District Court New South Wales Medium Neutral Citation: Shima v R [2015] NSWDC 410 Hearing dates: 15 – 16 December 2015 Date of orders: 16 December 2015 Decision date: 16 December 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Application refused Catchwords: CRIMINAL LAW – Conviction appeal – Application for adjournment in order to adduce fresh evidence – Applicant found guilty of three domestic violence offences in Local Court but not convicted – Sentences passed spent – Applicant has history of psychotic mental illness – Adjournment not of objective utility Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990 Category: Principal judgment Parties: Shuji Cameo Shima (Applicant/Appellant) Crown (Respondent) Representation: In person (Applicant/Appellant) Solicitor for the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2013/253681 Publication restriction: No Judgment 1. HIS HONOUR: There is currently before me an application for an adjournment. The adjournment was made by the appellant in person this morning. The matter was listed for hearing before me this morning in order to enable me to give judgment on the application which I entertained yesterday when the appellant was represented by Mr Singh of Sydney Criminal Lawyers of 367 Castlereagh Street, Sydney, a building opposite the Downing Centre Local and District Courts. Mr Singh told me that someone from his firm would be present today, but that is not the case, and I have heard nothing from Mr Singh or his firm. I do not know whether the firm is not represented today by way of oversight or whether it is because the appellant declined to have someone present from the firm to represent him today. 2. The application which I entertained yesterday was an application under s 32 of the Mental Health (Forensic Provisions) Act 1990. To understand what has happened before and as to my ruling on this adjournment application it is necessary, in essence, to review the forensic history of the proceedings which have led to today's application. 3. The appellant was served with court attendance notices on 16 August 2013. The original court attendance notices were listed for hearing before the Hornsby Local Court on Tuesday 27 August 2013. They remained before the Local Court at Hornsby until 1 October 2013 when they appear to have been transferred to the Downing Centre Local Court. There were three offences charged against the appellant. The first one was an offence contrary to s 13 (1) of the Crimes (Domestic and Personal Violence) Act 2007. The particulars pleaded were that between 11am and 11.30am on 11 September 2012 at Point Piper the appellant did intimidate Mihoko Numa with the intention of causing the said Mihoko Numa to fear physical or mental harm. The second charge was of a common assault upon Mihoko Numa at the same place and at the same time. The third offence was a further allegation of common assault upon Mihoko Numa between 3.10pm and 3.20pm on 12 June 2013 at Terry Hills. The appellant pleaded not guilty to each of the three charges. 4. The matter was mentioned at the Downing Centre Local Court on 10 October 2013 when it was set down for hearing on 7 February 2014 with an estimate of three hours. On 7 February 2014 the matter was listed before Magistrate Mijovich. His Honour noted that the then accused, the current appellant, was to be seen at a forensic psychiatric assessment on 3 March 2014 and a report was awaited following upon that examination and that an application would be made under s 32 of the Mental Health (Forensic Provisions) Act 1990. His Honour then adjourned the matter to 10 April 2014. 5. On 10 April 2014 the matter appears again to have come before Magistrate Mijovich who noted that the s 32 application was not being proceeded with. His Honour set the matter down for hearing on 19 May 2014. On that day it came before him. The appellant was represented by Mr Gallagher of Counsel, instructed by Messrs Watts McCray of Parramatta. A Japanese interpreter was present. The matter proceeded by way of the tender by consent of witness statements and an electronically recorded interview with the appellant. When that evidence had been presented the prosecutor closed the prosecution case. Mr Gallagher called no evidence. Mr Gallagher made no submission regarding the commission of the offences alleged. He addressed only on the question of penalty. The learned Magistrate found the offences proved but in respect of each offence recorded no conviction but placed the appellant on a bond to be of good behaviour pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months. Those 18 months expired on 18 November 2015, that is, a month ago. 6. His Honour also made an apprehended violence order for a period of one year. That apprehended violence order expired on 18 May 2015. Whilst there was a formal appeal against the making of that order that appeal was withdrawn and dismissed yesterday because it was otiose to proceed with the application, the AVO having been "spent". 7. The appellant filed a notice of appeal on 16 June 2014. The notice of appeal gives as the ground of appealing from the conviction or order, that he was "not guilty". No formal conviction had been recorded. I do not wish, at this time, to go into the question of whether one can appeal against a finding of an offence proved without the recording of a conviction. That may be a moot point but I have not heard from any lawyer, nor do I intend in the circumstances to research the matter myself. 8. The appeal has been before this Court on a large number of occasions. It was first listed before Judge Blackmore on 6 August 2014. It was before the Chief Judge, Justice Price, on 24 September 2014 and 15 October 2014 when his Honour set the matter down for hearing on 10 December 2014. On 10 December 2014 the hearing came on before Judge Finnane. On that occasion the appeal was, by consent, adjourned to 31 March 2015 for hearing before any District Court judge. 9. However, on the day prior to that hearing date, namely, 30 March 2015 the matter was mentioned before Judge Hanley when it was adjourned and set down as a "three hour severity appeal" on 2 June 2015. However, no application has ever been made to add to the grounds of appeal an appeal against the "severity" of the sentence. His Honour Judge Hanley directed that the matter was to proceed on 2 June 2015. 10. On 1 June 2015 an email was sent by Mr Graham of Counsel to a person in the registry advising that he and Mr Terracini SC were instructed to act for the appellant. Mr Graham advised that the application under s 32 of the Mental Health (Forensic Provisions) Act 1990 was being abandoned. On 2 June the matter was listed for hearing before his Honour Judge Blackmore. Mr Graham of counsel appeared for the appellant. The order made was that the appellant was to file and serve a notice of motion and affidavit, seeking leave to adduce fresh evidence. The documents were to be filed by 6 July 2015 and the notice of motion was set down for hearing on 22 July 2015. On 22 July 2015 the notice of motion was listed before Judge McClintock, apparently it was not then ready to proceed. He noted there was a notice of motion to adduce further evidence. His Honour made an order that all affidavits in support of the notice of motion were to be filed and served by 7 October 2015. The notice of motion which was actually filed on 20 July returnable on 22 July 2015 did not seek leave to adduce fresh evidence as such but sought an order that Mihoko Numa attend to give evidence in the proceedings. This would appear to be an attempt by the appellant to have the "victim" attend for cross-examination. However, that was of little moment if the appellant was to give no evidence. Judge McClintock set the notice of motion down for hearing on 21 October with an estimate of half a day. 11. On 21 October 2015 Mr Singh of Sydney Criminal Lawyers appeared for the appellant, that was the third firm of solicitors that the appellant had instructed. In essence he withdrew the application to adduce fresh evidence and asked for an adjournment in order to make an application under s 32 of the Mental Health (Forensic Provisions) Act 1990. It is that, and only that, application which was put before me yesterday and on which I intended to rule this morning, but the appellant himself withdrew that application and, in essence, seeks an adjournment in order to adduce fresh evidence, namely, evidence from him contesting the evidence that had originally been tendered by consent from Ms Numa back before the Local Court on 19 May 2014. 12. I explained as best I could to the appellant that because the matter was dealt with under s 10 no conviction had been recorded and, therefore, there is nothing adverse to him on any criminal record resulting from what occurred before Magistrate Mijovich on 19 May 2014. I also pointed out to the appellant that the penalties imposed, namely, the AVO and the good behaviour bonds were all spent, that there was nothing that still affected the appellant and that nothing was to be gained by proceeding further with this appeal. However, the appellant then proceeded to address me at some length about various vicissitudes of life which have befallen him and of his "research" into human DNA and his views as to how "bad DNA" can be overcome by nurture, the ancient debate as to whether evil or harm results from nature or nurture or a combination of both. However, the appellant would not tell me if he has any tertiary qualifications, and if so, from what institution and of what nature, because he fears that such "intimate" or "delicate" information fall into the hands of Ms Numa and perhaps of others. 13. The matter is compounded by the fact that I have heard the application under s 32, which in itself was a bizarre application, requesting that I make orders under s 32 when the orders that were made in the Local Court have been spent and which would only expose the appellant to further penalty if he should fail to comply with an order made by the Court under s 32. However, this bizarre application perhaps resulted from the appellant's conduct which is in itself quite bizarre and was evident in court this morning. 14. The appellant was interviewed by Dr Bruce Westmore, a forensic psychiatrist on 3 April 2014. Dr Westmore provided a report on 7 April 2014 which is part of exhibit 3. I shall quote an early part of the report which gives some insight into the appellant's behaviour. On p 2 of his report Dr Westmore said this: "When asked his age, he said 'it is a simple question but life is continuity. If we count the day from when we come out of the delivery room, I think it is unfair. I can tell you what is the number, (but) the purpose of my life is to pass on the message, we cannot think so narrowly otherwise we will not have the ancestors. It is not that I cannot calculate. I have to keep these thoughts to myself'. He went on talking about the importance of ancestors. I ask him, was he single, married, separated or divorced and he said, 'I have never married'. I enquired was he living alone or with others in a rented property and he said, 'I think we are coming into the same philosophy. Nothing belongs to me. A legal piece of document, it is superficial. Nothing belongs to any individual, even if they have a document saying this or that. It is not like I can't answer your question, it is a personal belief and I need to pass on this message'. I then asked him was he working and he responded 'I am always working. Since little, it is always teaching people. It is just a phenomenon (how) people present events. When the people around you, in the past, the future and now. It is how you interpret, it is change. There is something more meaningful in it'". The only real piece of information that one can glean from p 2 of the doctor's report is that the appellant was a vegetarian. 1. On p 4 of the report, Dr Westmore commenced asking the appellant his personal history. The appellant was asked what country he had been born in and he replied "the earth, or galaxy". The appellant did not answer directly about questions concerning his education. Again, he was asked whether he had children and there was a long description of vicissitudes of life which did not directly answer the question. 2. Under the heading "mental state examination" Dr Wesmore recorded this: "Mr Shima presented punctually, he had longish dyed hair. He was wearing black clothes, which included a short black shirt. He had black cotton or wool gloves on both hands. Mr Shima maintained good eye contact and he spoke spontaneously and expansively. Some of his earlier speech patterns were consistent with Formal Thought Disorder (disorganised speech) and he spoke "around" various questions, topics and issues, which were put to him. He did not provide personal information, he preferred to answer to questions of that type in a very vague and philosophical way. He responded in a similar way when asked did he hear "voices". There appears to be a "grandiose theme" to his thought content and I refer to comments he made about his DNA, him [sic] being a mentor to various professors and how his life purpose was to help and assist people. He did not appear to be distracted by auditory perceptual disturbances and I have already commented on some aspects of his thought content. He was alert and attentive, but he requires a full range of investigations." 1. Dr Westmore was unable to provide a diagnosis. On p 7 of his report, he said this: "Mr Shima is clearly presenting in a very odd and peculiar fashion but, at this time, I am not able to reach a provisional diagnosis in relation to his history or clinical presentation. While he was not clearly depressed, he appeared to be a little anxious and he did become tearful towards the end of the assessment. His thought content may have some grandiose themes, it is unclear whether his reluctance to provide personal details about himself reflects an underlying paranoia. His presentation also suggests some very eccentric personality traits and characteristics. Again, it is unclear whether these arise primarily from his personality or whether those characteristics reflect something more sinister in his mental state. He is clearly suffering from a mental condition, which requires quite urgent medical investigation at this time." On the final page of this report Dr Westmore made a recommended treatment plan which required the appellant to urgently consult a general practitioner, that the general practitioner be supplied with Dr Westmore's report and that the appellant undergo a wide range of medical investigations, including an MRI scan of the brain to exclude organic pathology and that he then have appropriate medical treatment which might require consultation with a psychiatrist and the taking of psychotropic medication. 1. Dr Westmore saw the appellant again on 29 May 2015. He obtained a history that Mr Shima had been reviewed by Dr Adams, a psychiatrist, who had then scheduled the appellant under the Mental Health Act. The appellant then fled Dr Adam's office and contacted his solicitors. Subsequently, the appellant was admitted to St Vincent's Hospital as an involuntary patient. Because of a lack of beds he was transferred from St Vincent's Hospital to the Sutherland Hospital at Caringbah and was then under the Community Health Services at Caringbah. This period of hospitalisation appears to have been from 24 November 2014 to 5 December 2014. From what the appellant has said this morning the appellant was sent to see Dr Adams by Mr Winston Terracini SC and Dr Adams, it was, who then scheduled him under the Mental Health Act leading to his being an involuntary patient for the period I have just mentioned. 2. Part of the history obtained by Dr Westmore on this occasion I quote only because it became a large part of the history subsequently given by the appellant to Mr Sam Borenstein, a clinical psychologist: "Mr Shima continued speaking and then he told me that he had been 'raped by two women in the past. The first woman (who raped me) had four children'. He said he is the father of the four children. He said that woman had come to him initially as a client and she wanted his DNA. Mr Shima then said, 'But once I talk about this, you will say, delusion'". I understand the appellant's position now to be that the alleged victim of the assaults, Ms Numa, was a maid working for him and that she "raped" him leading to birth of a son Kito, who as at 13 August 2013, was said to be five years old. 1. Dr Westmore recorded that Dr Adams had thought that when he saw the appellant on 19 November 2014 he was psychotic, that is, suffering from a psychosis. It appears, according to Dr Westmore's second report that Dr Adams was much concerned about the thought content of the appellant. Dr Westmore then speaks of what he read in the notes made at St Vincent's Hospital and the Sutherland Hospital and by the Local Community Health Service and it appears that no definitive diagnosis was made. However, it is clear that if the appellant was psychotic at the time of his admission that psychosis did not continue. On p 10 of his second report, Dr Westmore said this: "Having now had an opportunity to examine Mr Shima at some length on two occasions, I am reluctant to diagnose him as suffering from a specific psychiatric illness. He does present as a somewhat unusual man and that is most evidenced in his presentation. That, however, is neither indicative nor does it confirm that he suffers from a mental illness." He disagreed with the diagnosis of psychosis. He noted that the appellant did not wish to be dealt with under s 32. 1. The application which I heard yesterday was largely based on an opinion of Mr Sam Borenstein who saw the plaintiff for Sydney Criminal Lawyers on 4 November 2015. Because the appellant turned up late to the first interview with Mr Borenstein, Mr Borenstein needed to again interview him on 9 November 2015. Mr Borenstein's history commences thus: "Mr Shima's presentation was unusual from the outset. He was attired as a woman, he wore his hair blonde and long. He wore mirrored sunglasses, a long black dress, which covered his arms, his legs were also covered and he wore gloves". The appellant appeared similarly in Court, but wore neither sunglasses, nor gloves. 1. On p 2 of his report Mr Borenstein said this: "Mr Shima began the interview discussing Japanese submissiveness and DNA research. Mr Shima said he was working on 'nature versus nurture' concepts. My understanding of his verbalisations is that he regards himself as an experiment on DNA research, 'to self -nurture, to change the seed, to change the DNA'". Given the brevity of our initial consultation, Mr Shima was directed to the offence. Mr Shima responded to questions in an over-elaborate and over inclusive manner. He informed me he has four older children born in 1983, 1989, 1991 and 1993. The first child, Primavera, is the only female, currently studying piano in Julliard in New York. Mr Shima claimed he was raped by the children's mother on four separate occasions. The impression given is that Mr Shima's DNA is sought after, as was the case by the mother of his four oldest children. Mr Shima says the mother of the children abandoned Mr Shima and her children. Mr Shima hired an "au pair girl" to care for the children. Mr Shima says he was "manipulated" to return to New York to attend to his daughter's (Primavera) needs. Mr Shima hired Mihoko Numa as his au pair girl, "this is when this woman came into my life, and she raped me". Mr Shima states his fifth child was born on 5 July 2007 and is now aged eight, "she just took him away in 2012. That's what they want. She forced me into a role play. She recorded the role play and told the police I hurt her. She told the Court I am the de facto, I am not the de facto". Mr Shima denies his involvement in the offence, "I am charged with assault. How can I assault someone if I have been raped. I use myself as an example, to improve the final DNA, so nurture can change nature. If you are born and have a bad DNA you can still get married". 1. When the appellant returned to see Mr Borenstein on 9 November he was dressed as he was on the first occasion but on this occasion also wore a surgical mask and ear plugs. Also, during the interview he produced a stethoscope and proceeded to listen to his own heartbeat which he thought was equivalenting to listen to music. He told Mr Borenstein that the reason he dyed his hair blonde is because Ms Mihoko Numa hated blonde people. The appellant told me so much today in his long discursive reason as to why he needed an adjournment. He then told Mr Borenstein that he did not want the matter to be dealt with under s 32 because he wished to bring civil proceedings against Ms Numa and, if he was deemed to be mentally ill, no one would believe him. When Mr Borenstein reviewed the documentation before him he thought that the appellant's presentation to Dr Westmore was similar to how he presented to Mr Borenstein. A further detail later noted in Mr Borenstein's report is that the appellant when at the Sutherland Hospital was treated with an antipsychotic medication which caused him to become increasingly irritable and demanding and led to his threatening legal action against those treating him at Sutherland. 2. Contrary to what was said by Dr Westmore, Mr Borenstein believed that the way the appellant had presented at the Sutherland Hospital suggested that the appellant was undergoing an attack of mania. In his opinion Mr Westmore expressed the view that the appellant's presentation was unusual and had the flavour of a complex delusional system with grandiose theme. He thought the appellant was suffering from a known mental illness or condition. He said this: "In my opinion, Mr Shima suffers Schizotypal Personality Disorder ... Mr Shima satisfies the diagnosis [sic] criteria for that diagnosis. He relates a pervasive pattern of social and interpersonal deficits, acute discomfort, with a reduced capacity for close relationships as well as cognitive or perceptual distortions and eccentricities of behaviour. I am uncertain as to whether such behavioural cognitive perceptual distortions begin early adulthood, which have been present for many years. Mr Shima's symptoms include the ideas of reference, beliefs or magical thinking that influences behaviour and is consistent with sub‑cultural norms, unusual perceptual experiences, odd thinking and speech, which is vague, circumstantial, metaphorical or over‑elaborate and stereotypical, suspiciousness and paranoid ideation. Mr Shima's behaviour and appearance is odd, eccentric and peculiar. He lacks friendships and has no contact with first-degree relatives. I note excessive anxiety, which I suspect does not diminish with familiarity, and tends to be associated with paranoid views rather than negative judgments about self. Schizotypal Personality Disorder has a relatively stable course, with only a small proportion of individuals going on to develop schizophrenia or other psychotic disorders. Schizotypal personality disorder may be first apparent in childhood and adolescence with poor peer relationships, social anxiety, under achievement at school, hypersensitivity, peculiar thoughts and language and bizarre fantasies. Such children may appear odd or eccentric, or attract teasing." I agree with Dr Westmore. A differential diagnosis may evidence a neurodevelopmental disorder which is due to other medical conditions. Mr Shima categorically denies substance or alcohol abuse disorders. Treatment for those who suffer with schizotypal personality disorder is problematic. Such personalities can easily come to the attention of psychiatric services, as was the case when Mr Shima was scheduled to St Vincent's Hospital in 2014. Mr Shima's belief system is well entrenched and unlikely to change. It would be difficult to institute a treatment plan, which would ensure results could be achieved within a six month period." The doctor went on to point out that personality disorders are lifelong conditions and then he went on to suggest what treatment might help the appellant but he did not put it in any formal treatment plan as such. 1. When I tried to ascertain from the appellant why he wanted the adjournment it was to contest his having the offences alleged against him proved but the real reason appears to justify his own views about DNA and the like, to suggest that the alleged victim Ms Numa had bad DNA, and ultimately the only reason was for the edification or instruction of his own offspring so that they knew that their father was a good man and that their mother or stepmother, as the case might be, was a bad woman. That is as much as I could glean from the discursive reasons given by the appellant. 2. In my view, no good reason can be given for permitting these proceedings to stay on foot any longer. Legally they are spent. No conviction has been recorded. Such penalties as were imposed have been spent. Were I to grant an adjournment it would be necessary for the appellant to again proceed by way of notice of motion and affidavit, to adduce reasons why he should be granted leave to adduce further evidence and as to the evidence that was to be adduced and, for example, that he required Ms Numa for cross‑examination. To make such an application he would require legal assistance. He has now had three different firms of solicitors and two separate sets of Counsel. Given what I have said about the appellant's presentation to the psychiatrist it is highly unlikely that any legal practitioner would wish to take on the appellant's case and prepare the sort of application he would have this Court entertain. In other words, in my view, the granting of the application would be a futility and long-term would achieve nothing, and other than more distress to Ms Numa and more distress to the appellant himself. Things are now "spent" and nothing is to be no one's real interests are objectively to be advanced by the granting of an adjournment. 3. For those reasons the application for the adjournment is refused. 4. For many of the reasons which I have already given, I should indicate that had the appellant not withdrawn the application under s 32, I would have refused it because to grant the relief was an otiose exercise: the previous penalties having been imposed being spent there was no point in law in exposing the appellant to the possibility of any further legal sanction. 5. Now Mr Shima, unless you've got some other application, I intend to dismiss this appeal for want of prosecution. Yes. What do you wish to say now? 6. APPELLANT: Your Honour, am I allowed to make my final statement in two or three minutes? 7. HIS HONOUR: Yes. What is it? 8. APPELLANT: I think the psychiatrist, your Honour, and everyone present at present deserve to know it's also concerned am I a violent person or am I capable to have any violent act and I think I have a responsibility to present that. Number 2, there's G Golgo 13. G-O-L-G-O and then numeric 13, 1-3. This is an extremely violent and a sexual video. Mihoko Numa in order to force me to do a lot of things, unspeakable things for her, she was go as far as to show a four year old Kito, when he was four, constantly exposing him to this many program, including Golgo 13, G-O-L-G-O and space, numeric 13. If you search internet that's an extremely violent and the sexual content that even in Japan the adults was feeling uncomfortable watching that. 9. HIS HONOUR: Look, Mr-- 10. APPELLANT: Yes. 11. HIS HONOUR: I don't research anything on the internet, that's not my role. 12. APPELLANT: Yes. 13. HIS HONOUR: My role is to adjudicate on matters-- 14. APPELLANT: Yes. 15. HIS HONOUR: --put before by the parties. If you have any concerns about the behaviour of Ms Numa-- 16. APPELLANT: Yes. 17. HIS HONOUR: --towards your son you can complain to either the Department of Family and Community Services. 18. APPELLANT: Yes, I will. 19. HIS HONOUR: Or the police. I suspect that you might get further with Family and Community Services than the police. All right. 20. APPELLANT: Yes. Thank you, so much. 21. HIS HONOUR: But that's the way to go. 22. APPELLANT: Yes. 23. HIS HONOUR: If you have any concerns about the health of any of your children who are still under 18 years of age, go to Family and Community Services. 24. APPELLANT: Thank you, so much. I thank everybody. 25. HIS HONOUR: There being no further application before me, I dismiss the appeal for want of prosecution. The Court will adjourn. ********** 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: 05 September 2016