Director of Public Prosecutions v Katu
[2018] VSC 63
•19 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0283
| THE DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| CODY KATU | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2018 |
DATE OF JUDGMENT: | 19 February 2018 |
CASE MAY BE CITED AS: | DPP v Katu |
MEDIUM NEUTRAL CITATION: | [2018] VSC 63 |
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CRIMINAL LAW – Attempted Murder – Consent mental impairment hearing before judge alone – Verdict recorded of not guilty because of mental impairment – Accused declared liable to supervision – Matter adjourned so that further report and certificate of available services might be obtained – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms C Hollingworth | Camerons Lawyers |
HIS HONOUR:
The accused man Cody Katu has been indicted with the attempted murder of Russell McLaine, at Mooroopna on 1 October 2016. Before me on 13 February 2018, he pleaded not guilty to the charge by reason of mental impairment.
The charge arose from events that occurred in McLennan Street in Mooroopna, during which he attacked Russell McLaine with a knife, stabbing at him multiple times in the head and upper body.
Mr Katu has a long-standing diagnosis of paranoid schizophrenia, and in the period leading up to the events that occurred on 1 October 2016, it appears that he was not taking his prescribed medication properly and his mental health was deteriorating. It was the question of his mental health, and the relationship between his mental state and the commission of the violent events in McLennan Street, Mooroopna, that dominated the nature of the hearing before me.
The offending
In the hearing, counsel for the prosecution read and tendered a copy of the Summary of Prosecution Opening, thereby setting out the circumstances of the offending alleged to have been carried out by Mr Katu against his victim. The facts set out in the Crown’s Opening were not disputed on behalf of the accused, so they can be taken as accepted.
The relevant facts so far as necessary to understand these reasons and the decision that I have come to are outlined in the following paragraphs.
Cody Katu was 30 years of age at the time of his offending. He lived alone in a rental unit in Mooroopna. He had a history of paranoid schizophrenia and, at the time of the events, was medicated through fortnightly injections and daily oral medication.
The victim of Mr Katu’s offending, Russell McLaine, was 76 years old and he too resided alone in Mooroopna. He required crutches to walk any distance and rode a tricycle around the Mooroopna area as a form of exercise and to move about.
The accused and his victim were not known to each other.
At approximately 5.42pm on 1 October 2016, Cody Katu drove his motor vehicle from his home to Mill Street in Mooroopna, parked his vehicle, and walked to McLennan Street, stopping outside the ‘Cellarbrations’ bottle shop.
A witness, Kent Church, in company with his eight year old daughter, observed Mr Katu to be unsteady on his feet, as he settled against a sign. Mr Katu had covertly removed a knife from his right pants pocket, holding it behind his back for a short time before placing it inside the sleeve of his hoodie. Mr Church was unaware that this was occurring. When Mr Church and his daughter got out of their vehicle, Mr Katu took four steps in their direction but then stopped, turned around, and returned to his previous position by the sign. About one minute later, Mr Katu walked a short distance towards the Mooroopna Pizzeria and stopped next to an external seating area. There, he appears to have waited.
Mr McLaine had decided to go for a ride after watching the AFL grand final on television. His journey took him to the vicinity of Mr Katu. As Mr McLaine was riding his tricycle on the footpath near to the Cellarbrations bottle shop he noticed Mr Katu walking on the footpath. Mr McLaine cycled past Mr Katu, who was standing one to two metres away. In doing so, he briefly greeted Mr Katu with a pleasantry, and continued past him without either man impeding the progress of the other. Mr Katu then began following Mr McLaine, initially walking, but then running after him until catching up to him. Mr McLaine heard the footsteps behind him and turned to see Mr Katu approaching.
When Mr Katu caught up to Mr McLaine he removed the knife from the left sleeve of his hoodie, grabbed Mr McLaine’s left shoulder with his left hand and turned towards his victim, holding the knife. No words were exchanged at the time. Mr Katu then struck out towards his victim five times with the knife he was carrying. During one of those strikes, the point of the knife impacted with Mr McLaine’s bicycle helmet, piercing it, and entering several centimetres into the helmet, narrowly missing his skull. These strikes caused Mr McLaine to fall backwards off his tricycle and onto the pavement.
Mr Katu then walked around the tricycle and stood over his victim. He struck out at Mr McLaine’s upper body eight times in a stabbing motion while his victim attempted to defend himself and was calling out for help. Bystanders called out to the accused man in an attempt to stop him. He then left Mr McLaine lying on the ground and ran to his vehicle, entered his vehicle, threw the knife that he had used into the front yard of a nearby property, and then left the scene in his car. The whole interaction between the two men lasted around 10 to 20 seconds. The knife was later recovered.
Mr Katu returned to his residential unit, where he showered, shaved his head, and washed his jumper and his pants in his washing machine.
The victim’s injuries
Mr McLaine was conveyed by ambulance to the Goulburn Valley Hospital, where he was found to have sustained a deep laceration to his upper lip, a deep laceration to his left cheek, a small laceration to the left side of his nose, a small laceration to his right forearm, and a large abrasion to his right elbow. CT scans showed that he had sustained extensive but minimally displaced left maxillary sinus fractures and left greater wing sphenoid fractures adjacent to the ptergomaxillary fissure. The fractures involved the infraorbital foramen. A haematoma was identified within the left maxillary sinus, the tract intra-cranially, within the inferior left fronto-tempal region and with subarachnoid blood and gas extending into the sylvian fissure of the brain. As a result of these injuries, Mr McLaine suffered traumatic brain injury.
He was transferred in the early hours of 2 October 2016 to the Alfred Hospital in Melbourne and remained there until his discharge on 3 October 2016.
Victim impact
There was no Victim Impact Statement filed in this matter so I was not able to make a full assessment of the impact of the offending on McLaine, apart from what I might reasonably infer from the nature of the injuries; a description of the treatment that was provided to him; and the description of how the events occurred in McLennan Street. Doubtless the injuries, and all the circumstances that occurred, resulted in him suffering pain, discomfort, and considerable trauma.
The police investigation
The accused man was arrested by police on 3 October 2016 at his home in McLennan Street, Mooroopna. At the time the search warrant was executed, police found the clothing worn by him on 1 October in the washing machine on the premises. Police also located five blister packs of tablets, each containing one week’s worth of medication, separated into individual doses for ‘morning’ and ‘bed time’. From an examination of the blister packs it appeared that Mr Katu had been taking an irregular amount of doses in the five weeks before the events that occurred in McLennan Street.
Mr Katu was conveyed to Shepparton Police Station and initially was declared unfit for interview due to him having ingested prescription drugs prior to his arrest.
By 4 October 2016, he was deemed fit for interview. The interview was conducted in the presence of an independent third person. During the interview, when speaking of the attack, Mr Katu stated that he had a knife, he was looking for someone, and he chose ‘the guy on the bike’; that he had been walking around the street ‘looking for someone to stab’; that he felt ‘this guy that came through his left hand side telling me to kill me, kill me’, so he started running to him just saying, ‘stab, stab, stab’ and that is when he heard voices. He said that he did not want to kill the victim, but he was being told to; that he felt bad for the victim and he should not have done it; that he had not been thinking properly, that he just knew he had to listen to the voices that were telling him to kill someone or he would pass away. He said that the voices told him to ‘hurry up, quick do it’; it was his spiritual world that tells him what to do so that he can get his stuff back; when he had woken up on that day, a massive voice had told him to ‘hurry up and fuckin’ kill someone’ so he had to do something about it as he did not want to die; and, when he saw the victim on the bike, he decided he would do it to him.
In his interview, he also said that when he saw the witness Mr Church, with his daughter, he followed them as he got ‘fired up’, but he did not know why it did not work out, other than it had disturbed the spirits, and he himself did not want to do it to a man with a daughter.
Consent mental impairment hearing
Agreement between parties
By agreement between the prosecution and the defence, the matter proceeded as a consent mental impairment matter pursuant to s 21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
Role of the judge
The Act provides that if a person is charged with an indictable offence (such as attempted murder, as is the case here) and before the empanelment of a jury, the prosecution and defence agree the proposed evidence establishes a defence of mental impairment, the trial judge may hear that evidence and, if satisfied that the evidence does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.
It was common ground between the prosecution and defence that I should receive the evidence from two psychiatrists who were asked to examine Mr Katu by the defence and prosecution respectively, and also to hear evidence given in this Court from one of those two. Essentially, there was no disagreement between the experts with respect to their conclusions about the mental health of Mr Katu.
It was also common ground between the parties that if I was to accept the evidence before me, then I should direct that a verdict of not guilty because of mental impairment be recorded.
Mental impairment
The Act provides that in order to establish the defence of mental impairment, Mr Katu must prove, on the balance of probabilities, that at the time he attempted to murder Russell McLaine, he:
(a)did not know the nature and quality of his conduct; or,
(b)did not know his conduct was wrong, that is, he could not reason with a moderate degree of sense and composure about whether his conduct in attempting to murder Mr McLaine, as perceived by reasonable people, was wrong.
The evidence before me relevantly focussed on the second part of the test laid out in the legislation.
It is necessary to place the mental health of the accused man in some broader context in order to understand the events that occurred on 1 October 2016. The evidence demonstrated that there was an established history of mental illness on the part of the accused man.
Having been advised by the parties that the agreement as to mental impairment would be made out, the evidence placed before me comprised two reports, one from Dr Killian Ashe, and one from Dr Danny Sullivan. The evidence in report form was supplemented by viva voce evidence before me given by Dr Ashe.
The evidence of Dr Killian Ashe
The report of Dr Killian Ashe set out some aspects of Mr Katu’s mental health history. Dr Ashe is a Psychiatric Registrar, previously employed by the Victorian Institute of Forensic Mental Health at the time of his assessment of Mr Katu and currently employed by Melbourne Health.
Dr Ashe interviewed Mr Katu on 29 June 2017. He produced a report that was tendered into evidence before me.
Dr Ashe reported Mr Katu as stating that he first began experiencing symptoms of mental illness in 2013, and whilst struggling to recall the events of that time, he acknowledged he was admitted to a psychiatric hospital. He heard voices and had a feeling like something outside him was controlling him. According to Dr Ashe these expressions are consistent with passivity experiences, where a person experiences their thoughts, actions and/or emotions as being controlled by an external agency or force. The available records indicated that Mr Katu had been admitted to Wanyarrah Psychiatric Unit via the Northern Hospital, and that he was treated with the antipsychotic drug, Chlorpromazine.
Mr Katu was followed up by the community mental health team, mainly at the Goulburn Valley Melbourne Health Service. He stated that he had been under their care, on a Community Treatment Order, at the time of the offending against Mr McLaine. He had been prescribed medication including Zuclopenthixol, 400 milligram depot and Chlorpromazine tablets. Mr Katu said that he was compliant with his depot medication at the time of his offending, but reported he had stopped taking Chlorpromazine from his blister pack for five days leading up to the alleged offence.
Mr Katu stated that, since the onset of his auditory hallucinations in 2013, he has experienced them almost constantly, but much less intensively when complying with treatment. He could not clarify why he had stopped taking Chlorpromazine, stating that he did not tell anyone, including his family and treating clinicians. He indicated that there was a significant increase in auditory hallucinations over the course of the five days prior to the offending, which became a command and of a distressing nature. He reported he was afraid that ‘they would kill me’ (the voices), and that he was going to die in his sleep.
At the time of his examination of Mr Katu, Dr Ashe had a copy of the psychiatric report prepared by Danny Sullivan, consultant forensic psychiatrist, dated 15 May 2017. The report of Dr Sullivan was also tendered into evidence before me.
Dr Ashe concluded that Mr Katu’s account was consistent with a psychotic state, with grandiose and persecutory content in the setting of formal thought disorder, and with a loosening of associations.
Mr Katu had stated that he had woken up ‘and this big, massive voice said, ”Hurry up and fuckin’ kill someone” like that to me and I went, “What the fuck?” and I woke up and I was just like, “Oh”, and I had to do something about it cause I didn’t want to die’. There was further reference by Mr Katu to auditory hallucinations that he was experiencing at the time of the offending, as well as difficult to follow references to the spirits and spiritual worlds.
Dr Ashe also reviewed collateral information from the Goulburn Valley Area Mental Health Service, indicating that Mr Katu had been referred to the service by a GP in 2009 following family concerns of behavioural change and isolation.
Dr Ashe concluded that Mr Katu had demonstrated a pattern of rapid psychotic relapse following the cessation of oral medications, manifesting within a few days as command auditory hallucinations to kill himself or others. At one point he had been a voluntary patient at the Goulburn Valley Mental Health Service, with a regime of blister packed oral medications of Chlorpromazine, a sedating antipsychotic, as well as other medications. On 3 October 2016, Mr Katu told a worker from the Community Mental Health Service that he had not been taking his oral medications for some time, thinking that he could manage himself.
When incarcerated following the offending Mr Katu was deemed psychotic. He was stating, ‘They were telling me to kill, kill them, stab them, so I did’.[1] He referenced the spirit world and that ‘They’d go lighter on me if I did it’. In a later assessment, Mr Katu stated that it was ‘just the voices, they were telling me, I was tired right, I wasn’t taking my night time meds, I wanted to see what sort of person I would be if I didn’t take my meds’. He was receiving other command instructions at around this time.
[1]Report of Dr Ashe (9 October 2017) p 6.
At a review on 27 October 2016 Mr Katu was found to be displaying ongoing incongruence of affect, disorder of thought with tangentiality, auditory hallucinations, secondary persecutory delusional elaboration and somatic passivity phenomena.
Ultimately, Mr Katu was transferred to the Port Phillip Prison where he remained complaint with treatment and monitoring. It is to be noted he continued to display residual psychotic symptoms and has received appropriate medication.
Mental state examination of 29 June 2017
At his examination of Mr Katu on 29 June 2017 Dr Ashe stated that Mr Katu continued to express the belief that he would have died had he not committed the acts alleged, which Mr Katu maintained were a result of command auditory hallucinations. He had been receiving residual low grade auditory experiences since being incarcerated, but denied any discernible voices or commands.
Mr Katu was able to superficially relay a diagnosis of schizophrenia and a need for treatment, but demonstrated limited understanding of what that meant, saying that, ‘I’m sorry and I just wanna go home’.
The opinion and recommendations of Dr Ashe
After his examination, and taking into account the historical material that was available to him, Dr Ashe concluded that Mr Katu has an established diagnosis of schizophrenia. On the basis of available information, and coupled with the interview, he utilised the criteria set out in the DSM5 (Diagnostic and Statistical Manual of Mental Disorders 5).
Dr Ashe was of the opinion that Mr Katu has an illness which, during periods of acute psychotic relapse, is manifest in formal thought disorder, disorganisation, auditory hallucinations, and persecutorial delusions. His history is indicative of a propensity to rapidly relapse when not sufficiently medicated with antipsychotics, as at the time of the offending. Dr Ashe formed the view that his mental state at the time of the offending was consistent with an acute psychotic relapse.
Mr Katu had ceased his oral antipsychotic medication in the days prior to the offending, which appears to have been due to his lack of insight as to its importance, some degree of ambivalence regarding his treatment, and possibly a level of disorganisation. His failure to maintain his antipsychotic medication led him to experience distressing command auditory hallucinations instructing him to kill another person, with associated disorganisation of thought and behaviour, including the delusional belief that he would die should he not carry out the acts. This was, in the opinion of Dr Ashe, consistent with an acute psychotic relapse of schizophrenia.
Further, Dr Ashe concluded that Mr Katu would have been aware of the nature and quality of his actions in that he intended to stab the victim, but due to his acutely psychotic state he was not able to reason with any moderate degree of sense and composure as to the moral wrongfulness of his actions. He felt compelled to carry out the directions of the auditory hallucinations in order to offset his own imminent demise.
Significantly to the resolution of this matter, Dr Ashe was of the view that Mr Katu had a mental impairment defence available to him.
In viva voce evidence before me, Dr Ashe adopted and confirmed his report of 9 October 2017 as being true and correct. He further confirmed his diagnosis of schizophrenia and that at the time of his attack on Mr McLaine, Mr Katu was ‘experiencing an acute psychotic relapse of schizophrenia’, and that this was as a result of his failure to take his medication, that being the major contributor. He confirmed his opinion of a defence of mental impairment based on his diagnosis of schizophrenia — that at the time Mr Katu could not reason with a moderate degree of his actions because of his psychotic state.
Dr Ashe referred to the report of Dr Danny Sullivan and confirmed that he had regard to it when preparing his own report, and added that he agreed with the findings that Dr Sullivan had made.
The report and conclusions of Dr Danny Sullivan
In his report of 15 May 2017, Dr Danny Sullivan, Consultant Forensic Psychiatrist, set out that he had examined Mr Katu on 28 April 2017. In his examination of Mr Katu, Dr Sullivan established a psychiatric history similar to that found by Dr Ashe. Dr Sullivan had to hand medical records obtained from the Nixon Street Medical Centre; the Goulburn Valley Health Area Mental Health Service; discharge summaries from Goulburn Valley Mental Health; and a discharge summary from the Northern Hospital from early 2013.
Dr Sullivan concluded from his examinations that Mr Katu has an:[2]
… established psychotic illness, with positive symptoms (persecutory delusions and auditory hallucinations) and disorganised symptoms. The diagnosis is of paranoid schizophrenia, as set out in the International Classification of Diseases (ICD-10). His symptoms are brittle and he appears to have residual symptoms despite adequate treatment. It is noted that Mr Katu’s relapse signature involves aggression, formal thought disorder, and command auditory hallucinations; these have in the past recrudesced within days of his unilateral cessation of antipsychotic medication.
I have considered the availability of a mental impairment defence to Mr Katu, as set out in s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At the time of the alleged offence, Mr Katu engaged in a serious and unprovoked assault on a stranger. His actions occurred after he had ceased oral antipsychotic medication due to limited insight, and he was experiencing auditory hallucinations telling him to kill someone, with delusional beliefs underlying his interpretation of these. I consider that he was in a state of relapse of paranoid schizophrenia, and that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. Rather, he laboured under the belief that unless he followed the directions of his auditory hallucinations, he would be killed.
[2]Report of Dr Danny Sullivan ( 15 May 2017), p 7 [49], [51].
On the basis of his findings, Dr Sullivan concluded that Mr Katu had a defence of mental impairment.
Accordingly, two experts in the relevant discipline have provided me with evidence which essentially expresses the same opinion. As between the parties, there is no challenge to their conclusions. Both expert witnesses agree that Mr Katu has a mental impairment defence available to him.
On the basis of how the proceedings have been conducted before me, and with their evidence being un-contradicted, I have not been provided with any reason to reject the witnesses. Accordingly, I accept those opinions and am prepared to act upon them.
The basis of my conclusion is that at the time of engaging in the conduct constituting the alleged offences Mr Katu 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. I therefore accept the evidence of these two witnesses, and their conclusions about the defence being satisfied.
Findings
On the basis of the evidence placed before me, I am satisfied beyond reasonable doubt that Cody Katu attempted to kill Russell McLaine, and there was no lawful excuse for doing so.
Furthermore, on the basis of the evidence called, I am satisfied on the balance of probabilities that the defence of mental impairment has been made out.
Accordingly, pursuant to s 21(4) of the Act, I find that the accused man is not guilty of the charge of attempted murder by reason of his mental impairment at the relevant time and, accordingly, I will direct that a verdict of not guilty because of mental impairment be recorded.
Orders
I declare, pursuant to s 23(a) of the Act, that Mr Katu is liable to supervision under Part 5 of the Act.
Having made that declaration, it is necessary to make orders pursuant to s 24(1) of the Act. I declare that, pending the making of a supervision order, Mr Katu will be remanded in custody in a prison.
Under s 24(1)(d) of the Act, I order that a report be prepared by a registered medical practitioner or registered psychologist at Forensicare to address the mental condition of Mr Katu as provided for under s 41 of the Act, to be filed with the Court. I further order a certificate under s 47 of the Act be provided to the Court, and for the matter to be adjourned to a date following receipt of the s 41 report and s 47 certificate.
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