Director of Public Prosecutions v Al-Salami
[2016] VSC 353
•22 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0014
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREEM AL-SALAMI |
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S CR 2015 0014
JUDGE: | Hollingworth J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2015 and 22 June 2016 |
DATE OF REASONS: | 22 June 2016 |
CASE MAY BE CITED AS: | DPP v Al-Salami |
MEDIUM NEUTRAL CITATION: | [2016] VSC 353 |
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CRIMINAL LAW – One charge of attempted murder, three charges of common assault and one charge of making a threat to kill – Consent mental impairment – Custodial supervision order
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Pirrie | Solicitor for Public Prosecutions |
| For the Accused | Mr S Moglia Mr J Fitzgerald | Victoria Legal Aid |
HER HONOUR:
Kareem Al-Salami was charged with one count of attempted murder, three counts of common assault, and one count of making a threat to kill.
The charges arose out of an incident at the Western General Hospital in Footscray, on 18 February 2014, in which he attacked his neurosurgeon, Dr Michael Wong, and several members of hospital staff and the public who tried to intervene.
Mr Al-Salami suffers from schizophrenia, with delusional disorder and paranoid personality disorder. Following an operation performed on him by Dr Wong, Mr Al-Salami developed delusional thoughts that the operation had gone wrong, and that Dr Wong was conspiring to cover it up.
By agreement between the prosecution and the defence, the matter proceeded as a consent mental impairment matter, pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”).
The offending
In 2011, Mr Al-Salami sustained two work-related back injuries, and developed symptoms of severe pain and numbness.
In April 2012, Dr Wong operated on Mr Al-Salami by way of cervical discectomy and fusion. The operation went well, however, Mr Al-Salami consequently developed pain in his neck, back, leg and arm. Mr Al-Salami attended further appointments during 2012, and was put on a waiting list for chronic pain referral.
In 2013, Mr Al-Salami was advised to have a nerve root block performed, but declined to do so as he was worried about the risks. Dr Wong informed Mr Al- Salami that, without the operation, it was unlikely his leg pain would improve.
Dr Wong saw Mr Al-Salami again in December 2013. On that occasion, Mr Al-Salami complained of an onset of gradual intermittent headaches, and an electric shock type of sensation around his neck and face. Dr Wong investigated, and determined that no surgical intervention was required.
Throughout the latter part of 2013, and up until the time of the offending, Mr Al-Salami gradually developed a delusional belief that his operation had gone wrong, and that Dr Wong was conspiring with others to cover this up.
On 18 February 2014, Mr Al-Salami attended the hospital around 8.00 in the morning, for his next appointment with Dr Wong; he waited in the foyer. Dr Wong arrived at the hospital shortly after, and entered the foyer around 8.20 am.
When Mr Al-Salami saw Dr Wong walk past him, he produced a long, black-handled, stainless steel, Wiltshire knife and yelled “bastard I kill you”. He then stabbed Dr Wong in the back, causing him to fall to the ground. Mr Al-Salami continued to stab Dr Wong as he was on the ground screaming for help. This conduct constitutes charge 1 (attempted murder).
A patient at the hospital, Andrew Dilollo, witnessed the attack and called out for Mr Al-Salami to stop. Mr Al-Salami then held the knife towards Mr Dilollo and stepped towards him in a threatening manner. This constitutes charge 2 (common assault).
Mr Al-Salami continued to stab and slash at various parts of Dr Wong’s body. Hospital nurse, Joanne McIntyre, and surgical intern, Rebecca Biron, moved towards Mr Al-Salami, in order to drag him away from Dr Wong. Mr Al-Salami turned towards them, and threated both of them with the knife. This constitutes charges 3 and 4 (common assault).
Mr Dilollo threw his backpack at Mr Al-Salami, and the three witnesses again tried to move towards Dr Wong. Mr Al-Salami pointed the knife at them again.
Another staff member, Vinay Dass, ran at Mr Al-Salami holding a sign board; he tried to distract him until security arrived. During this time, the other three witnesses managed to get hold of Dr Wong, and drag him away from the foyer.
Another witness, Abdul Siddiqi, moved towards Dr Wong and Mr Al-Salami as an attempt to prevent further injury. Mr Al-Salami raised the knife towards him and said “Get out or I will kill you”. This constitutes charge 5 (Making a threat to kill).
Without the courage and quick-thinking of those staff and members of the public – in distracting Mr Al-Salami and moving Dr Wong away from danger – the attack on Dr Wong would have been likely to continue, with possibly fatal consequences.
Mr Al-Salami was arrested by police a short time later, without further incident.
Dr Wong was transported to the emergency department, where he was attended to by 10 doctors and medical staff. Had Dr Wong not received that immediate, lifesaving surgery, it is highly likely that he would have died.
Victim impact
Dr Wong provide a report to the court under s 42 of the Act, in which he set out the effects of the offending on him.
Mr Al-Salami’s actions have had a profound impact on Dr Wong’s views about the safety and security of medical staff, including himself. He is acutely aware that, without the immediate and expert help he received from others, he could easily have died.
As an experienced health practitioner, Dr Wong understands the nature and complexity of serious mental illness, and feels no anger towards Mr Al-Salami. He also understands how Mr Al-Salami’s poor English skills, and lack of adequate family and community support, compounded his mental illness, culminating in the events of February 2014.
After the attack, it took a long time for Dr Wong to rebuild a sense of trust with other patients who needed his assistance. Fortunately for the community, Dr Wong has been able to return to his important work. But what happened to Dr Wong has made him concerned to ensure that the community does a lot more than it is currently doing, to protect hospital workers from attacks by violent patients such as Mr Al-Salami (or from persons affected by drugs or alcohol).
Mr Al-Salami’s mental health
Following his arrest on 18 February 2014, Mr Al-Salami was seen by a forensic registrar, Dr Clare-Anne McKeon. Dr McKeon performed a mental state examination, and was of the opinion that Mr Al-Salami displayed paranoid thoughts with a possible fixed delusion concerning his treatment by Dr Wong. Dr McKeon found Mr Al-Salami unfit for police interview, and he remained in custody for a further psychiatric assessment.
From 20 February 2014, Mr Al-Salami received follow up psychiatric assessments at the Melbourne Assessment Prison, including by consultant psychiatrists Dr Douglas Bell (who thought that Mr Al-Salami was likely experiencing a paranoid delusional disorder, with the possibility of late-onset schizophrenia), and Dr Andrew Carroll (who thought that Mr Al-Salami may have been experiencing depression with psychotic features). Mr Al-Salami was admitted to the acute assessment unit of the prison on 1 May 2014. He was transferred to Thomas Embling Hospital (“TEH”) for inpatient psychiatric assessment and treatment for 5 months, from 20 August 2014 to 29 January 2015.
The discharge summary from TEH indicates that by the end of his admission, there was only minimal improvement to Mr Al-Salami’s mental health. The final diagnosis was delusional disorder (persecutory type), paranoid personality disorder and chronic pain.
Dr Owens
Mr Al-Salami’s solicitors commissioned a report by consultant psychiatrist, Dr Nicholas Owens. Dr Owens interviewed Mr Al-Salami at Melbourne Assessment Prison on 23 February 2015, and produced a report dated 14 April 2015. In his report, Dr Owens addressed the availability of the defence of mental impairment under of the Act. His opinion was that the offending conduct was directly related to Mr Al-Salami’s delusional thinking, which had formed the central preoccupation of his life. He concluded that, on the balance of probabilities, Mr Al-Salami was unable to reason with a moderate degree of sense and composure at the time. Therefore, according to Dr Owens, the defence of mental impairment was open to Mr Al-Salami under s 20(1)(b) of the Act.
Dr Brennan
The OPP commissioned a psychiatric report from the Victorian Institute of Forensic Mental Health (“Forensicare”), which was provided by consultant forensic psychiatrist, Dr Ann Brennan. Dr Brennan interviewed Mr Al-Salami at Melbourne Assessment Prison on 21 July 2015, and produced a report dated 31 August 2015.
Upon review of the depositions, medical and psychiatric records and reports, and her examination of Mr Al-Salami, Dr Brennan expressed the view that Mr Al-Salami was experiencing a psychotic illness characterised by paranoid delusions and auditory hallucinations, leading to a state of distress and fear. She diagnosed Mr Al-Salami with late onset paranoid schizophrenia, which gradually worsened over 2013, with florid symptoms (including a more marked perceptual disorder) being evident in the weeks and months leading up to the offending.
Because of Mr Al-Salami’s active symptoms of untreated paranoid schizophrenia at the time of the offending, Dr Brennan agreed with Dr Owens’ conclusion that Mr Al-Salami would have a mental impairment defence available to him.
Accordingly, the matter proceeded on 14 December 2015 as a consent mental impairment hearing.
After reading the comprehensive reports from both psychiatrists I was satisfied, on the balance of probabilities, that at the time of engaging in the conduct constituting each of the offences, Mr Al-Salami was suffering from a mental impairment that had the effect that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. On that basis I directed, pursuant to s 21(4)(a) of the Act, that a verdict of not guilty by reason of mental impairment be recorded in relation to each of the charges.
I declared, pursuant to s 23 of the Act, that Mr Al-Salami was liable to supervision under Part 5 of the Act.
I also ordered, pursuant to s 41 of the Act, that a report prepared by a registered medical practitioner or registered psychologist at Forensicare be filed with the court.
Dr Clare McInerney of Forensicare interviewed Mr Al-Salami on 8 February 2016, and provided the s 41 report, dated 25 February 2016. In her report, Dr McInerney set out her opinion as to Mr Al‑Salami's current mental state and his treatment requirements. Among other things, she noted that Mr Al‑Salami still retained the same delusional beliefs that he had at the time of the offending, and that he has not responded well to the various antipsychotic treatments which have been trialled so far. Given that fact, she concluded that the risk of violence had not substantially decreased since the offending.
Dr McInerney’s opinion is that Mr Al-Salami requires a comprehensive, multi‑disciplinary treatment and rehabilitation plan, which could only be facilitated by a custodial supervision order, and would be best provided at TEH. I accept that opinion.
Unfortunately, there is (and has been for some time) a waiting list of psychiatrically unwell offenders requiring admission to TEH. Through no fault of the hospital, it is simply stretched beyond its capacity and resources. In a letter to the court from Forensicare, dated 26 February 2016, Forensicare noted that there were three other people who had been declared liable for supervision by this court, who were on the TEH waiting list ahead of Mr Al‑Salami. Forensicare notified the court that it was not expected that a place would be available before 15 June 2016.
Without an available place at TEH, the only practicable option for the court would be to commit Mr Al-Salami to custody in prison. Given the seriousness of his psychiatric illness, that would not be in the interests of Mr Al-Salami, or of the broader community into which he will eventually return.
On 21 June, the court was provided with a certificate of available services under s 47 of the Act, which stated that TEH would be able to provide the necessary facilities and resources to treat Mr Al-Salami with effect from 22 June 2016.
Accordingly, I will order that:
(1)A custodial supervision order be made pursuant to s 26 of the Act.
(2)Mr Al-Salami be committed to the custody of the Victorian Institute of Forensic Mental Health, to remain at the Thomas Embling Hospital.
(3)Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years from 18 February 2014, which includes the declared period of 855 days (excluding today) during which he has been held in custody or detained at TEH.
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