Director of Public Prosecutions v Doan
[2014] VSC 68
•13 February 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 2014 0006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAM NHAT DOAN |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2014 | |
DATE OF RULING: | 13 February 2014 | |
CASE MAY BE CITED AS: | DPP v Doan | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 68 | |
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CRIMINAL LAW – Murder – Plea of not guilty by reason of mental impairment – Consent hearing – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Defence established – Verdict of not guilty because of mental impairment recorded – Accused declared liable to supervision.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Grant | Solicitor for Public Prosecutions |
| For the Accused | Mr J D Williams | Victoria Legal Aid |
HIS HONOUR:
In this matter, the accused man, Nam Nhat Doan, has pleaded not guilty to an indictment which contains one charge of the murder of Craig Smith at Melbourne on 4 June 2013.
The accused man’s defence to that charge is that at the time of the offence, he was mentally impaired pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Before a jury was empanelled in the matter, the prosecution and the defence both agreed that the proposed evidence established the defence of mental impairment. Accordingly, it was common ground between the prosecution and the defence that, pursuant to s 21(4)(a) of the Act, I should hear the evidence, and, if I am so satisfied, direct a verdict of not guilty because of mental impairment be recorded.
I was also told that there is no issue of fitness to be tried and that that proposition was supported by three psychiatrists, Dr Calvin, Dr Carroll and Dr Owens who all conferred with the accused man before the hearing today. Mr Doan’s counsel, Mr Williams, also confirmed that he had been able to confer with Mr Doan before the hearing today and was able to obtain rational and proper instructions from him.
At the time of the offence, the accused man, Nam Nhat Doan, was 39 years of age. He had a long history of mental health problems. His first contact with Mental Health Services was in 1995. At that time he was diagnosed with bipolar affective disorder. In 1996 he was diagnosed with schizophrenia. As a consequence, he has had regular admissions as an involuntary patient at the Sunshine Adult Acute Psychiatric Unit. In 2000, the accused’s mental state deteriorated significantly. As a result, the frequency of his admissions to hospital increased to one to two in-patient admissions every year, with a duration of in-patient stay lasting between two weeks to one month, during which he displayed violent and aggressive behaviour.
The accused suffered from persistent auditory hallucinations. His condition was compounded by substance abuse, particularly the abuse of methylamphetamine and cannabis. In 2005, the accused was placed on a Mental Health Community Treatment Order which required him to receive fortnightly injections of antipsychotic medication. He regularly denied that he had an illness and he often refused to take his medication.
On those occasions, he indulged in psychotic, abusive and threatening behaviour. As a result the community treatment order was revoked on a number of occasions and he was placed into care as an involuntary in-patient.
In December 2012, the accused man travelled to Vietnam and he returned to Australia in March 2013. On his return to Australia, his community treatment order was again revoked and he was re-admitted to the Broadmeadows Mental Health Unit for treatment on 9 March. He remained there as an involuntary in-patient for two weeks until his discharge on 22 April. On his discharge he returned to his residential premises at Unit 2, 216 Biggs Street, St Albans which was next door to Unit 1 in which Craig Smith was then residing.
In the period leading to the offence in question, the accused man’s mental state became quite unstable and erratic. On one occasion in May 2013, he attempted to punch his case manager, Mr Mills, when he visited the accused. As a result it was recommended that the accused not be dealt with unless another clinician was present, because of the risk he posed.
In May 2013, the accused refused to attend the Harvester Clinic of the Midwest Mental Health Service, despite being directed to attend there. The clinicians who dealt with him at that time, were directed that he should only been seen when he was outside his unit. On 1 June and again on 2 June, the accused telephoned the Harvester Clinic, and in the course of the telephone conversations, he threatened to stab and burn his case manager should the case manager seek to administer the Depot injection to him for his condition.
On 3 June, the day before the offence, the accused man attended the Harvester Clinic. There he again repeated his threat to stab and burn his case manager and staff of the clinic, if they attempted to administer the Depot medication. I should interpolate that, at that stage, Mr Doan was meant to be having the medication administered to him every two weeks, and the last administration of the medication had been on 21 May.
During his attendance at the Harvester Clinic on 3 June, the accused repeatedly requested that he be discharged from his community treatment order, stating that he did not want any mental health team intervention.
On Tuesday 4 June 2013, Senior Constable Belinda Illingworth, a member of the Keilor Downs Police Station, attended Mr Smith’s address at approximately 12.50 pm to serve a subpoena on him. While waiting to speak to Mr Smith, Senior Constable Illingworth was approached by the accused. The accused said that he wanted to speak to her about Mr Smith alleging that Mr Smith had been shouting at him and that the accused wanted her to do something about him.
Senior Constable Illingworth noted in her statement that the accused at that time “...was very erratic, not at all stable or able to be spoken to at length, possibly suffering from some kind of mental impairment”. His behaviour was such that Senior Constable Illingworth was concerned for her own safety as she was then working alone.
Senior Constable Illingworth then spoke to Mr Smith, who said that he was not having any problems with his neighbour but that his neighbour was suffering from mental ill health.
Later in the afternoon, the accused returned to his home at 216 Biggs Street, St Albans. He approached Craig Smith in the driveway outside their units and confronted him. The accused then went into his unit and armed himself with a kitchen carving knife, before returning to the driveway area of the unit block.
As he went outside, he noted that Mr Smith was carrying a piece of wood which was about 80 centimetres long. A physical altercation then took place between the accused and Craig Smith. In the course of it, the accused stabbed Craig Smith once in the stomach. Mr Smith also received cuts to his left hand. Craig Smith managed to return to his unit where he telephoned 000 for assistance.
The accused man returned to his unit and placed the knife on his table. He then left his unit and walked approximately one kilometre to a public telephone box situated in Alfrieda Street, St Albans. At approximately 3.09 pm he contacted Triple-O to report that he had stabbed Craig Smith because Smith had abused and threatened him.
The accused was located by police and arrested at the phone booth. He was conveyed to the Sunshine Police Complex. A forensic medical practitioner assessed him and considered that he was not fit to be interviewed at the time.
The informant conducted a conversation with him for the purposes of ascertaining what had occurred. In the course of that conversation the accused gave an account which was consistent with the circumstances that I have outlined.
Craig Smith was taken to the Royal Melbourne Hospital by ambulance. Upon his arrival he was in cardiac arrest. He was taken straight to theatre for surgery. Following surgery, he was conveyed to the Critical Care Unit, where he passed away at 10.46 pm on 4 June.
The pathologist who conducted the post-mortem examination concluded that the cause of death was a stab wound to the abdomen, with consequential massive blood loss.
The facts, which I have just summarised, were confirmed in evidence today by the informant, Detective Senior Constable Jason Smith. Based on those facts, I am satisfied that the accused man caused the death of Craig Smith by stabbing him with the intention of killing him or causing him really serious injury, and that the accused had no lawful excuse for doing so.
In order to establish a defence of mental impairment under s 20(1) of the Act, the accused must establish, on the balance of probabilities, (a) that he did not know the nature and quality of his conduct; or (b) that he did not know that the conduct was wrong, that is, he could not reason with a moderate degree of sense and composure about whether his conduct, which caused the death of Craig Smith, was perceived by reasonable people as wrong.
The evidence, as to the defence of mental impairment, consisted of a report of Dr Nicholas Owens, consultant psychiatrist, dated 13 September 2013 and a report of Dr Sam Calvin, senior psychiatric register of the Victorian Institute of Forensic Mental Health, dated 11 December 2013. Dr Calvin also gave evidence before me today.
Dr Owens assessed the accused at Thomas Embling Hospital on 20 June 2013, 16 days after the offence. In his examination, Dr Owens noted that the accused’s mental health history, including the previous diagnoses of schizophrenia and cannabis dependence since 1995 and his multiple admissions to hospital in the intervening period. On examination, Dr Owens noted that the accused experienced auditory hallucinations of a bizarre nature, as well as persecutory delusions about the victim, Mr Smith, and other neighbours.
Dr Owens concluded that the accused suffers from schizophrenia at the severe end of the spectrum. His condition is characterised by chronic positive psychotic symptoms, including grandiose and bizarre delusions and auditory hallucinations. The abuse by the accused of methamphetamine and cannabis has aggravated his condition and made it less responsive to medication.
Dr Owens concluded that it was likely that the accused was suffering from chronic psychotic conditions at the time of the offence including auditory hallucinations as well as grandiose and bizarre delusions. He also harboured persecutory delusions about Mr Smith as well as at least one other resident in the premises.
Information obtained from the accused’s interview with Dr Carroll at the Acute Assessment Unit at the Melbourne Assessment Prison on 12 June strongly suggested that the accused was deluded at the time he made the decision to kill Mr Smith. In particular, the accused was suffering from a complex delusional symptom in following being able to work out the correct action based on a bizarre relationship between words in a dictionary, time and extra-terrestrial entities influencing him. On balance, Dr Owens considered it was likely there was a clear and direct connection between the accused’s psychotic symptoms and his actions which caused the death of Craig Smith on 4 June.
Dr Owens took into account the effect of ingestion by the accused man of methamphetamine on the day before the incident as well as cannabis. However, he considered that there was cogent evidence that the specific nature of the accused man’s psychotic symptomatology was centrally implicated in his behaviour at the time of the offence. Thus, on the balance of probabilities, Dr Owens considered that the accused was so mentally impaired by schizophrenia at the time of the offence, that he was unable to reason with a moderate degree of sense and composure as to whether his behaviour as perceived by reasonable people was wrong.
As I stated, Dr Calvin examined the accused at Thomas Embling Hospital where he was in a security patient on 21 November 2013. Associate Professor Carroll was present throughout the interview. Dr Calvin also took a detailed note of the accused’s psychiatric history, including the initial diagnosis of bipolar disorder, the diagnosis of schizophrenia 1996 and the deterioration of the accused’s mental state since 2001. Dr Calvin also noted the abuse by the accused of methamphetamine and cannabis. Dr Calvin also took into account the detailed records relating to the accused’s past mental history.
Taking those matters into account, Dr Calvin concluded that the accused had an established diagnosis of schizophrenia and poly-substance abuse. His illness had been characterised by continuous symptoms, poor response to treatment and ongoing substance misuse. The accused man also had poor insight concerning his symptoms and is resistant to receiving appropriate treatment. In the days preceding the offence, the accused had expressed a range of psychotic symptoms, such as persecutory delusions, particularly relating to the government, and his treating mental health team. He was also experiencing auditory hallucinations.
Dr Calvin noted that, on the day of the offence, the accused had consulted his dictionary and asked for permission before he committed the offence. Dr Calvin observed that the accused’s interpretations of the words which he found in the dictionary were delusional and they led him to belief that extra-terrestrial entities were advising him that his plans to kill were morally justified, although illegal.
In conclusion, in his report, Dr Calvin considered that there was no evidence to suggest that the accused did not know the nature and quality of his actions in attacking Craig Smith. The primary cause of his psychosis or schizophrenia, although his use of drugs on the day, and his refusal to adhere to his medication, may also have contributed to his florid psychotic state, and also diminished his capacity to control his aggressive symptoms.
Dr Calvin concluded that, on the balance of probabilities, the accused man, due to his acute psychotic state at the time, was unable to reason with a moderate degree of sense and composure as to whether his behaviour as perceived by reasonable people was morally wrong. Thus, he considered that a defence of mental impairment would be available to the accused.
As I stated, Dr Calvin gave evidence before me as to the contents of his report. In particular, he confirmed that in his examination of the accused man, the accused man evinced classic symptoms of schizophrenia, including auditory hallucinations, delusions of reference and paranoid delusions.
Dr Calvin described the effect of the lack by the accused of the compliance with his medication in the period leading up to the offence. He stated that it appeared that the medication, when administered to the accused, did have a positive effect in diminishing his symptoms and that the failure by the accused to comply with his treatment regime in the period leading up to his treatment meant that his symptoms at that time had become florid. Thus, at the time leading up to the offence, his symptoms were active.
Dr Calvin noted that the accused entertained delusions relating to his neighbour by misinterpreting harmless remarks that had been made to him by his neighbour. He confirmed that they were again classic symptoms of schizophrenia which was then active and operating at the time.
In conclusion, in his evidence, Dr Calvin again reiterated the view which he had stated in his report, namely that on the balance of probabilities the accused man, due to his acute psychotic state at the time of the offence was unable to reason with a moderate degree of sense and composure as to whether his behaviour as perceived by reasonable people was morally wrong.
Based on those materials, I am well satisfied, on the balance of probabilities, that the defence of mental impairment is made out in this most unfortunate case. While I am not satisfied that the accused at the time of the offence did not know the nature and quality of his conduct, nevertheless I am well satisfied, on the balance of probabilities, that he did not know that his conduct was wrong. That is, that he could not reason, with a moderate degree of sense and composure, about whether his conduct as perceived by reasonable people was wrong.
Accordingly, I am satisfied the defence under s 21(b) of the Act is made out. Thus, pursuant to s 21(4)(b), I shall direct that a verdict of not guilty because of mental impairment by recorded in the records of the court. It follows that I shall also make a declaration under s 23(a) that the accused is liable to supervision under Part 5 of the Act.
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