District Court New South Wales Medium Neutral Citation: R v Mutia [2014] NSWDC 390 Hearing dates: 15 - 16 April 2014 Date of orders: 16 April 2014 Decision date: 16 April 2014 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Find the accused not guilty by reason of mental illness. Catchwords: CRIMINAL LAW – Judgment – Judge alone trial – Intention and the defence of mental illness – Sexual intercourse without consent – Inflict grievous bodily harm – behaviour consistent with schizophrenia. Legislation Cited: Mental Health (Criminal Procedure) Act Mental Health (Forensic Provisions) Act Cases Cited: Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 50 Category: Principal judgment Parties: The Crown Feri Mutia Representation: Counsel: B Rowe – The Crown Solicitors: Director of Public Prosecution – The Crown Legal Aid Commission – The Accused File Number(s): 2013/196300 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant. Judgment 1. HIS HONOUR: Yesterday, 15 April 2014, Feri Mutia was arraigned on an indictment containing three counts. They all relate to his conduct towards a woman with whom he was in a relationship at the time of the allegations, DS. He pleaded not guilty to those counts. 2. It was made clear to me at all stages that Mr Mutia's plea of not guilty was based on the proposition that he had available to him a defence of mental illness. The Crown made it clear equally that it was not contending that that defence was not available. 3. Yesterday, at the start of the trial, I was advised that Mr Mutia had made an application that his trial be conducted before a judge alone; that is without a jury. I noted that an appropriate election had been filed and that the application for this mode of trial had been consented to by the Director of Public Prosecutions. 4. The Crown then tendered a folder of material containing statements of witnesses, in particular, of course, DS, photographs, diagrams and the like, as well as three reports of forensic psychiatrists, one from Dr Skinner, which had been obtained by the prosecution, and two from Dr Furst, which had been obtained by Mr Mutia's solicitors. 5. It was accepted that if those witnesses had been called to give evidence, they would have given oral evidence to the same effect as that contained in their statements and reports. In effect I was invited to find and to accept that the facts deposed in those statements and reports had been made out. 6. The relationship between intention and the defence of mental illness and the procedure to be followed where the Crown needs to prove intent and an accused needs to prove that he or she was mentally ill at the time of offending has been considered by the High Court in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500. Consistent with that authority, it is first for me to decide whether the accused did the acts which amount to the offences with which he has been charged, then to consider whether he has persuaded me on the balance of probabilities that he was mentally ill at the time those acts were committed, and only if that is resolved in a manner adverse to the accused do I then proceed to determine questions of specific intent. 7. Accordingly, I make the following findings of fact. As far as count 1 is concerned, the accused did have sexual intercourse with DS, that being without her consent. It is unnecessary for me to detail the precise and somewhat distressing circumstances in which that sexual intercourse took place. It is accepted by Mr Mutia that he did the relevant acts. Similarly, as far as count 2 is concerned, I find beyond reasonable doubt that Mr Mutia again had sexual intercourse with DS without her consent. 8. Later on, and this is relevant to count 3 on the indictment, the accused intentionally inflicted actual bodily harm upon DS. The circumstances in which that actual bodily harm occurred I am satisfied show that it was Mr Mutia's intention to have a further act of sexual intercourse with DS. 9. That brings me to the question which is at the heart of this trial, which is whether Mr Mutia has persuaded me on the balance of probabilities that he was mentally ill at the time of his offending. 10. The agreement between the parties as to the appropriate outcome of this trial does not relieve me from the obligation of satisfying myself that the accused has proved what he has to prove in order to avail himself of the defence of mental illness. In one sense agreement between the parties makes my job harder, not easier. It becomes, in a situation where the parties are in agreement, for me to identify possible deficiencies in the cases presented by the accused and the Crown, and to closely examine whether I can rely on the opinions of the psychiatrists, whose statements were tendered and who in one case gave oral evidence. This I have done. 11. Before I review the evidence of the psychiatrists, I need to place the decision I will be making in context. The verdict of not guilty on the grounds of mental illness is an appropriate reflection of what is required for the proof of guilt in criminal jurisdiction. Just as we do not punish children under the age of ten for what would otherwise be criminal activities, we do not punish people for their conduct where, relevantly in this case, they are not able to reason with a moderate degree of sense of composure as to the wrongfulness of their conduct. In this jurisdiction we do not punish people for wrongful actions alone. 12. Difficult though it may be for some people to understand, especially those who, like DS, were the victims of serious criminal conduct and who suffer lasting effects from that conduct, the criminal law punishes those who, to over simplify things significantly, have had a choice as to whether they would perform a wrongful act or not. In a very real sense the accused was unable to make that choice in this case because of the mental illness from which he suffered. 13. That is not, of course, to say that the law washes its hands of the threat which the accused poses to members of the community. A finding of not guilty on the grounds of mental illness does not mean that the accused is necessarily set free. Once I find that the accused is not guilty on the grounds of mental illness, I must order that he is detained in custody, unless I am satisfied on the balance of probabilities that the safety of any person or member of the public will not be seriously endangered by his release. 14. If I do decide that he should be remanded in custody because I am satisfied that his release would seriously endanger someone, he is kept in custody until he is released by due process of law. That means that he is only released if the Mental Health Review Tribunal is satisfied that the safety of any member of the public would not be seriously endangered by his release. So it can be seen that in contrast to a simple finding of not guilty, a finding of not guilty on the grounds of mental illness requires that the accused be kept in custody until it is safe to release him. 15. These observations as to the consequences of a finding of not guilty on the grounds of mental illness must be borne in mind by those who would otherwise think that such a finding results in dangerous people being released into the community and set free. 16. Had there been a jury in this matter, I would have had to direct them in accordance with s 37 of the Mental Health (Criminal Procedure) Act as to the legal and practical consequences of a finding that the accused was mentally ill. I mention these matters for a different purpose in this judgment, to assure those who might otherwise be concerned that despite the finding I make, if necessary steps will be taken to protect members of the community from further acts of criminality by the accused. 17. In this case the accused's actions in sexually assaulting DS came in a period of what all agree was bizarre behaviour. DS herself reports strange behaviour of the accused, in which he began acting in a way which later was found by the psychiatrist to be consistent with paranoia. He was convinced apparently that DS was having an affair with her former husband. He reported hearing voices. He began putting clothing in a bathtub and thus blocking the outlet and turning the water on. He burnt papers relating to DS's former husband. 18. His strange behaviour was not only observed by DS either, neighbours noticed what was going on. One in particular, Mr Nabraeger, becoming so concerned that he put a knife next to his front door and a baseball bat in the bedroom, worried that Mr Mutia was going to kill Mr Nabraeger and his wife. 19. This bizarre behaviour, later diagnosed to be consistent with schizophrenia, is unfortunately not the first time that Mr Mutia has acted strangely. 20. He was born in Indonesia and, as far as can be ascertained, has never exhibited any psychiatric problems while living there, but once he came to Australia there have been a number of episodes of behaviour of sufficient concern to have Mr Mutia admitted to hospital and anti‑psychotic medication given to him. 21. In particular Mr Mutia was admitted to the east wing, psychiatric wing, of Manly Hospital, in late 2010, after exhibiting aggressive behaviour at Dee Why beach. He was found on admission to be disorganised, aggressive and psychotic, and he had paranoid delusions of persecution by the government. Upon his discharge he was referred to a mental health treatment team. 22. This was not his first admission to Manly Hospital. About a year earlier he was found to be throwing rocks at a statue on the grounds of a church in Dee Why. He was assessed in the Emergency Department of Manly Hospital. He told the doctor there that he was almighty and powerful and controls all things. 23. Upon his arrest for these offences on 20 June 2013, police observed him to be acting bizarrely as well. He was admitted shortly after arrest to Concord Hospital. He was highly agitated and required emergency sedation. His anti‑psychotic medication was recommenced, him having ceased taking that medication some months before the events of 20 June 2013. 24. Dr Furst has seen Mr Mutia on a number of occasions. At first he diagnosed him as suffering from a schizoaffective disorder, but after reviewing further material Dr Furst now believes that he is suffering from schizophrenia. That is a chronic psychotic illness which is often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty in processing information, mood symptoms and bizarre behaviour. It appears that Mr Mutia has exhibited all of those characteristic behaviours. 25. He believed that his partner was being unfaithful to him. He told DS of his feelings, saying, "I'm really scared something bad is going to happen," and I have already mentioned causing the bath to overflow and burning documents belonging to DS's ex-husband. 26. It is Dr Furst's opinion that as a result of Mr Mutia's schizophrenia, he was unable to reason about his actions on 20 June 2013 with a moderate degree of sense and composure. That came about because of his acutely psychotic state, paranoia about his wife's infidelity, gross disturbance in his mood and behaviour, being irrational, and insightless into being mentally unwell. I am satisfied on the balance of probabilities that I should accept Dr Furst's opinion. It is entirely consistent with the wealth of evidence as to Mr Mutia's behaviour both before the 20 June, around 20 June and subsequently. Mr Mutia was, and indeed the evidence would suggest still is, seriously unwell. 27. Although that is enough for me to determine the issue before me, I should say something about another aspect of the evidence that was raised in the report of Dr Skinner. She expressed the opinion that Mr Mutia did not know what he was doing; that is did not appreciate the nature and quality of his act. Dr Furst does not agree and nor do I. I am not persuaded on the balance of probabilities that Mr Mutia did not appreciate the nature and quality of his actions in having sexual intercourse with DS on two occasions and then inflicting actual bodily harm upon her, with intent to have a further act of sexual intercourse with her. 28. This was not purposeless behaviour nor was it itself bizarre. I think it much more likely that the accused knew what he was doing than the contrary, but it remains the case that what is sometimes described as the second limb of the M'Naghten Rules has been made out by the accused for the reasons I have given. 29. In light of the evidence before me, taking into account the position adopted by both parties, I am satisfied on the balance of probabilities that the accused, for the reasons I have indicated, is not guilty by reason of mental illness of the three counts on the indictment faced by him. 30. FURTHER SUBMISSIONS AS TO SUBSEQUENT ORDERS 31. Having found the accused not guilty on the grounds of mental illness and in light of the evidence of Dr Furst as to the present condition of Mr Mutia, I order that Mr Mutia is to be detained at the Forensic Hospital at Long Bay until released by due process of law. 32. I request the Registrar of this Court, consistent with s 39(3) of the Mental Health (Forensic Provisions) Act to notify the Minister for Health and the Mental Health Review Tribunal of the order I have just made. 33. FURTHER SUBMISSIONS RE MATTER ON S166 CERTIFICATE 34. HIS HONOUR: I note that the matter has been withdrawn an dismissing the appeal it ********** Amendments 19 December 2018 - Cover sheet amendment 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: 19 December 2018