as he believed he would be relieved of his suffering by killing a victim. He falsely believed he would go to paradise as promised by the "alien" voices. At that time he believed these voices were aliens from outer space. He, in my opinion, likely did not know the moral wrongfulness of both his alleged acts. I am of the opinion that on balance, [the accused] has the availability of a defence of mental illness. 44I accept the evidence of the two psychiatrists. On the strength of their evidence, I am satisfied on the balance of probabilities that, although the accused did know the nature and quality of his act in choking the deceased and did intend to kill him, he did not know what he was doing was wrong in the sense understood in the M'Naghton rules. 45Section 37 of the Mental Health (Forensic Provisions) Act requires the judge, in the case of a trial with a jury, to direct the jury as to the legal and practical consequences of a finding of not guilty by reason of mental illness. Before commencing the hearing, I made myself aware of those matters. 46In accepting the defence of mental illness, it is appropriate to acknowledge the awful impact of the accused's acts and the undoubted grief of the family and friends of the deceased. As noted by Johnson J in R v PCB [2012] NSWSC 482 at [90], the community is entitled to have explained the effect of the verdict and orders made in such a case. The accused will remain in detention and be held as a forensic patient under the supervision of the Mental Health Review Tribunal. In accordance with the provisions of the Mental Health (Forensic Provisions) Act, he will not be released until the Tribunal is satisfied that the safety of any member of the public or indeed the safety of the accused will not be seriously endangered by his release. His case will be reviewed by the Tribunal every six months. If at some point in the future he comes to be released, he may be released on conditions which would see him returned to detention as a forensic patient if his mental condition were to deteriorate to a point where he may again be a serious danger to others. Conclusion 47For those reasons, in accordance with s 38 of the Mental Health (Forensic Provisions) Act, I find the accused not guilty by reason of mental illness. 48Pursuant to s 39(1) of the Act, I order that the accused be detained in a correctional centre or at such place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law. 49I direct that, as soon as practicable, the Registrar notify the Minister of Health of this order. 50I direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of my determination that the accused was fit to be tried and of this order, and provide to the Tribunal the following documentation: (a)a copy of these reasons for verdicts and orders; (b)the transcript of the trial; (c)the exhibits tendered by the Crown at the trial. ********** 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: 16 May 2012