Director of Public Prosecutions v LC
[2024] VSC 206
•31 January 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0342
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LC |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January 2024 |
DATE OF RULING: | 31 January 2024 |
DATE OF REASONS: | 1 May 2024 |
CASE MAY BE CITED AS: | DPP v LC |
MEDIUM NEUTRAL CITATION: | [2024] VSC 206 |
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CRIMINAL LAW – Defence of mental impairment by judge alone – Attempted murder of housemate – Different psychiatric diagnoses of paranoid schizophrenia and schizotypal personality disorder/delusional disorder of persecutory type – Agreed between the parties that accused had mental impairment at time of conduct and could not reason with a moderate sense of composure that his conduct was wrong - Accused remanded in custody – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 23, 24, 41, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | D Porceddu | Office of Public Prosecutions |
| For the Accused | G Connelly | James Dowsley & Associates |
HIS HONOUR:
Introduction
LC is charged with the attempted murder of his housemate, Mathew Vaidyan. Both the prosecution and the defence agree, based on the expert opinions of two psychiatrists and a psychologist, that the evidence establishes the defence of mental impairment and that the court should be so satisfied and direct a verdict of not guilty because of mental impairment be entered.
The defence of mental impairment
Section 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [‘CMIA’] provides for the defence of mental impairment. By reason of section 20(2), if the defence of mental impairment is established, I must find LC not guilty of attempted murder ‘because of mental impairment’. Section 20 provides:
20 Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a)he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
If the court finds LC not guilty because of mental impairment, the court must either declare he is liable to supervision or make an order that he be released unconditionally pursuant to section 23 of the CMIA. Before ordering unconditional release, the court is required to take into account the matters set out in section 40(2) of the CMIA.
If the court declares LC liable to supervision, a report under section 41 of the CMIA and a certificate of available services under section 47 are, as a matter of usual practice, ordered before a supervision order is made. Family and victim reports can also be prepared for the court’s consideration, pursuant to sections 42 to 44 of the CMIA, prior to the making of a supervision order.
In this case, it was agreed between the parties that LC had a mental impairment at the time of committing the acts against Mr Vaidyan, and that as a result of that impairment, at the time of the events he could not reason with a moderate sense of composure that his conduct was wrong. Therefore, it was agreed, and there is psychiatric opinion to support the notion that section 20(1)(b) of the CMIA is engaged.
The court’s ability to hear the matter flows from section 21(4) of the CMIA. Section 21(4) provides:
(4)If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and—
(a)if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or
(b)if the trial judge is not so satisfied, must direct that the person be tried by a jury.
Summary of background facts and allegations
Prior to the offending, LC had lived in a share house at an address in Clayton for some time. Mr Vaidyan also lived at this address with his wife, and had done so for many years. There was no history of issues between Mr Vaidyan and LC. Indeed, it appears they were friends.
On 11 May 2022, Mr Vaidyan came home to the share house around 9.15pm, and after eating dinner took his plate and cutlery to wash up in the kitchen. He acknowledged LC whilst washing up. LC then approached Mr Vaidyan from behind, holding a knife. He cut Mr Vaidyan to the back of the neck, causing him to turn around.
LC then proceeded to stab Mr Vaidyan 10 to 12 times to the left side of his body, whilst Mr Vaidyan tried to hold up his hands and break loose. He was stabbed another five times or so. Mr Vaidyan told LC they were friends, and asked ‘what are you doing?’
Mr Vaidyan dragged himself outside whilst still being held by LC. He was pinned to the neighbouring fence by LC and stabbed another five to six times. He was also stabbed to the head. Mr Vaidyan’s wife came outside after hearing the commotion and observed LC attacking Mr Vaidyan. She made efforts to stop him. Mr Vaidyan eventually broke free and was pursued by LC who continued to stab him.
Police officers attended the scene at 9.48pm and observed LC standing beside a tree in the dark, on the footpath outside the Clayton address. He was covered in blood. He complied with his arrest and told officers where the knife was. After being treated at St Vincent’s Hospital for a cut to his hand, LC was transported to Oakleigh Police Station, where has was not interviewed as he was deemed unfit.
Mr Vaidyan suffered extensive injuries. These included numerous lacerations and stab wounds to the face and neck area, chest, back, and arms, some facial and clavicle fractures, and a left-sided moderate pneumothorax and collapse of the left lower lobe of the lung.
Psychiatric history
Dr Suhas Simhan, a consultant psychiatrist at Forensicare, conducted an interview with LC on 25 July 2023. Dr Simhan undertook a review of LC’s psychiatric history, which is set out in his report dated 1 September 2023. The following is a brief summary as taken from that report.
LC denied any previous history of contact with area mental health services or any history of admissions to a psychiatric inpatient unit in the community during his assessment with Dr Simhan. He stated that his general practitioner had prescribed the anti-psychotic Seroquel for poor sleep for a time, but he did not like the medication.
LC’s Monash University Health File indicates that LC had his first contact with the service on 13 December 2012, during his undergraduate studies, after failing a number of subjects. He reported poor sleep. The clinician noted he was not psychotic at this time but had an odd presentation. LC later presented at the service in October 2015 with anxiety, and left after seeing a doctor. He then presented multiples times between 26 November 2015 and 4 November 2016 after a lecturer whom he misinterpreted as being interested in him ceased all contact with him. He was referred to a psychiatrist who diagnosed him with an adjustment disorder with mild anxiety. Dr Simhan notes:
During the course of his contacts with the service, his presentations had been characterized by odd and bizarre thinking patterns, vague comments about herbicides affecting people’s brain impacting thinking and giving hallucinations, difficulties from social interactions and feeling persecuted by his university faculty members.
LC was referred to a psychiatrist by his general practitioner for treatment of his anxiety and adjustment difficulties. He was assessed by a psychologist in March 2016, and a plan was formulated to use Cognitive Behavioural Therapy [‘CBT’] to treat his problems, however LC stopped seeing this psychologist after the initial visit.
LC again consulted a general practitioner in November 2016 when he provided a history of a ‘nervous breakdown’ he said he had in 2015. He was again referred to a psychologist for assessment and management of anxiety and obsessive thoughts, and prescribed a low dose of Seroquel to help with sleep, which he ceased around six weeks later, due to undesirable side effects. He later presented again to his general practitioner with worsening sleep and increased stress and was referred to a psychiatrist, though it is not clear whether LC attended any appointment with the psychiatrist he was referred to.
LC was seen by a psychologist on 16 November 2016 and attended seven sessions, until late February 2017, with his treatment focussing on psychoeducation and CBT. During these sessions, LC presented with obsessive thoughts about his lecturer, persecutory themes about his lecturer and university, odd and eccentric ideas about other topics, family issues, unhappiness and frustration about his shared house, issues at work, and sleep problems.
The evidence
LC was assessed by:
(a) Dr Lester Walton on 20 July 2022, 13 December 2022 and 8 June 2023; and
(b) Dr Suhas Simhan on 25 July 2023;
(c) Mr Patrick Newton on 27 May 2022.
Evidence of Dr Walton
Dr Lester Walton is a consultant psychiatrist who examined LC by way of videoconference on 20 July 2022, preparing a report dated 25 July 2022. Dr Walton also provided a supplementary report dated 13 June 2023, after assessing LC on a further two dates and being provided with various psychiatric records pertaining to LC.
Dr Walton did not provide a lengthy psychiatric history in relation to LC, beyond noting that there does not appear to be a history of psychiatric illness in his family, he has never been able to sustain any long term relationships, he struggled at school and later university and had resorted to living in a rooming house where this offending occurred. Dr Walton notes that LC does not have problems with substance abuse.
In his first report, Dr Walton notes that LC stated to him ‘I made a serious error in my thinking and I’ve committed a terrible crime which I will be regretting for a long time’. He castigated himself for not having sought counselling. LC indicated to Dr Walton that he was threatened with being poisoned and cut to pieces with a cleaver, and had regarded himself as being at an immediate threat of harm from his neighbour when he attacked him.
Dr Walton reports that LC ‘readily accepted that he is mentally ill’ but was adamant that he was not suffering from a psychotic illness and did not require antipsychotic medication.
In Dr Walton’s opinion, as stated in his first report, the proper diagnosis for LC is one of paranoid schizophrenia, requiring ongoing treatment. Dr Walton states that LC was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his act at the material time. Dr Walton however describes LC’s fitness to be tried as ‘lineball rather than equivocal’ and that a simple adjournment accompanied by further improvement could be sufficient rather than proceeding to a formal fitness hearing.
Dr Walton states in his second report that there has been a significant contraction in his delusional beliefs and that there were currently no deluded ideas adversely impacting upon LC’s ability to provide proper instructions. In his view, as stated in the second report, LC impressed as ‘rather more insightful both in relation to the nature of his mental illness and the need for treatment which augers well prognostically…’, and that ‘whilst there has been some noncompliance with antipsychotic medication, by and large [LC] has complied with treatment and that is reflected in his more settled current mental state’.
Dr Walton remained of the view that the proper diagnosis for LC is one of paranoid schizophrenia, and that he was not able to reason with a moderate degree of sense and composure as to the wrongfulness of his acts at the material time.
Evidence of Mr Newton
Mr Newton is a registered psychologist of 25 years’ experience. He assessed LC via a 90-minute videoconference on 27 May 2022 and prepared a report dated 12 June 2022.
Mr Newton reports that LC’s insight into his symptoms is lacking, in that he continued (at the time of the report) to hold delusional beliefs about the Mr Vaidyan, and the conspiracy against him with an ‘unshakable tenacity’. Mr Newton reports that ‘there is little understanding of the impact of these events, their criminal context of the likely consequences he might face as a result of them’.
Mr Newton’s report includes the following:
(a) LC described a history of aggressive acting out in response to perceived hostility from and ‘targeting’ by others dating back to childhood;
(b) LC has no history of sustained intimate connection, has not been able to maintain stable employment, is estranged from his family and has no significant friends or associates;
(c) LC’s mental state is characterised by prominent persecutory delusions, the most recent of which focussed upon the belief that his housemates had conspired to poison him;
(d) The delusions LC was suffering at the time of the attack made it impossible for him to understand the wrongfulness of his conduct or think about the likely consequences in a logical and coherent manner;
(e) LC continues to hold the delusional thoughts about this housemate, and in Mr Newton’s opinion, if he were at liberty there would be a ‘significant risk that he would take steps to act upon’ those delusional thoughts;
(f) LC has no insight into the delusional nature of his thoughts, the gravity of his conduct or the consequences he might face.
Mr Newton’s provisional diagnosis is one of delusional disorder of the paranoid type pursuant to the DSM-5. Mr Newton notes that a differential diagnosis of schizophrenia is possible, but that (at the time of writing) LC does not manifest the fully-fledged psychosis required for that diagnosis.
In Mr Newton’s view, LC presents with the core features of a major mental illness, and requires ongoing psychiatric care given his condition will ‘almost certainly require’ the prescription of anti-psychotic medication.
Evidence of Dr Simhan
Dr Simhan is a consultant psychiatrist with Forensicare. Dr Simhan assessed LC via Webex on 25 July 2023 and prepared a report dated 1 September 2023.
Regarding mental impairment, Dr Simhan states that LC has a mental impairment, and was suffering from a delusional disorder of the persecutory type, experiencing significant decline in his mental state over the months leading up to the offence. This opinion was based on the reported history, collateral material and available information. Dr Simhan also reports that in his view LC has ‘demonstrated a pervasive pattern of social and interpersonal deficits with reduced capacity for close relationships along with cognitive distortions and behavioural eccentricities all of which fulfil the DSM-5 criteria for schizotypal personality disorder’.
Dr Simhan noted that there was a differential diagnosis of schizophrenia given the reported history and available information indicate the presence of delusions, disordered thinking patterns, odd and bizarre behaviours and reduced social functioning, and also major depressive disorder with psychotic features characterised by the presence of delusions along with other features of depression, but ultimately reports that a diagnosis of delusional disorder with schizotypal personality disorder is preferred.
In Dr Simhan’s view, LC knew the nature and quality of his conduct at the time of the offences, but that he was experiencing severe persecutory delusions which lead to increased aggression at the time of the offence, such that his conception of whether his actions were wrongful were affected. Dr Simhan states in his report:
… [LC] was so driven by his dysfunctional thought processes and primitive urges that he could not regard morality as a relevant factor in the undertaking of his conduct to assault and stab Mr Vaidyan. His psychosis grossly impaired his ability to compose himself as to determine whether his actions were wrongful.
104. In my opinion, [LC] was unable to reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
Dr Simhan has diagnosed the accused with a mental impairment described as a delusional disorder of the persecutory type. Dr Simhan also states that LC fulfils the criteria for this disorder under the Diagnostic and Statistical Manual of Mental Disorders [‘DSM-5’]. It was Dr Simhan’s view that the mental impairment defence criteria are made out by LC.
In evidence, Dr Simhan explained that a delusional disorder is a psychiatric condition where the person presents with delusions and fixed ideas which don’t change despite the provision of contradictory evidence of the belief not being true, and which has persisted for at least one month. Other than this delusion, there should not be any marked functional impairment in the patient, or other mood disturbance or substance induced states affecting the patient.
Dr Simhan also described schizotypal personality disorder, and stated that what is commonly seen are patients suffering from conditions such as ideas of reference, where they feel others are talking about them all the time, or odd belief systems or ways of thinking, limited social interpersonal relationships, and a lot of social anxiety.
Dr Simhan gave evidence surrounding the extent of LC’s insight into his mental impairment. He stated that LC knew the nature and quality of his conduct, because at the time of the review he conducted LC stated that he anticipated that Mr Vaidyan would be in the kitchen at that time of the night, and he took the small knife with the intention of inflicting pain and suffering, in response to the pain and suffering he believed he was causing him. Dr Simhan stated however that LC did not know that the conduct was wrong, because in the months preceding the offence he had suffered from very distressing psychotic symptoms surrounding Mr Vaidyan, which grossly impaired his judgment.
Dr Simhan also gave evidence surrounding his views on Dr Walton’s diagnosis of paranoid schizophrenia. Dr Simhan stated he did not agree with this diagnosis, on the basis that LC did not present with the ‘cluster’ of symptoms required for such a diagnosis, in particular the combination of delusions and hallucinations, the latter being a perceptual event, disordered thinking, as well as negative symptoms like catatonia. In Dr Simhan’s view, not all of these symptoms were present for LC. Dr Simhan also pointed to LC’s lack of mental health history, as evidence in the material he reviewed in preparing his report.
Submissions for the accused
Counsel for the accused filed brief written submissions and made oral submissions at the hearing. Defence counsel submitted that the only fact to be determined on the balance of probabilities is whether LC was suffering a mental impairment at the time of engaging in the conduct constituting the charged offence, noting that this was not in dispute between the parties.
It was submitted that at the time of engaging in the conduct constituting the charged offences, LC was suffering from a mental impairment, described slightly differently by each of the three experts. Whilst that impairment did not have the effect that the accused did not know the nature and quality of his conduct it did have the effect that the accused did not know his conduct was wrong (which is agreed between the experts). In short, it was submitted that it was open to the court to find that any of the diagnoses that were given by the three experts applied, but that this would be of no import given the experts all agree on the effect of any such diagnosis amounting to a mental impairment.
Defence counsel submitted that it was agreed between the parties that the evidence establishes the defence of mental impairment and that a verdict of not guilty by reason of mental impairment should be directed, and the accused declared liable to supervision and remanded in custody, given the lack of practicable alternative pending the completion of a section 41 and section 47 report.
Submissions for the prosecution
The prosecution also filed brief written submissions which were supplemented by oral submissions at hearing.
The prosecution submits that all three experts are of the same mind in relation to LC having a mental impairment at the time of the alleged offending. It was submitted that notwithstanding the slight differences in opinion between Dr Walton and Dr Simhan, the experts agree that LC did not know that the conduct was wrong, which, it was submitted, meets the criteria in section 20(1)(b) of the CMIA.
Conclusion
Section 21(4) of the CMIA allows the question of whether a defence of mental impairment has been established to be determined by a judge, rather than a jury, where the prosecution and defence agree. Agreement is a precondition for the determination of the issue by a judge but it remains a matter for the court to decide on the evidence before it whether the defence has been made out. In this matter, the parties have agreed that LC was suffering from a mental impairment at the time of engaging in the conduct constituting the charged offence.
At the hearing only one expert was called, Dr Simhan, an experienced psychiatrist who confirmed that LC suffers from a mental illness, fulfilling both the criteria for a delusional disorder of a persecutory type and a schizotypal personality disorder, which is characterised by the presence of delusions, disordered thinking patterns, and odd and bizarre behaviours and reduced social functioning, amongst other things. In LC’s case, Dr Simhan gave evidence that this had manifested in beliefs that Mr Vaidyan was poisoning him and had recruited others to help him do this, and that his family and Mr Vaidyan were performing witchcraft.
There was some minor dispute between the experts surrounding the diagnosis, particularly, Dr Walton’s diagnosis of paranoid schizophrenia, which Dr Simhan disagreed with in his evidence before the court. I note that Dr Simhan had certain records available to him that Dr Walton did not, such as the records from Thomas Embling Hospital, Justice Health, and in relation to LC’s presentation to clinicians in the community. This may explain why the two experts have come to different conclusions. Dr Walton also assessed LC at a different time, closer to the events out of which the charge arises.
Mr Newton’s opinion also supports the diagnosis of a delusional disorder of the persecutory type.
Ultimately, this disagreement is of little import. I am satisfied that there is evidence of delusions, odd beliefs and bizarre ways of thinking, focused around witchcraft and the like which is of sufficient intensity to support the diagnosis reached by Dr Simhan. Given more information was available to Dr Simhan, I favour the diagnoses he has provided. Even if the opinion of Dr Walton is to be favoured, either diagnosis, and both experts, support the finding that at the time of engaging in the conduct, LC was suffering a mental impairment, and he did not know that the conduct was wrong, in that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong, pursuant to section 20(1) of the CMIA.
As a result, I find LC not guilty of the offence because of mental impairment, pursuant to section 20(1) of the CMIA.
I therefore declare LC liable to supervision pursuant to section 23(a) of the CMIA.
It was agreed between the parties that there is presently no practicable alternative to remanding LC into custody. Pursuant to section 24(1)(c), LC is remanded in custody in a prison.
I will make orders that a section 41 report and section 47 certificate of available services be prepared and filed with the court by 30 March 2024.
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