Supreme Court New South Wales Medium Neutral Citation: R v Munoz [2014] NSWSC 1408 Hearing dates: 13/10/2014 Decision date: 13 October 2014 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Verdict: Not guilty of murder by reason of mental illness. Orders: Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1900: (1) Order that Daniel Munoz be detained at the Psychiatric Ward, Long Bay Prison Hospital, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. (2) Direct the Registrar of the Court to notify the Minister for Health of this judgment and order. (3) Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation: (a) A copy of this judgment and orders; (b) A transcript of these proceedings; (c) A copy of each of the exhibits tendered at the trial. Pursuant to s 169 of the Criminal Procedure Act 1986: (1)Order, in the interests of justice, that the offence set out in a Certificate dated 23 June 2014 pursuant to s 166(1)(b) of the Criminal Procedure Act, be remitted to the Local Court at Penrith for mention on 12 December 2014. (2)I excuse Mr Munoz from attendance at Penrith Local Court on 12 December 2014 provided that he is legally represented. Catchwords: CRIMINAL LAW - murder; one count - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133 - CRIMINAL LAW - murder; one count - defence of mental illness - Mental Health (Forensic Provisions) Act 1900; s 38 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid schizophrenia - whether accused knew what he was doing was wrong - defence established - no point of general principle Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v M'Naughten (1843) 8 ER 718 R v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 R v Matusevich & Thompson [1976] VR 470 R v Huy Pham [2007] NSWSC 1313 R v Coles [2008] NSWSC 682 R v Winningham (unreported, NSWCCA, 10 May 1995) Texts Cited: Diagnostic and Statistical Manual for Mental Disorders - 5th Edition Category: Principal judgment Parties: Regina (Crown) Daniel Munoz (Accused) Representation: Counsel: T Thorpe (Crown) B Rigg SC (Accused) Solicitors: Director of Public Prosecutions (Crown) Christopher Tosevic (Accused) File Number(s): 2013/315783 Judgment 1By an indictment presented on 29 July 2014, Daniel Munoz is accused of murdering his wife, Melissa Munoz, on 20 October 2013 at Hobartville, NSW. 2Mr Munoz ("the accused") has pleaded not guilty to this offence. 3He has elected to be tried without a jury: s 132 Criminal Procedure Act 1986. 4The Crown Prosecutor and senior counsel for the accused each submit that I should return a special verdict in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, of not guilty, upon the basis that Mr Munoz was: "... mentally ill, so as not to be responsible, according to law, for his ... action, at the time when the act was done ...". Trial by Judge Alone 5Where an accused is tried without a jury, s 133 of the Criminal Procedure Act 1986 imposes certain obligations upon the judge in reaching a verdict. That section provides: "(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." 6Section 133(2) requires me to expose in this judgment my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. This requirement however does not extend to publishing a judgment in the form a summing up would have taken had the trial been before a jury: R v Winningham (unreported, NSWCCA, 10 May 1995). 7Section 133(3) requires me to set out any requirement on me to give a warning to the jury, had this trial been before a jury, as well as the reasons why, notwithstanding the warning or in consequence of it, I have reached a particular verdict: Fleming at [28]. Agreed Facts 8The Crown and the accused agreed on all of the relevant facts surrounding the death in October 2013. The Statement of Agreed Facts was tendered to the Court. What follows is drawn from that statement. Although I am not bound by that statement, I am satisfied that I should make findings in accordance with the facts there set out. The Initial Scene 9As at October 2013, the accused, then 41 years old, was living with his mother in Westmead. His wife, the deceased, and their seven children were living at 14 Harold Avenue, Hobartville in NSW. 10At approximately 3.20pm on 20 October 2013, police responded to several 000 calls reporting a domestic assault at the deceased's house at Hobartville. 11On arrival, police noticed the front screen door was closed, however the internal front door was open. Through the screen door, police observed the accused holding a knife and covered in blood. Police asked the accused where his wife was, to which he replied, "I stabbed her, she's dead". The accused was asked to come outside. He refused, and closed and locked the front door. The police kicked in the front door and a struggle ensued between the police and the accused in the lounge room of the house. The accused was ultimately subdued and handcuffed. 12The deceased was observed to be lying on the lounge room floor, suffering from multiple stab wounds to her stomach, chest and neck. Police commenced first aid, however after a short period of time it was clear she was deceased. Ambulance officers arrived shortly after, and pronounced life to be extinct. 13The accused was conveyed to Windsor Police Station. A support person was nominated by the accused, and also attended the Police Station. Events leading up to the Killing 14At the time of the killing in October 2013, the accused was married to the deceased. They had seven children together. 15The accused had been in contact with mental health professionals since 1999, when he was first diagnosed with schizophrenia. He had been admitted to psychiatric hospitals and mental health facilities on various occasions over the years, including a period of hospitalisation at Cumberland Hospital. After discharge from that hospital, he was followed up at the Outpatients Department at St John of God Hospital. 16Over time, the accused had been prescribed, and took, the anti-psychotic drug Risperidone as treatment for schizophrenia. Approximately two months prior to the day of the killing, the accused ceased to take his prescribed anti-psychotic medication. 17Around this time, members of his family and neighbours noticed a significant deterioration in his mental condition. They observed that he had become increasingly irritable and aggressive, and had withdrawn from social interaction which he normally engaged in. During this period, he committed a number of traffic infringements and lost his driver's license. As a result, he also lost his job. 18On 7 September 2013, he assaulted his eldest son, Daniel. On 11 September 2013, an Apprehended Violence Order ("AVO") was issued against him at Windsor Local Court. 19In order to comply with the AVO, the accused moved out of the family home in Hobartville and returned to live with his mother at her home in Westmead. He remained in contact with his family and called his children nightly. He and the deceased argued frequently during this period. 20At some point during the two months leading up to the killing, the accused developed the delusional belief that the deceased and several of their children were having sexual intercourse in their house with a number of men. He spoke frequently with his elder sisters, Ms Sandra Walker and Ms Erika Brinsmead, along with other family members, about this belief. He told them that he had heard the sexual encounters taking place for a period of over 14 hours, through the telephone, which had not been correctly hung up by one of his children after his call one evening. He attempted to get assistance from his sisters to have the telephone company make a recording of what he said he had listened to. 21On another occasion, the accused made a recording of what he had listened to on the telephone. He believed the recording captured similar conduct. He played the recording to his sister, Ms Erika Brinsmead. She stated that all she could hear on the recording was the deceased getting the children ready for bed, and then the deceased apparently watching television. The accused insisted that he could hear sexual activity and men present in the house. According to Ms Brinsmead, the accused was adamant that his children were being abused, and told her he was going to call the Department of Community Services to report the abuse. He became angry with both Ms Brinsmead and Ms Sandra Walker when they attempted to reason with him. 22At some point, the deceased and children became aware that the accused had formed these delusional beliefs. The deceased told the accused that these views were entirely incorrect. 23On one occasion prior to the killing, the accused questioned two of his daughters about his beliefs. On this occasion the deceased was not present, however Ms Brinsmead was. At one stage his eight year old daughter nodded. The accused perceived this as indicating the veracity of his beliefs; however Ms Brinsmead stated the response was made out of fear. When the accused refused to desist in questioning the children, he was made to leave the premises. 24During these two months leading up to the killing, various attempts were made by a number of the accused's family members to assist him in receiving medical treatment. They perceived him to be mentally unwell, in particular when he spoke of his belief that the deceased and children were engaging in sexual activities at the family home. Members of his family have stated that his eyes took on an appearance they had seen on previous occasions when he was mentally unwell or not taking his medication. 25On 14 October 2013, a little under a week prior to the killing, the accused obtained a script for fortnightly injections of Risperdal. 26On 17 October 2013, his eldest son, Daniel, took him to a doctor where the injection was administered. Daniel stated that he believed his father was happy because this was a step forward in allowing him to come home and see his family, as the deceased had said she would not consider getting back together with the accused unless he resumed taking his medication. The unchallenged medical evidence is that the drugs delivered by this injection would take at least two weeks before becoming effective. Detailed Account of the Day of the Killing 27At some point prior to 3.20pm on 20 October 2013, the accused was driven to the family home in Hobartville by his eldest son, to visit his children. 28During the course of this visit, the two elder daughters, M (aged 16) and N (aged 14), took the three younger daughters, S (aged 10), Ml (aged 8) and H (aged 3), to a nearby park. Daniel, the eldest son was not present at either the house or the park. The youngest of the children, C (aged 20 months), remained at home with the deceased and the accused. 29It was initially intended that the accused himself take the five children to the park, however just as they were leaving the house to go to the park, the accused told his children he needed to use the bathroom. The children left the house without him. 30In statements given to the police, both M and N stated that they heard the deceased cry for help from the house, whilst they were playing at the nearby park. M stated that they had only been at the park for a couple of minutes before she heard the deceased yell, "Daniel, no!" M and N returned to the house. 31M told police that when she entered the house through the front door, she saw the deceased on the floor of the lounge room attempting to crawl away from the accused. She observed that there was blood everywhere. She left the house and noticed her neighbour speaking to the police over the phone. M re-entered the house and saw the deceased lying in a pool of blood on the lounge room floor. The accused was standing near the deceased. 32N told police that when she returned to the house she saw blood everywhere. The deceased was on the ground telling the accused to get off her. N threw her mobile phone at the accused, which hit him in the head. She also yelled at him and hit him in an attempt to get him off the deceased. The accused, undeterred, continued to stab the deceased saying "die bitch, die in the name of God die." 33N noticed that the knife used by the accused in the attack, was one from the family kitchen. 34M and N left the premises and sought help from a nearby neighbour, who in turn contacted the police. 35N returned to the house to collect her infant brother C, who was still inside the home. An emergency call made while N was inside the house recorded the accused saying, "I know what's been happening in this house". 36The two younger daughters, S and Ml, also witnessed the attack and gave accounts to the police consistent with those given by M and N. Interview of the Accused at the Police Station 37At Windsor Police Station, the accused participated in an electronically recorded interview with police. 38During the interview, the accused admitted to stabbing the deceased multiple times. He told police that in stabbing the deceased, he was hoping to set her free from the evil spirits inside her. He said god had told him to stab her, and he knew she was going to die. 39He told police that the deceased had been having sexual encounters with a number of men at the house which had lasted for many hours. He told them he believed the children were also involved. 40The accused informed the police that he suffered from schizophrenia and had been on medication since 2000, though he had recently stopped taking his medication. Post-mortem Examination of the Deceased 41A post-mortem examination was undertaken by Dr Szentmariay, an expert forensic pathologist. The direct cause of death was multiple stab wounds. 42Dr Szentmariay indicated that there were multiple stab wounds over the front of the left chest, and additional stab wounds over the front of the right chest. These stab wounds were relatively deep, injuring the underlying ribs, soft tissues, the heart, both lungs, and liver. The injuries caused haemorrhage and cardio-respiratory compromise. 43In short, the injuries were many, and indicative of significant force, uncontrolled rage, and homicidal intent. Factual Conclusions 44From all of the Agreed Facts, I am satisfied, beyond reasonable doubt that, on 20 October 2013, Mr Munoz, the accused, stabbed his wife, the deceased, thereby causing her death. I am satisfied that he did so, intending to kill her. 45I am satisfied of his intent beyond reasonable doubt because, of what he told police after the events, and, secondly, because of the number of stab wounds inflicted on the deceased, the locations where those stab wounds were inflicted, and the accused's failure to cease inflicting those injuries when his daughter attempted to stop him and whilst the deceased was lying, obviously incapacitated, on the ground. These features combine to make it plain that the killing occurred at a time when Mr Munoz was acting with the intention of killing his wife. 46But for the defence of mental illness, to which it will be necessary to come, I am satisfied, beyond a reasonable doubt, that the Crown has proved all of the elements of the offence of murder. 47Indeed, senior counsel for the accused did not submit to the Court that such findings ought not be made, nor did she present any argument which cast doubt on these being the appropriate findings. Mr Munoz's History and Mental State 48The mental history and state of Mr Munoz was proved through the expert reports of Dr Olav Nielssen, an expert forensic psychiatrist, dated 16 February 2014, and Dr Stephen Allnutt, also an expert forensic psychiatrist, dated 2 April 2014. 49Dr Nielssen examined Mr Munoz at the MRRC on 14 January 2014 and Dr Allnutt examined him at the MRRC on 24 March 2014. There is no significant disagreement between each of the experts. 50In their reports, each of the experts has paid significant attention to the accused's medical history, acquired from medical records and orally from the accused. 51I am satisfied that I should approach the histories provided to the psychiatrists, although principally admitted for the purpose of demonstrating their psychiatric opinions, as evidence of the truth of what the psychiatrists were told: s 60 Evidence Act 1995. 52Mr Munoz was born on 14 August 1972 in Australia. He was the youngest of five children born to his parents who were of Mapoochie Indian heritage. He was the only one born in Australia after his family migrated from Chile. His father was a machinist, and his mother was a factory worker. His elder brother was a forklift driver, his eldest sister looked after students, his next eldest sister was a social worker and the youngest of his sisters was a florist, and now cares for his children. 53Mr Munoz was born in Macquarie Fields and lived in that suburb for thirty years until he purchased the property at Hobartville. He had an apparently difficult childhood. His father died of a heart condition when he was aged nine or ten years old. He reported that while his father was alive, he was exposed to domestic violence and physical abuse. 54He attended school to the end of year ten. He stated that he was in the "low classes" at school and had learning difficulties with reading and mathematics. He had many friends and got on well with teachers. However, he also had some behavioural problems which included, running away from home on one occasion, fighting, stealing, frequent truanting, damaging property and early onset substance abuse. 55After leaving school, the accused had difficulty maintaining employment. He reported that this was due to his being unable to find something which he enjoyed, together with interpersonal conflicts in the workplace, poor motivation and concentration problems. He worked initially as a storeman at an Army depot in Moorebank, then fabricating sheets, and then in a frame and truss factory. He did not work for a period after his first children were born. In recent years, he worked as a forklift driver and as a security guard. He lost his job at a club in Springwood prior to the killing. 56Mr Munoz met the deceased in around 1990 when she was working at McDonalds. They began seeing each other on weekends, and then moved in together in his mother's home. They had five children together, and were formally married in 2005. After marriage, they had another two children. They had never been separated, apart from the months before her death. The accused and the deceased separated after he assaulted his eldest son. 57Mr Munoz has a history of drug abuse. He began smoking cannabis at age 12, and began drinking alcohol at age 16. As well, he tried other drugs, including smoking heroin and inhaling cocaine. He also used some anabolic steroids while training in his early life. He has not used any other drug for many years. 58He discontinued smoking cannabis at age 27, after his first episode of mental illness and has not consumed it since. By the time he stopped using cannabis he was smoking around 18 cones per day, beginning first thing in the morning. 59Mr Munoz was first diagnosed with schizophrenia in 1999, during a period of incarceration. He has a family history of the illness. He was first seen on 8 December 1999 by a psychiatrist, Dr Reed. He presented as perplexed and had a limited flow of thought. He had fears of going mad, believed people on television were laughing at him, he had persecutory ideas and was hallucinating. He was admitted to Long Bay Prison hospital. His reported psychotic symptoms resolved rapidly with neurological medication. 60Mr Munoz also experienced periods of severe depression. He attempted suicide in 1999 in response to hearing voices. 61On 13 August 2005, he was seen to be manifesting childlike behaviour. The deceased reported that he had bouts of aggressive behaviour since his diagnosis. He tended to drop off to sleep, have twitching in his hands and around his shoulders, and had a thickness of speech at times. 62On 15 August 2005, he was admitted to Cumberland Hospital. His thoughts were disordered, he was wandering, he was removing clothes in front of his family and was easily agitated. He had ceased taking his prescribed Risperidone several months prior. It was noted he had a low TSH and a raised T2. Risperidone was commenced and he improved within one week, however he continued to have residual negative symptoms after he was discharged on 30 August 2005. 63A letter dated 30 August 2005, noted that he had commenced on Risperidone since his hospitalisation. He had a series of tests including a CT scan, which was normal. There was evidence of thyrotoxicosis, and a laboratory endocrinology showed results consistent with hypothyroidism. 64A referral note dated 13 October 2005 noted that he had repressed behaviour, drowsiness, twitches, echolalia, inappropriate response and front lobe signs on cognitive testing. He had a diagnosis of chronic schizophrenia. 65In August 2013, approximately two months before the killing, the accused discontinued Risperidone, because he felt he did not need it. At that time he was living with his wife and children at their home in Hobartville. He was working in security, a role in which he had been working for around three years. There were no performance issues or conflicts with work colleagues and his relationship with his wife was good. He did not have concerns about her fidelity, and there were no significant arguments at that time. 66After he discontinued his medication, he became more irritable and aggressive when driving, and ultimately lost his license. As a consequence of losing his license, he also lost his job. His mood deteriorated, and he spent his time looking after his children. He and his wife began to argue. He told Dr Nielssen: "I became very aggressive ... I knew I wasn't the same ... I started arguing with my wife a lot ... the police were called a number of times ... she did not know I wasn't taking [the medication] ... I used to show her when I took it ... but I was putting it into a tissue and putting it in the bin." 67In addition to these mood changes, the accused also began to hear voices coming from the left side of his brain. He described them as demon voices, soft and male, which worsened over time. Of these voices, he stated: "They started overpowering me ... I started doing what they wanted me to do ... telling me to kill myself and hurt other people... they also said 'kill yourself, kill yourself'." 68The accused also heard another voice on the right side of his brain, which he described as a "good voice telling me Daniel no". 69In September 2013, the accused had a fight with his eldest son, Daniel, during which he got Daniel in a headlock. He stated that at this time the voices had told him to bash Daniel. His wife rang the police, and, as previously mentioned, an AVO was issued against him, and he left the matrimonial home and went to live with his mother. 70Mr Munoz also had a confrontation with his brother. He told Dr Allnutt that it was because his brother had said something to him the wrong way. He heard voices saying "hit him, hit him". The police were not called. 71On or around 23 September 2013, the accused had an argument over the phone with the deceased. He told Dr Allnutt that after that argument the deceased slammed the phone down, but it remained off the hook and he continued to listen. He heard people snorting something and heard the deceased say, "hail Mythias". He then heard people having sexual intercourse. He described hearing the bed head banging on the bedroom wall, and heard his son Daniel and another man engaging in sexual activity, identifiable by heavy breathing. He remained on the phone for a period of 14 hours and 11 minutes. 72He told Dr Allnutt that during this time he passed the phone to his mother, she listened for a short time, and she said it was "disgusting". However, neither he nor his mother phoned the police. He stated that he did not call the police even though he could hear that his children were involved, because his "head was everywhere at the time", he was not thinking right and felt a "buzzing feeling" in his brain. 73Mr Munoz did however, return to the house at Hobartville to check for evidence of what he had heard over the phone. He checked the bed and could see where the bed had hit the wall. He stated that there were black marks on the wall and the bars of the bedhead were broken. He took photographs for evidence. At a subsequent visit a few days later, he saw the bed was changed and believed this was evidence for what he had heard. 74He told Dr Allnutt that until the telephone call he did not have thoughts regarding his wife's fidelity, however after the call he formed the view that she was prostituting herself and their three eldest children for money. Notwithstanding this, he continued to see his children on the weekends, but did not raise it with them. He could not recall discussing the matter with the deceased. 75Leading up to the killing, his mood became increasingly irritable, his sleep was restless, he lost his appetite and weight, his energy levels were diminished and he felt lethargic. He had reduced motivation, he felt poorly about himself, he was more forgetful, and had reduced capacity for pleasure. He also believed he was going to die because he developed bad pains in his stomach. 76During this period, he began to hear the voices in his head on a daily basis, saying things which tormented him. He had no sense of taste or smell but continued to see different colours. He believed the television was talking to him, and when he watched television it felt like people were staring at him with different coloured eyes. He interpreted this as something "spiritual", with the demon voices remaining on the left side of his brain when he watched television. 77Mr Munoz also changed his religion from Christianity to Islam, at some point prior to the killing. He told Dr Allnutt that having heard his wife "change to Mythias", which he said was a Prophet of a Jewish God, he met some people in Parramatta who were handing out pamphlets and spoke to him about Islam. He said they spoke a few words and "that was that". 78Both expert psychiatrists reviewed the electronically recorded interview in which the accused participated after he was arrested on the day of the killing. In that interview, he told police about his beliefs that the deceased and some of their children were participating in sexual activity in their house, and his beliefs had been confirmed by his inspection of the bed, and a conversation with one of his daughters. As recorded by Dr Allnutt, in the interview: "[the accused] admitted that he stabbed her because of what was going on in his house, her affairs with different men and his kids having sex with he did not know who and worshipping Mythias... He was hoping to set [the deceased] free from the evil spirit that she had in her because there was life after death. He thought she would be with God because God told him to do it when he was at the house... He was in the kitchen when God spoke to him... God told him to stab her when he grabbed the knife. He could not recall how many times he stabbed her. He felt nothing at the time. God told him to keep stabbing her...When asked what God thought about the fact that he stabbed her he said "it depends which God you worship it comes down to it, it depends which God you worship" and stated that he worshipped Allah. He had been worshipping Allah for a number of months. He had turned to Islam and that in Islam they suggest if somebody does something wrong you can kill them if they have committed a great sin." 79On 23 October 2013, three days after the killing, Mr Munoz was interviewed. It was reported that he had no thoughts of self-harm, though he acknowledged he had previously had those thoughts around 1999 and 2000 when he attempted suicide. He stated that he loved his wife but did not know what was going on in the house. He was hearing generally positive female voices saying "you all right" and sometimes saw figures. 80On 25 October 2013, he was seen by a psychiatrist. The psychiatrist noted that he had been previously diagnosed with psychosis within the prison environment. He restated his beliefs regarding sexual encounters in the house. He stated that he did not go to the house with the intent of killing the deceased, however he believed that in killing her he was protecting his family and there was no other option. At the time of the assessment he was dishevelled, thought to be suffering from delusions, he had poor insight and was diagnosed with paranoid schizophrenia. 81He was subsequently seen on multiple occasions by the Psychiatric Registrar. On 4 November 2013, the Registrar concluded that he had a psychotic illness and a fixated paranoid belief surrounding his wife, likely of a delusional extent. He prescribed antipsychotic medication. In subsequent entries, the Registrar noted some inconsistencies in his psychotic symptoms, however he continued to prescribed antipsychotic medication. Expert Opinion 82When the accused was interviewed by Dr Allnutt he gave an account of the killing. Dr Allnutt records it as the following: "On the day of the alleged offence he went to his wife's house to visit the children. They watched a movie. It was a Christian movie and then the movie finished. His wife told him to take his kids to the park. He said that the kids walked out ahead of him and he was the last to leave. As soon as he walked out of the front door he felt a spirit come towards him on the left. The kids had left for the park and he heard a voice saying that he should kill her, do it now. It was a male voice coming from the left side of his head and it sounded like a demon's voice. It felt as if he was a different person, it did not feel like it was him, it felt as if the demon was controlling him, he felt overpowered. He went to the kitchen and on the way to the kitchen he had thoughts of killing. He could not stop himself. He said, "the demon's voice was too overpowering". He got a knife, he went to the lounge and he stabbed her in the heart with the intention of killing her. The voices were telling him to do so, they were saying "Daniel, kill her now". He was still standing over her when the children returned and he told them to get out. He then remained in the lounge. He could not say why he would not allow the police in when they arrived." 83Dr Allnutt asked the accused why he had told him it was a demon voice that he heard, Dr Allnutt recorded: "[The accused] could not say why ... it was a demon voice that he heard and that it was Allah's voice when [he] spoke to police however he said the demon inside had told him that it was Allah." 84When interviewed by Dr Nielssen, the accused gave a similar account of the killing, he said: "...my son came to pick me up from mum's house ... I went to my place to see the kids ... I said hello and we were watching a movie ... then I was trying to talk to [the deceased] and I said to [his daughter] take the little kids to the park ... I will be over there soon ... then I felt a spirit come in me ... then I went to the toilet and heard a demon voice telling me to do it now ... you won't get a chance like this again so I went and grabbed a knife and started stabbing my wife." (sic.) 85Dr Allnutt, in his report of 2 April 2014, expressed the following expert opinion: "In my opinion the defendant manifests symptoms consistent with a paranoid schizophrenia dating back many years with multiple admissions to psychiatric hospitals characterised by persecutory delusions, religious delusions, auditory hallucinations, visual hallucinations and ideas of reference which has affected his interpersonal and occupational functioning through the years. ... He was maintaining adherence to Risperidone (at a relatively low dose). He discontinued medication in August 2013 and likely became unwell...Maintaining non-adherence to the medication his mental state gradually declined with the increasing emergence of auditory hallucinations. ... He describes a telephone call that he had with his wife on 23 September 2013 in which for 14 hours 11 minutes (a significant period of time) he said he heard his wife and children having sex with various men. Paradoxically he did not call the police ... and he continued to see his children thereafter ... This kind of behaviour is consistent with irrational thought processes related to psychosis. The [accused] has a "disease of the mind" characterised by psychosis which caused him a "defect of reason" at the material time of the alleged offence. He maintained capacity to know the nature and quality of his actions. On the day of the alleged offence he was at his wife's house visiting the children and experienced a voice consistent with auditory hallucinations. He describes that [he] felt overwhelmed by this experience and acted on the voice. He had incorporated his wife into an irrational belief system driven by a delusional belief of his wife's infidelity and sexual abuse of the children. Under these circumstances he would not have been capable of reasoning about the matter of wrongfulness with a moderate degree of sense of composure as an ordinary person might. Thus I believe that the defendant has available to him a defence of mental illness." 86Dr Nielssen, in diagnosing Mr Munoz with chronic schizophrenia, expressed this opinion: "The diagnosis of chronic schizophrenia is made on the basis of the history of typical symptoms of the illness, the history of a fairly typical pattern of treatment, and aspects of Mr Munoz's presentation, as he had the poverty of thinking and ambivalent insight that is also typical of chronic forms of the illness. Mr Munoz described experiencing irritable mood and irrational anger, hallucinations of voices and the emergence of beliefs that were interpreted to be delusional after ceasing treatment with antipsychotic medication. The statements of Mr Munoz's children, and the entries in the Justice Health medical records after his reception to prison confirm that he was affected by an exacerbation of schizophrenia at the time of the offence. He told the police that he had received an injection of Risperidone a week before the offence. However, there is a two week delay in the release of that preparation into the blood stream, and it is unlikely to have had much effect on his mental state at the time of the offence. ... Mr Munoz was thought to have the defence of mental illness available to him, as he has a chronic schizophrenic illness, which produces a pattern of abnormality or mind that is recognised in law to be a disease of the mind. At the time of the offence he was affected by a defect of reason in the form of the delusional belief that his wife was using drugs and was unfaithful to him and was also selling the children for sex. It is clear from his account that he was aware of the physical nature and quality of his actions in stabbing his wife. However, at the time of the offence he was deprived of the ability to recognise that his actions were morally wrong by the effect of his delusional belief and the irrational anger associated with the exacerbation of mental illness. He also told the police that he had experienced what might have been hallucinations of voices he took to be the voice of God telling him to commit the offence." 87I accept the expert opinions of Dr Nielssen and Dr Allnutt and their evidence. Neither party submitted that I should not. 88However, I should say that I have formed the opinion that both of these experts have undertaken their task diligently and thoroughly. Their opinions are unqualified and seem to me to be properly based upon the material that they had. As well, the opinions accord with the inexpert and untutored view, which I would have reached as a matter of common sense. 89As the tribunal of fact I am not bound by the opinion of any expert witness or any number of expert witnesses. However, this is a circumstance in which the expert witness engaged by the Crown, and whose evidence was not challenged by the accused, and the expert witness engaged by the defence, agree with each other. In those circumstances I should not reject the unanimous opinions of the expert witnesses unless there is evidence before me which would cast doubt on those opinions: R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Grove J. Here, there is no such evidence. Should a Special Verdict be Found? 90The issue to which I now turn my attention is whether that mental illness, which I am satisfied beyond a reasonable doubt existed, is sufficient to satisfy the legal tests to enable a special verdict to be found. 91Before I do so, I note that, had the proceedings been heard in a trial with a jury, there would have been an obligation on me to inform the jury of the legal and practical consequences of a special verdict. I bear all those matters in mind in considering my verdict in this case. In particular I note, and have regard to, the following matters: (a)if my verdict is "not guilty by reason of mental illness", I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community. (b)if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by due process of law. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes a forensic patient and falls under the supervision of the Mental Health Review Tribunal. (c)the composition and functions of the Mental Health Review Tribunal, including its obligation to review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody, its obligation to review the patient at least once every six months, and its obligation not to release a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. 92The real issue in this trial is whether the accused has available to him the defence of mental illness. The defence is a matter for the accused to establish, not beyond reasonable doubt, but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. If the accused does establish the defence of mental illness, then a special verdict is to be returned. 93Section 38(1) of the Mental Health (Forensic Provisions) Act provides: "38 Special verdict (1) If, in an indictment ..., an act ... is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his ... action at the time when the act was done ..., then, if it appears to the jury before which the person is tried that the person did the act ..., but was mentally ill at the time when the person did ... the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 94That section, and the Act as a whole, does not provide any definition of the term "mentally ill". The meaning of that term is determined in accordance with the M'Naughten Rules: R v M'Naughten (1843) 8 ER 718 at 722: "Every man is presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, unless the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong." 95In order to persuade the Court to return a special verdict, it is necessary for Mr Munoz to persuade me, on the balance of probabilities, that at the time he killed his wife, he was suffering from a mental illness, which led to a defect of reason such that he did not appreciate the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. 96I am well satisfied that Mr Munoz knew what he was doing. He intended to kill his wife by stabbing her a number of times to the chest. Both expert psychiatrists were of the opinion that the accused knew the nature and quality of the acts he was performing. This was a brutal, vicious and unconstrained attack in the presence of several of the accused's children, which only stopped when Mr Munoz thought that his wife was dead. I am persuaded beyond reasonable doubt that Mr Munoz knew the nature and quality of his acts. 97However, I am satisfied on the balance of probabilities that at the time of the killing, Mr Munoz was mentally ill. He was at that time, and had been for a significant period, suffering chronic paranoid schizophrenia. This type of illness is a "disease of the mind". It was in an acute phase at the time of the killing, and was characterised by a number of delusional beliefs. 98The evidence of the two expert psychiatrists who are well qualified, highly experienced and eminently respected in their profession, persuades me to accept the view, and I find that, Mr Munoz did not know that what he was doing was wrong. He could not make that judgment because of his mental illness. 99Paranoid schizophrenia, a mental illness recognised by the Diagnostic and Statistical Manual for Mental Disorders - 5th Edition (DSM-V), generally has features such as the presence of prominent delusions, or auditory hallucinations. The delusions are typically characterised by being either persecutory or grandiose, or perhaps both. Religiosity is often a feature of the delusions. It is atypical of paranoid schizophrenics to see disorganised speech, disorganised or catatonic behaviour or negative symptoms. 100Because of his mental illness, Mr Munoz did not know what he was doing was wrong. Counter-intuitively, Mr Munoz thought that what he was doing was right. 101This issue is raised by the second part of the M'Naughten Rules. It is necessary here to remind myself of the proper direction which would in substance be given to a jury on this issue. I do so by reference to legal authority. 102In R v Porter [1933] HCA 1;(1933) 55 CLR 182 at 189-190, the test was formulated by Dixon J in the course of his summing up to a jury in these terms: "The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression 'disease, disorder or disturbance of the mind.' That does not mean ... that there must be some physical deterioration of the cells of the brain ... you are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know', 'knew that what he was doing was wrong'. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged." 103The terms of this explanation of the second part of the M'Naughten test has been judicially approved: Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson [1976] VR 470 at 477 per Young CJ, Starke and Nelson JJ. 104It is appropriate that I regard what Dixon J said as a practical synthesis of the concepts involved, and have regard to it, in undertaking the task which follows. 105I have relied heavily on the expert opinions and evidence of Dr Nielssen and Dr Allnutt. Both counsel for the Crown, and counsel for the accused, submitted that I should accept these opinions, and hence I should be satisfied that Mr Munoz has available to him the defence of mental illness because he did not know, in all of the circumstances, that what he was doing was wrong. 106In all of the circumstances, I consider that I should accept the expert psychiatric opinions and their evidence and, accordingly, I am satisfied on the balance of probabilities that at the time he killed his wife, the accused, Mr Munoz, did not know that what he was doing was wrong. Accordingly, he was mentally ill, and a defence under s 38 of the Mental Health (Forensic Provisions) Act has been established. 107The consequence of finding in the accused's favour on the defence of mental illness is that I return a verdict of not guilty on the ground of mental illness. One possible consequence of that is that the accused could be discharged, either conditionally or unconditionally, into the community. Neither the Crown, nor counsel for Mr Munoz submitted that in all of the circumstances of this case, this would be appropriate. It clearly would not be appropriate. 108What will happen in this case is that the accused will be detained as a forensic patient until he is released by due process of law. In other words, he will remain in a secure facility and and come under the supervision of the Mental Health Review Tribunal. 109In coming to my decision as to the appropriate verdict, I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. His case will be reviewed by the Tribunal as soon as practicable and, if further detained, his case will be reviewed at six monthly intervals. If at some stage the accused is released, it may be on conditions that if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained. Additional Charge 110There is an additional charge of breach of Apprehended Violence Order, which has been brought before this Court pursuant to a certificate issued in accordance with the provisions of s 166 of the Criminal Procedure Act. 111The Crown submitted that it would be in the interests of justice for this matter to be remitted to the Local Court, to be disposed of there after submissions are made to the presiding Magistrate. 112I am satisfied that it is in the interests that this matter be remitted to the Local Court for determination. Accordingly, I will order that the charge contained on the s 166 Certificate be remitted to the Local Court at Penrith for mention on 12 December 2014. Conclusion 113My conclusions, which I reached at the end of the trial on 13 October 2014, were that: (2)I was satisfied beyond reasonable doubt that the acts of the accused, Daniel Munoz, on 20 October 2013 caused the death of Melissa Munoz. (3)I was satisfied on the balance of probabilities that at the time of that killing the accused was labouring under such a defect of reason from a disease of the mind that he did not know that what he was doing was wrong. Verdict 114Accordingly, on 13 October 2014, for all of the reasons which I have set out above, I found the accused not guilty by reason of mental illness with respect to the sole count on the Indictment being the offence of murder contrary to s 18 of the Crimes Act 1900. Orders 115On 13 October 2014, for all of the reasons which I have here set out, I made the following orders pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990: (1)Order that Daniel Munoz be detained at the Psychiatric Ward, Long Bay Prison Hospital, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law. (2)Direct the Registrar of the Court to notify the Minister for Health of this judgment and order. (3)Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation: (a)A copy of this judgment and orders; (b)A transcript of these proceedings; (c)A copy of each of the exhibits tendered at the trial. 116On 13 October 2014, I made the following order pursuant to s 169 of the Criminal Procedure Act 1986: (1)Order in the interests of justice that the offence set out in a Certificate dated 23 June 2014 pursuant to s 166(1)(b) of the Criminal Procedure Act, be remitted to the Local Court at Penrith for mention on 12 December 2014. (2)I excuse Mr Munoz from attendance at the Penrith Local Court on 12 October 2014, provided that he is legally represented. ********** 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: 17 October 2014