Director of Public Prosecutions v Dick

[2021] VSC 881

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0063; S ECR 2020 0064

THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
JONATHAN EDWARD DICK	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2020
DATE OF RULING:	3 September 2020 and 28 May 2021
DATE OF REVISED REASONS:	23 May 2022
CASE MAY BE CITED AS:	DPP v Dick
MEDIUM NEUTRAL CITATION:	[2021] VSC 881

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CRIMINAL LAW — Plea of not guilty by reason of mental impairment — Charges of murder, attempted murder and stalking — Consent mental impairment — Trial by judge alone —Accused found not guilty by reason of mental impairment — Accused placed on a custodial supervision order — Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) ss 20, 21, 23, 26, 28, 41, 47.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke at hearing on 1 September 2020 and ruling on 3 September 2020 Ms Kathryn Hamill at ruling on 28 May 2021	Office of Public Prosecutions
For the Accused	Mr P Tiwana	Dribbin & Brown Criminal Lawyers

PART I

HIS HONOUR:

1           On 1 September 2020 in this Court, Jonathan Edward Dick (‘the accused’) was arraigned and pleaded not guilty to the three charges in the indictment filed.  Those charges were:

1.the murder of his brother David Andrew Dick on 3 February 2017;

2.the attempted murder of David Cammarata on 23 August 2018; and

3.the stalking of David Cammarata between 29 July 2019 and 19 August 2019.

2 The accused’s pleas of not guilty to those three charges were made on the sole basis that, at the time of the events giving rise to the charges, he was suffering from a mental impairment that meant he did not know that the conduct that he engaged in was wrong within the meaning of s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’).[1]

[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(1)(b).

3 The prosecution and counsel for the accused agreed that the evidence established the defence of mental impairment and, pursuant to s 21(4) of the Act, this matter therefore proceeded before me as a trial judge alone rather than before a jury.[2]  That section enables the trial judge, if satisfied that the evidence establishes on the balance of probabilities the defence of mental impairment, to direct that a verdict of not guilty because of mental impairment be recorded.[3]  In the event that I was not so satisfied, then the accused would have to be tried by a jury.[4]

[2]Ibid s 21(4).

[3]Ibid ss 21(2)(b) and 21(4)(a).

[4]Ibid s 21(4)(b).

4           Having considered the relevant law, the evidence before the Court and both parties’ submissions that the defence of mental impairment was made out, I gave ex tempore reasons that the evidence established on the balance of probabilities that the accused was not guilty of the charges by reason of mental impairment.  My reasons for that conclusion follow.

Circumstances of the offending

Charge 1: The murder of David Dick

5           On 3 February 2017, the accused struck his younger brother, David Dick, to the face with a sword as he got out of the elevator of a parking garage at a Doncaster shopping centre.  The accused then used a knife to inflict multiple incised and stab wounds to the head and neck of David Dick.  The attack on David Dick was recorded on  closed-circuit television (‘CCTV’) near the elevator.  I have viewed that footage, and it reveals that the attack by the accused on his brother lasted for some 66 seconds.  The accused then left the shopping centre on foot.

6           When family members tried to notify the accused of his brother’s death, they were unable to contact him, which prompted them to report him as a missing person. However, the family became aware a few days later that he was, in fact, his brother’s assailant. For more than two years, the accused lived in various makeshift accommodation or on the streets for periods of time.

Post-mortem

7           A post-mortem of the deceased showed that he had a ‘chop injury’ to the right side of the face and nose extending through the right nasal cartilage, maxillary bone and vocally into the right middle cranial fossa.  That injury is consistent with the initial blow from the sword as seen in the footage.

8           The post-mortem also revealed that the deceased man suffered nearly 20 distinct sharp force injuries to the head and neck region as well as multiple defensive injuries to his hands and arms.  The deceased’s left and right jugular veins were completely severed, and his right carotid artery was also completely severed.  The left carotid artery was almost completely severed.  The cause of death was a catastrophic haemorrhage from multiple sharp force injuries to the head and neck inflicted by the accused.

Charge 2: The attempted murder of David Cammarata

9           On 23 August 2018 at approximately 6:47 am, the accused attacked his long-time friend David Cammarata as he walked down the front steps of his residence.  The accused attempted to strike Mr Cammarata with a pick hammer to the head.  Mr Cammarata flinched, causing a glancing blow when the hammer struck the back right side of his head.  Following a brief struggle, the accused ran off and again disappeared for a period of time.  This attack was also recorded on CCTV from a passing waste disposal truck. 

10        A review by investigators of the neighbouring Keilor CCTV footage established that in the week prior to the incident, the accused was in the immediate vicinity of Mr Cammarata’s residence on a number of days. 

Charge 3: The stalking of David Cammarata

11        On 19 August 2019, the accused was sighted by Mr Cammarata to be loitering near the entrance to the CBD car park where Mr Cammarata regularly parked before walking to work.  Mr Cammarata and a work associate who was accompanying Mr Cammarata at the time chased the accused.  With the assistance of a passing pedestrian, the accused was subdued.  Police were notified and attended the scene, where they arrested the accused.

12        A later examination of the CCTV footage around the area of the park identified the accused conducting surveillance in this car park on 29 and 30 July 2019, and on 1, 5, 7, 8 and 12-14 August 2019.  Those activities comprised the charge of stalking.

Mental impairment

13        No question of the accused’s fitness to be tried has arisen, however there is a clear issue of whether he was mentally impaired at the time of the offending.

14 To assist the Court in determining the issue of mental impairment, two consultant forensic psychiatrists, Dr Rajan Darjee and Dr Anthony Cidoni, have assessed the accused on behalf of the defence and prosecution respectively. Both Dr Darjee and Dr Cidoni have prepared reports in which they reach the same conclusion that the accused was mentally impaired within the meaning of the Act at the time of the offending. Both psychiatrists also gave viva voce evidence before me at the hearing on 1 September 2020.

Dr Darjee’s evidence

15        Dr Darjee prepared two reports, the first on 25 March and an addendum report on 6 April 2020.  The two reports separately covered the charge of murder and the charges of attempted murder and stalking.  Dr Darjee interviewed the accused prior to preparing each report, first on 29 January 2020 and again on 2 April 2020.

16        Dr Darjee diagnosed the accused as suffering from paranoid schizophrenia and concluded he meets the DSM-5 criteria for this condition.  In Dr Darjee’s opinion, the accused likely started to develop this illness in 2011 and, by 2012, the accused was experiencing bizarre, grandiose, self-referential and persecutory delusions.  These continued until he was treated in custody after his arrest.  Dr Darjee described the accused’s delusional system as ‘encapsulated’ in that he was able to organise and function in areas of his life which were unaffected by his delusional ideation. 

17        In relation to the accused’s mental state at the time of the alleged murder, Dr Darjee opined that the accused was clearly suffering from symptoms of severe mental illness at the time of the attack on his brother.  He stated that the accused was consumed by delusional beliefs, which were manifestations of his paranoid schizophrenia.  Dr Darjee described the accused as believing that he had been directed to kill his brother by his father and by a girl from his school, and that he felt he had no choice but to do so.  He had become determined to carry out this killing because of his belief that he had no choice and that it was the right thing to do.  He chose a method of killing his brother that he thought would be effective and quick. 

18        In his report Dr Darjee said:

[The accused’s] paranoid schizophrenia was the causal and only factor that led to the attack on his brother and there were no other significant contributory factors unrelated to his severe mental illness… The attack appears to have been entirely delusionally driven.  The emotional blunting caused by his mental illness probably also played a role in allowing him to act on his delusions by killing his brother.

Therefore, in my view, at the time of the alleged murder he did not know his conduct was wrong and he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. 

19        In his second report, Dr Darjee confirmed his diagnosis of paranoid schizophrenia.  In relation to the offences against Mr Cammarata, Dr Darjee stated:

As with the attack on his brother, [the accused’s] paranoid schizophrenia was the causal and only factor that led to the attack on and stalking of David Cammarata, and there were no other significant contributory factors unrelated to his severe mental illness.

He continued:

Therefore in my view, at the time of the alleged attempted murder and stalking he was suffering from a mental disease, he did not know his conduct was wrong and he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.

20        In the course of his evidence, Dr Darjee referred to the accused’s drug use and said that his cannabis consumption may have played some role in the illness developing from 2010 onwards.  Dr Darjee also indicated that with treatment in custody the accused has developed what he described as “quite a good level of insight into his illness” and the false memories and delusions have begun to disappear.  He confirmed that the accused’s offending was entirely driven by his delusions and beliefs.   

Dr Cidoni’s evidence

21        Dr Cidoni prepared his report on 18 May 2020.  After reviewing all the material, including both of Dr Darjee’s reports, and examining the accused on 1 May 2020, Dr Cidoni concluded that the accused had a clear history of paranoid schizophrenia.  He said:

In my opinion, for both sets of offences Mr Dick was labouring under the effects of a severe psychotic illness with persecutory delusions, bizarre delusions, delusional memories and delusions of reference.

His actions were solely driven by his acutely psychotic state and I can find no other factor that contributed to them. 

He believed he had a destiny to harm both the victims for their past misdeeds and they had been incorporated in his complex and disorganised delusional system.  As far as his brother was concerned, his actions were to prevent something bad happening to others and the timing was influenced by his birthday. 

In my opinion, Mr Dick was aware of the nature of his actions.  His capacity to appreciate the wrongfulness of his actions was significantly impaired by his acute psychosis, and as such he was clearly unable to reason with a moderate degree of sense and composure that his conduct was wrong.

22        In his evidence, Dr Cidoni confirmed the correctness of his report and the conclusions that he had reached.

Conclusion

23 Considering Dr Darjee and Dr Cidoni’s unchallenged evidence, and the parties’ concurring submissions that the defence of mental impairment is made out, I am satisfied on the balance of probabilities that at the time the accused committed the offending he was suffering from a mental impairment such that he did not know what he was doing was wrong, pursuant to s 20(1)(b) of the Act.

24 I therefore direct a verdict of not guilty by reason of mental impairment be recorded in relation to all three charges on the indictment, pursuant to s 21(4) of the Act.

25 I declare pursuant to s 23(a) of the Act that the accused is liable to supervision under Part 5 of the Act.[5] 

[5]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 23(a).

26 I direct that within 30 days a report on the mental condition of the accused pursuant to s 41 of the Act be provided to the Court.[6] I also request a certificate of available services pursuant to s 47 to be provided to the Court as soon as possible.[7]

[6]Ibid s 41.

[7]Ibid s 47.

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PART II

HIS HONOUR:

27 On 5 November 2020, I received a report authored by consultant psychiatrist Dr Mark Ryan dated 30 October 2020 pursuant to s 41 of the Act. In that report, Dr Ryan recommended that the accused be placed on a custodial supervision order (CSO) at Thomas Embling Hospital.

28 The Court received a certificate of available services dated 5 November 2020 pursuant to s 47 of the Act confirming that there was no bed available for the accused at Thomas Embling Hospital at that time. There remained no bed available at Thomas Embling Hospital when the matter returned before me on 30 November 2020. As such, I adjourned the matter on this date for a period of approximately six months, to return to Court on 28 May 2021.

29        The Court received a further certificate of available services dated 25 May 2021 confirming that, should the Court decide to place the accused on a CSO, treatment could be provided through inpatient services at Thomas Embling Hospital from 28 May 2021.

30 Considering Dr Ryan’s report pursuant to s 41, and the certificate of available services dated 25 May 2021, I made the following orders at the hearing on 28 May 2021:

1. Pursuant to s 26(2)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), Jonathan Edward Dick is committed to the custody of the Victorian Institute of Forensic Mental Health (Forensicare) on a custodial supervision order.

2. Pursuant to s 28 of the Act, the nominal term of the custodial supervision order is 25 years, commencing 19 August 2019.

3. Pursuant to s 27(2) of the Act, this matter is to return to this Court for review within 12 months – that is, by no later than 28 May 2022.

4. Pursuant to s 32(1) of the Act, reports on the progress of Jonathon Edward Dick are to be provided to the Court no later than two weeks prior to review.