Director of Public Prosecutions v Ss
[2021] VSC 779
•26 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0038
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SS |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2021 |
DATE OF JUDGMENT: | 26 November 2021 |
CASE MAY BE CITED AS: | DPP v SS |
MEDIUM NEUTRAL CITATION: | [2021] VSC 779 |
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CRIMINAL LAW – Murder – Consent mental impairment – Accused found not guilty by reason of mental impairment – Custodial supervision order made – Nominal term of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act ss 20, 21.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
| For SS | Mr P Chadwick QC | James Dowsley & Associates |
HIS HONOUR:
Introduction
SS is charged with the murder of his partner, Anya Ribalkin (‘Ms Ribalkin’). Both the prosecution and the defence agree, based on the expert opinion of three psychiatrists, 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.
Ms Ribalkin suffered a terrible and brutal death at the hands of SS. She received fatal wounds to her neck and chest of the most horrible kind that were inflicted by SS using one or two knives. Defensive wounds also reveal the brutality of the attack and the horror that must have been experienced by Ms Ribalkin. The psychiatric history of SS is complex and been the subject of various opinions over an extended time. In addition, there is a history of violence towards intimate partners that has not been shown to be the result of psychosis or other mental illness. The three very experienced psychiatrists who have recently considered the matter have reached a clear consensus that SS suffers from a psychotic illness and was psychotic at the time of the brutal killing of Ms Ribalkin. There is no contrary psychiatric evidence.
Having read carefully the reports of each of the psychiatrists and heard oral evidence from them, I am satisfied to the relevant standard that, at the time of the commission of the acts that resulted in Ms Ribalkin’s death, SS was suffering from a mental illness that constituted a mental impairment that had the effect that SS could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong. A verdict of not guilty by reason of mental impairment will be entered. It will be necessary to make orders consequent on that verdict. My reasons for my conclusions follow.
The defence of mental impairment
Section 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMI Act’) provides for the defence of mental impairment. By reason of s 20(2), if the defence of mental impairment is established, I must find SS not guilty of 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.
In this case, it is the agreed psychiatric opinion that at least the second limb of s 20(1) of the CMI Act — that at the time of the conduct constituting the offence SS did not know that it was wrong — was engaged. The Court’s ability to hear the matter flows from s 21(4) of the CMI Act. Section s 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
On 29 July 2019, emergency services arrived at an address in Noble Park (‘the premises’) to perform a welfare check on Ms Ribalkin and discovered her body on the kitchen floor. She had obvious and extensive stab wounds to her neck and torso.
It is necessary to set out in some detail the circumstances of the case concerning the death of Ms Ribalkin on the morning on 29 July 2019. The following summary of background facts and allegations against SS are taken from the summary of the prosecution opening filed in this matter,[1] which sets out in considerable detail the alleged circumstances surrounding the death of Ms Ribalkin.
[1]The summary is not quoted verbatim and has been shortened in parts.
Background – before January 2018
SS was born on 11 December 1982 and at the time of Ms Ribalkin’s murder was 36 years old.
Prior to commencing a relationship with Ms Ribalkin, SS had been married to GO. The couple had married on 23 August 2008 and were together for eight to nine years. They had four children together. GO reported that SS would regularly behave in an abusive and violent manner towards her, commencing shortly after they were married, and continuing thereafter. This included threatening to kill her, attacking her, strangling her, and pushing her into walls. Every time SS assaulted her, he would say, ‘I’ll just claim insanity’. GO was also aware of SS abusing illicit drugs during their relationship.
Commencing on 29 July 2014, a number of intervention orders were taken out against SS, naming GO and the children as protected persons.
Following an incident on 14 January 2017, in which SS told GO that he would kill her whole family and make up lies that she was the crazy one, GO ceased the relationship with SS and has had no further direct contact with him.
SS met Ms Ribalkin in August 2017. They commenced a relationship shortly thereafter. Ms Ribalkin was born on 8 October 1985 and was aged 33 at the time of her death. Her mother is Angelina Mullins. Her stepfather is Daniel Mullins. Mr and Mrs Mullins have one child together, Andrew. Until meeting SS, Ms Ribalkin had lived with her mother, stepfather, and Andrew.
At the start of the relationship, SS lived at the Mullins’ family home. Mr and Mrs Mullins tried to have SS contribute to expenses. Eventually, after Mr Mullins told SS that he had to move out, both SS and Ms Ribalkin left the house. They lived out of a car for some weeks, before securing the premises rental property in around December 2017.
January 2018
In late January 2018, police were advised of incidents of violence within the relationship between SS and Ms Ribalkin. Ms Ribalkin reported that SS had become ‘psychotic and abusive’ towards her. She stated his change in behaviour had coincided with the couple smoking synthetic marijuana on and off. Between 15 and 21 January 2018, Ms Ribalkin reported the following episodes of violence:
(a) On 15 January 2018, the couple had been smoking synthetic cannabis and decided to go for a drive around the city and St Kilda. During the drive, SS began to drive erratically and said he was the ‘creator’ and ‘god’, and that he could end people’s lives. He said her mother was a witch and he wanted Ms Ribalkin to chant, ‘I want to kill my mother’. When she refused, he punched her in the head multiple times whilst driving;
(b) On 15 January 2018, SS kept Ms Ribalkin in a motor vehicle and transported her to various locations. He assaulted her on multiple occasions, telling her she and her mother were witches. He ultimately drove the vehicle to Pearcedale, where he stopped the car and continued to physically assault her; and
(c) Over the following days, the two continued to smoke synthetic cannabis and SS continued to assault Ms Ribalkin. He stated that she and her mother were witches and continued to speak of being god and the creator.
On 19 January 2018, commencing just after 6:45 pm, various members of the public called triple zero to report SS driving at speed and erratically. Ms Ribalkin was a passenger in the vehicle, which had a smashed front windscreen. SS was observed to be punching and holding down Ms Ribalkin.
Less than an hour later SS was observed in Dandenong, driving erratically including mounting the footpath and colliding with a sign. A short time later the vehicle he was driving came to a stop in Doveton Avenue, and the couple abandoned it (with the keys inside and engine still running). They were seen on foot walking along Doveton Avenue.
Ms Ribalkin reported that:
(a) During the afternoon of 20 January 2018, she and SS walked from a motel in Mulgrave to Eumemmering, SS fearful that someone was after him. They walked past the abandoned vehicle in Doveton Avenue and SS punched the windscreen, damaging it. He said it was Mrs Mullins’ fault for being a witch and the damage to the windscreen was her doing; and
(b) By the early morning of 21 January 2018, the couple were at SS’s parents’ house. While Ms Ribalkin was asleep SS bit her left hand. When she tried to run away, he stopped her from doing so and said he could end her life right now and put his fist right through her head.
Police were called to the house just after 6:00 am when a neighbour reported he could hear an argument between a male and at least two females. The male was threatening to cut off the hands of another person and the neighbour heard the sound of glass breaking. When they arrived, the police found SS yelling nonsensically, claiming to be ‘god’ and saying that ‘spirits’ were coming to get him. He appeared to be frightened when he saw police, tried to run away, and resisted the attempts of the four officers to restrain him. Police did not hear any allegations of violence towards anyone present; SS talked to himself about black magic and commented that everyone in the world, including the attending police, were ‘witches’ or ‘evil spirits’. It was the view of attending police that he was suffering from a drug-induced psychotic episode and a decision was made to transport him to hospital for assessment. After he had been placed in the police divisional van, he kicked the van and continued to scream out.
Another officer recalled that SS spoke of Mrs Mullins using witchcraft and black magic and that she was chanting on his dead family’s graves. He also said he believed he was god and that he decided who lived and died. He spoke of voices in his head.
Before police were cleared from the hospital, SS was observed to be sweating profusely and agitated. He was heard repeating claims that he was ‘god’, that he chooses between life and death, that he would dance on graves, and that he believed people in the world were targeting him with black magic. He did not indicate plans to hurt anyone, but mentioned he had power of everyone and would stop anyone who tried to ‘kill’ or ‘come for’ him.
SS was verbally aggressive and unable to be assessed. He was medicated, and upon partial assessment, he appeared quite paranoid and delusional. He was made the subject of an inpatient temporary treatment order which was revoked on 1 February 2018.
Upon review, Ms Ribalkin was observed to have bruises and blisters on her feet, and bruises all over her arms. She had told police and hospital staff that her mother had caused the bruises using witchcraft. She required sedation and was placed on an inpatient temporary treatment order because she presented as very thought disordered and spoke of SS having special magical and supernatural powers.
Ms Ribalkin’s family and friend visited her while she was at the hospital. She reported that SS had been violent towards her, that SS believed her mother was a witch and had to die, and that he had asked her to shove a screwdriver into her mother’s neck. On 23 January 2018, while still an inpatient, she twice called triple zero and requested police attend to take a statement and photographs, saying SS had bashed her ‘very badly’. Ms Ribalkin’s friend observed bruises to her face, arms and legs, and took photographs.
After being discharged from hospital, Ms Ribalkin returned to live with her mother and stepfather. On 26 January 2018, she attended the Dandenong Police Station with her stepfather. A report was made in relation to her injuries and she made a signed police statement. Police later obtained an interim intervention order against SS.
A couple of weeks after making her report to police, Ms Ribalkin moved to Sydney with SS.
May 2018
In May 2018, SS was sentenced to imprisonment in NSW for driving offences. A final intervention order was served on him whilst he was in custody. Ms Ribalkin returned to Melbourne while SS was in gaol, and stayed between her mother and stepfather’s house and the premises. The couple communicated regularly by way of letters, some of which were located by police after SS’s arrest.
Early 2019
In February 2019, SS contacted a friend of Ms Ribalkin by phone. He left a message saying she, that is the friend, was not to go back to the premises and telling her to stay away from Ms Ribalkin.
After SS was released from custody, he resumed living at the premises with Ms Ribalkin.
July 2019
In the days immediately prior to Ms Ribalkin’s death, emergency services had a number of contacts with her and SS.
On 26 July 2019, SS attended at the Dandenong Police Station and told the officer on reception that he had had a verbal argument with Ms Ribalkin approximately an hour earlier after he told her he had cheated on her (when he was in Sydney). He said he had put his arm on her to prevent her from assaulting him and he was concerned Ms Ribalkin would report the incident to police. Police attempted to contact Ms Ribalkin to verify the report, however her phone rang out.
On 26 July 2019, Ms Ribalkin went to work. She told her manager that she was angry at her boyfriend for being unfaithful while he was in Sydney and that she intended to give him the ‘cold shoulder’. She said she needed a drink because she was upset and that she intended to get alcohol from the bottle shop after work. She purchased two bottles of wine from a bottle shop near her workplace.
At approximately 10:30 pm to 11:00 pm, SS called Mrs Mullins and repeatedly asked her, ‘Do you hear this?’ He said Ms Ribalkin was in the shower. Mrs Mullins heard her daughter singing in the background. She sounded to Mrs Mullins to be drunk, and so she and her husband decided to go to the premises. Mr Mullins also received a call from SS to say that Ms Ribalkin was going crazy, but that he did not want to call an ambulance. He told Mr Mullins he ‘sort of’ cheated on Ms Ribalkin.
When Mr and Mrs Mullins arrived, Ms Ribalkin was upset with her mother and asked why she had come to the premises. She told her mother that SS had cheated on her and beaten her in the past two years, and that if she told anyone he would punish her more.
When Mr and Mrs Mullins were at the premises, Ms Ribalkin called the police, who arrived at 11:15 pm. She was observed to be alcohol affected. She told police that she was upset because SS had cheated on her. She and SS had an argument about this, and SS said she was lazy, did not do enough at home, and that she was into witchcraft and was controlling his mind. She indicated she had had enough of SS and wanted him out of the premises. She made a statement to police detailing these matters.
Police determined that there had been a breach of the intervention order by SS. He declined to be interviewed. He indicated his intention was to stay at his mother’s house, however then collected some of his belongings and asked Mrs Mullins whether he could stay at her house. She refused. SS left the house with the belongings.
Mrs Mullins then discussed the relationship with her daughter. Ms Ribalkin said that things had been ‘okay’ when SS had first returned from Sydney, but he had then become violent and did not want her wearing makeup.
Later police analysis of Ms Ribalkin’s mobile phone showed that she and SS had exchanged a number of calls and messages from 26 July 2019 onwards. In many of the messages, she made reference to being upset at SS having been intimate with other women.
After police attended on 26 July 2019, SS made his way to his parents’ house.
The following day, 27 July 2019, an ambulance was dispatched to SS’s parents’ house following calls to triple zero by SS and his parents, to the effect that there were concerns about his physical state. In particular, SS reported concerns about his blood pressure, and his parents reported concerns about his breathing and level of consciousness.
At approximately 6:30 am, ambulance officers arrived at the house and observed SS to be drowsy, conscious, and breathing. He appeared to ambulance officers to be affected by a substance, however he denied consumption of any substances. He said, ‘people won’t believe what happened’. In discussion with an attending paramedic, he said he had an argument with his partner overnight involving police attendance. Vital signs were taken. It appeared to the ambulance officers that SS was having a panic attack and he was transported to Dandenong Hospital.
Upon arrival at the hospital just after 7:00 am, he was observed to be anxious, teary, and emotional. He had poor eye contact with nurses, and was crying and hugging his mother. His vital signs were normal while waiting in the Emergency Department and he did not return to the hospital after going outside for a cigarette.
Police were called to do a welfare check on SS because he had not remained at the hospital for assessment, however, police responding to that request found SS was not at the premises. They instead spoke to Ms Ribalkin, who said she had spoken to SS on the phone a short time earlier and had made an arrangement for him to drop off her keys later that day.
Ms Ribalkin went to work that day. A family violence response worker called her just after 9:30 am, however she declined support. She said she needed time to heal as SS had cheated on her, that she and SS were having a ‘break’, and that they would be getting back together.
Just after midnight on 28 July 2019, police were dispatched to the premises following a call from SS. He said that he had woken Ms Ribalkin to go to the beach and she had locked herself in the bathroom with a knife and was self-harming. Ms Ribalkin could be heard in the background of the call.
Police attended and spoke to Ms Ribalkin. She said that SS had woken her and had been rambling about going to the beach and said he did not know why people had to pay to go to the beach. In the heat of the moment she had picked up a knife and said, ‘what do you want me to do about it, kill myself?’ She repeatedly said she had no intention of doing so, however, said she was very stressed about the relationship issues.
SS, who was at this stage outside the premises, started yelling that Ms Ribalkin had mental health issues and had tried to kill herself, and he behaved in an aggressive manner towards police. Police considered him to be erratic and rambling and decided to call an ambulance to conduct a psychiatric assessment.
Ambulance officers attended and observed that SS would not give direct answers to questions, but would instead answer their questions with questions. His answers were described by ambulance officers as unusual, though he did not seem to be acting like he was seeing or hearing hallucinations, or to say anything particularly revealing about what he was thinking. He was also observed by police to be talking to himself while in the bathroom.
A decision was made for both SS and Ms Ribalkin to be transported to hospital for mental health assessments.
On arrival at approximately 1:15 am, SS presented as irritable and angry for having been brought to hospital. He was superficially cooperative, but spoke in a loud voice with a sarcastic tone. He denied auditory or visual hallucinations and was deemed not delusional. He expressed some mild paranoid themes in the context of having a negative view about ‘authorities’, including in the context of a decision made by a judge in relation to access to his children. He denied any thoughts to harm himself or others, and reminded assessing staff that he had called the police because he was concerned about his partner’s safety. He did not appear to the assessors to be substance affected. The impression of his presentation was antisocial behaviour, rather than acute psychiatric symptoms. He was assessed by a medical practitioner at approximately 6:20 am and there were found to be no medical concerns and no organic cause for his presentation. He did not meet the criteria for treatment under the Mental Health Act 2014 and he was discharged from the Emergency Department.
Ms Ribalkin was also assessed. She explained the reason for police attendance and said that, although she had held a knife to her throat and had said she was suicidal, that was not in fact the case. She expressed concerns that SS was safe. She was released without the need for treatment.
Ms Ribalkin called her mother at around 4:00 am and asked if she could stay at their house. She arrived (on foot) at around 5:00 am and left during the morning for a walk. She had not returned by around 4:00 pm. Mr and Mrs Mullins drove past the premises a short time later and saw SS and Ms Ribalkin sitting together on the front steps. Ms Ribalkin yelled abuse at her mother and demanded that Mr Mullins apologise to SS. Mr and Mrs Mullins left.
29 July 2019
Just after 4:30 am on 29 July 2019, SS called triple zero to report that Ms Ribalkin had been assaulted some 26 years before. Ms Ribalkin could be heard in the background of the call, including providing information as to how long ago the assault was said to have occurred. SS was informed that the operator could not take a statement or arrange for police to attend for that purpose and the operator provided him with a telephone number of a nearby police station.
At 8:31 am, SS, using Ms Ribalkin’s mobile phone, called the Mullins’ home phone number twice, the first time hanging up before the phone was answered. Mrs Mullins answered the second call. She heard Ms Ribalkin screaming, and she said, ‘[SS], stop, stop’, three or four times. She also heard SS screaming, ‘I want her to hear what is going on here.’ Mrs Mullins tried to hang up the phone to call her husband and the police but the line remained connected.
She woke her son, Andrew. He picked up one of the phone extensions and Mrs Mullins picked up another. Mrs Mullins and Andrew Mullins heard SS screaming, ‘What the fuck is going on here’, ‘What the fuck, what is this shit’ repeatedly.
The police were called and went to the premises finding it locked. Police forced entry and found Ms Ribalkin’s body in the kitchen.
At around the same time, emergency services were called to an address in Dandenong, which was approximately four kilometres from the premises. SS had driven to the area in a vehicle owned by Ms Ribalkin. When the vehicle ran out of petrol, he continued on foot. He expressed concerns to bystanders about his mother and he had what appeared to be blood on his clothing.
SS then got into a taxi which was there on an unrelated pick-up request. SS appeared to the taxi driver to be in a hurry and his demeanour was aggressive. He told the driver to go to Carrum Downs, saying ‘I want to go, I just want to go from here’, and directed him towards Frankston-Dandenong Road. As the taxi slowed to turn a corner, SS jumped out, running towards Princes Highway.
SS made his way on foot along Lonsdale Street, Dandenong. A local factory worker was outside speaking to a customer when SS approached them yelling. He collapsed to the ground and asked for the police to be called because his mother was going to be killed or had been killed. Triple zero was called. SS ignored attempts to engage with him. He got up and continued walking east along Princes Highway. When told the police were coming, he said everything was ‘cool’ and not to worry as he was alright.
Uniformed police attended in response to the triple zero call, having been tasked to conduct a welfare check on SS. They located him a few doors down from the factory. He appeared to be talking to himself. Police observed blood on his clothing and saw he had a jumper wrapped tightly around his right hand. He told them the blood was from a self-inflicted cut to his left hand. He declined medical attention, saying that he was just going to visit his mother and asked police to drive him there. Police refused but said they would get an ambulance if he wanted. He refused to provide his name and also refused police requests to show them his right hand, and walked quickly away with police following.
He appeared agitated and kept trying to walk away, saying he was going to his mother’s house. The jumper wrapped around his hand was removed and police could see his hand was covered in dried blood. SS said the blood was from the self-inflicted cut.
SS eventually provided his name and address. SS mentioned the name ‘Anya’, a reference to Ms Ribalkin. He became very agitated and tried to leave, shouting about police touching him, and jumping up and down. He was restrained on the ground and secured in handcuffs. He remained agitated and struggling to get up, while screaming.
A police officer asked whether Ms Ribalkin was okay and SS replied that she was dead. When asked, ‘Did you do that?’ SS said he had slit her throat with a filleting knife and a couple of other knives, and that she was in the middle of the kitchen floor dead. He said he had taken her car but it ran out of fuel. He was also heard saying words to the effect of, ‘Don’t you ever step in my backyard’, ‘I’ve got bipolar, schizophrenic’, and ‘I fucking killed, sacrificed her’.
In the course of the interview undertaken at the police station, he admitted he had stabbed Ms Ribalkin and slit her throat with a filleting knife.
SS has been remanded in custody. As will appear from the evidence of the psychiatrists, since being in custody SS has had periods in the acute assessment unit and has been seen by a number of psychiatrists and mental health practitioners. Prison health records reveal continuing mental health problems. SS has declined treatment for these conditions and does not accept that he is suffering from mental illness.
Medical Evidence
SS was assessed:
(a) on behalf of the defence, by Dr Nina Zimmerman, who is a forensic psychiatrist; and
(b) on behalf of the prosecution, by Dr Nicholas Owens, who is a consultant psychiatrist.
Dr Nina Zimmerman, provided four reports dated 27 February 2020, 28 February 2020, 11 March 2021 and 14 March 2021. Two of these reports deal with the question of SS’s fitness to plead, with Dr Zimmerman concluding that SS is fit to plead. Dr Nicholas Owens, provided two reports dated 15 December 2020 and 31 March 2021.
Dr Danny Sullivan, who is a consultant forensic psychiatrist, provided one report dated 29 July 2021 which was completed on the basis of various material, including the reports of Dr Zimmerman and Dr Owens. He did not meet with SS for the purpose of an assessment.
Dr Nina Zimmerman
Dr Zimmerman assessed SS on 18 February 2020 and 10 March 2021.
In her reports, Dr Zimmerman opined that SS suffers from a major mental illness, namely a paranoid psychotic disorder, either delusional disorder of a paranoid type or paranoid schizophrenia.
Dr Zimmerman was satisfied that SS understood the nature of the charge against him, however concluded that he was not able to think clearly at the time of the index offence because of his beliefs about black magic. She also concluded that SS is fit to stand trial and that he is able to instruct his lawyer in a meaningful way.
In her report dated 28 February 2020, Dr Zimmerman recorded a history dating back to at least 2009 of psychiatric disturbance requiring treatment. Notes from his general practitioner from before 2009 record a long history of depression, amotivation, job dissatisfaction, anxiety, relationship problems, and personality issues. In 2009, SS was referred to a psychiatrist complaining of anger, irritability, low mood, ruminations about death, and voices arguing and debating. The psychiatrist, Dr Nallaratnam, noted that he was ‘not overly psychotic’, but an anti-psychotic (low dose olanzapine) was prescribed. In 2011, there was a record of ‘possible auditory hallucinations’ and another anti-psychotic (quetiapine) was prescribed. Diagnoses of depression and anxiety were recorded on a number of occasions between 2011 and 2015, and anti-depressant medication was prescribed.
Dr Zimmerman referred to notes relating to the January 2018 presentation at Monash Health involving claims by SS of the influence of black magic and being controlled by other people. Dr Zimmerman then set out details surrounding the build-up and aftermath of the death of Ms Ribalkin which included observations of a disorganised, chaotic, and paranoid set of behaviours.
Based on that history and also on the basis of her consultation with SS, Dr Zimmerman concluded that:
[SS] has a psychotic disorder with ongoing paranoid delusional beliefs. His psychosis developed on a background of a vulnerable mental disposition with a long history of depression and anxiety and isolated episodes of auditory hallucinations attracting a diagnosis of a non-organic psychosis. The precipitants for his first floridly psychotic presentation in 2018 included the stress of his marriage breakdown coupled with abuse of synthetic cannabis. Information from his girlfriend suggests his psychosis towards the end of 2017. The first documentation of complex delusions around Ms Ribalkin and her family using black magic to control and harm him emerged at this time. These themes are referred to as having been present intermittently during the relationship, culminating in the arguments of the week when Ms Ribalkin was killed. I believe that [SS] was floridly psychotic on the day of the alleged offending. He maintains the veracity of these delusions today. The specific diagnosis of [SS]’s psychotic illness remains unclear.
As noted, the prosecution had SS assessed by psychiatrist Dr Owens. In his first report, dated 15 December 2020 to which I will make greater reference below, Dr Owens said it was possible that SS has a delusional disorder but at the date of that report he was not satisfied that this was so. This report prompted a further report from Dr Zimmerman.
In her report dated 14 March 2021, which was prepared following another in person consultation with SS and which addressed the first report of Dr Owens, Dr Zimmerman maintained the opinions set out in her earlier report of 28 February 2020.
Dr Zimmerman noted that during the two hour interview, SS presented as tense, humourless, irritable, at times hostile, and his thoughts were rapid and poorly organised. Dr Zimmerman referred to Victoria Justice Health records which address the period of time since SS was in prison on remand. Those notes included the following:
(a) Consultant psychiatrist Dr Pang reviewed SS on 6 and 8 August 2019, following his reception to Melbourne Assessment Prison on 2 August. Dr Pang felt his presentation of a fluctuating mental state was best attributed to ‘malingering’.
(b) Consultant psychiatrist Dr McInerny reviewed SS on 12 September, 3 and 10 October, and 15 November 2019. She considered a diagnosis of psychosis in view of odd beliefs about numbers and religion but also considered a diagnosis of an adjustment disorder.
(c) An entry on 16 April 2020 indicates that SS was reviewed by Dr McInerny on 15 November 2019, who concluded that ‘although it cannot be 100% ruled out’, SS did not appear to be suffering from a psychotic illness.
(d) Consultant Psychiatrist Dr Pandurangi,[2] was concerned that SS was paranoid and potentially psychotic.
[2]Who had attempted to see SS for the purposes of preparing a report for the OPP but could not complete a comprehensive report because of SS’s failure to ‘engage well’.
(e) Consultant psychiatrist Dr Kinane, who assessed SS on 22 June 2020 following his transfer to Melbourne Assessment Prison after he described ‘negative energy’ as similar to Satan, evil spirits, and witchcraft being worked against him, felt SS was suffering from a delusional disorder.
(f) On 24 June 2020, Dr Pang recorded his opinion that SS was suffering from either a delusional disorder or schizophrenia. SS’s behaviour was described as threatening, frustrated, agitated, irritable, intimidating, rigid, driven, sarcastic, intense, and provocative.
(g) Dr Kinane thought SS had a paranoid personality and possibly also a delusional disorder.
(h) On 22 July 2020, after noting the multiple opinions on file, Dr McInerny stated ‘malingering has been now reasonably confidently discounted’. Dr McInerny noted that it had become clearer that SS has a psychotic illness – possibly a delusional disorder but that attempts to engage him in treatment had been wholly unsuccessful.
Dr Zimmerman agreed with Dr Owens’ observation that SS’s paranoia makes psychiatric assessment difficult and diagnostically, the situation is complex. She accepted that there is evidence of some paranoid personality traits but considered that his odd beliefs or magical thinking were of delusional intensity. Dr Zimmerman considered that SS’s hostility, irritability, and unpleasant manner were not inconsistent with and may be a manifestation of his delusional disorder rather than evidence of a personality disorder.
Dr Zimmerman framed the diagnostic issue in the following way:
The essential point of difficulty in coming to a diagnosis in [SS]’s case is whether his beliefs about black magic are malingered, paranoid or delusional in nature. There is then the secondary question of whether any delusional beliefs are due to a paranoid delusional disorder, schizophrenia / schizophreniform disorder or a drug-induced psychosis.
After reviewing the material, including paying close attention to the first report of Dr Owens and taking into account her observation that SS’s mental state had deteriorated, Dr Zimmerman maintained her diagnosis that SS has a psychotic disorder with ongoing paranoid delusional beliefs and that there is some evidence of decline in his mental state. She concluded that a diagnosis of a primary delusional disorder is a possible diagnosis. She went on to say that on her recent assessment, SS described visual and tactile hallucinations, was more disorganised in his thinking, and more irascible in his manner, increasing the possibility that SS in fact suffers from paranoid schizophrenia rather than a delusional disorder. She considered, and rejected, that the psychosis at the time of the offence was drug-induced on the basis that there was insufficient evidence to support intoxication and that SS’s mental state has continued to show signs of psychosis and deterioration in the abstinent environment of prison.
In evidence before me, Dr Zimmerman accepted that there were other features of SS’s presentation related to his personality, including his substance abuse and history of committing family violence. However, Dr Zimmerman said that these factors were not inconsistent with mental illness and that manifestations of psychotic illness have been long standing, persistent, and deteriorating. She observed that SS had been talking about black magic and witchcraft in the days leading up to the offence and that his comments to police following the offence would suggest that there was something more than anger about infidelity that led to the offending. Dr Zimmerman stated, ‘just because someone has a history of domestic violence does not mean that they cannot act in a psychotic state because of their psychosis.’
Dr Zimmerman reported a decline in SS’s mental state over the period of time between her assessments of him. Following her assessment of SS in March 2021, Dr Zimmerman opined that SS had become more guarded and irritable, and that further disorganisation of thinking was present.
Dr Nicholas Owens
Dr Owens assessed SS on 11 November and 23 November 2020 via video-link. In evidence before me, Dr Owens detailed the difficulties he encountered in assessing SS, including that SS was somewhat avoidant in answering questions, that he tendered to answer questions with his own questions, and that on the second occasion there was something obscuring the lens which Dr Owens had to ask SS to remove.
In his initial report dated 15 December 2020, Dr Owens noted that it was possible that SS’s ‘beliefs about witchcraft and black magic affecting him represent beliefs that he holds with delusional intensity’, however, he was not satisfied that this was the case. Dr Owens noted there were some inconsistencies in SS’s presentation. Dr Owens considered that SS’s presentation after the offence was the strongest indication that he may have experienced a psychotic episode at the material time. Given SS’s use of synthetic cannabis in the weeks leading up to the offence, Dr Owens noted it was possible that SS may have had an acute drug-induced psychotic episode at the time of the offence. Dr Owens concluded that he was not satisfied that there was enough evidence to support the contention that SS’s mental state, at the time of the offence, deprived SS of the ability to know that killing Ms Ribalkin was wrong.
In his second report dated 31 March 2021, Dr Owens indicated that following consideration of the additional reports of Dr Zimmerman and the fact that Dr Zimmerman had been able to reassess SS’s mental state, he was prepared to accept that the balance of the evidence does point to SS suffering from a psychotic illness, which he thought may be either a delusional disorder or schizophrenia. He accepted that SS was suffering from a mental impairment at the time of the offending, namely psychosis with delusions of being affected by black magic.
In his oral evidence, Dr Owens said that what had struck him was the degree of diagnostic uncertainty associated with SS across the many psychiatrists who had seen him, especially in prison. He acknowledged that in that context, in his initial report he had placed a lot of weight on the ‘truculent’ and disagreeable manner of SS in arriving at his conclusion that a diagnosis of personality disorder rather than a psychotic illness was more likely. As he said in evidence, at the time of his first report he thought a delusional disorder was possible but ‘he wasn’t convinced’.
By the time of his second report, Dr Owens said he had the advantage of reading Dr Zimmerman’s third and fourth reports and frankly acknowledged that at the time of his earlier report he did not fully appreciate how SS’s truculent manner was part of his psychotic illness. He concluded that SS was suffering from a psychotic illness, either a delusional disorder or schizophrenia, and that as a result of his illness, at the time of the offending SS’s delusions were such that his capacity to determine right from wrong was impaired and he was responding to a delusional fear of being harmed or killed.
Dr Danny Sullivan
Dr Sullivan reviewed various documents pertaining to SS, including his JCare medical records and the police brief. Dr Sullivan reported that ‘there is likely evidence of personality disorder with narcissistic, paranoid, antisocial and possibly psychopathic traits.’ He also noted that SS’s behaviour may also reflect a psychotic illness, including schizophrenia, delusional disorder, or schizoaffective disorder.
Dr Sullivan stated that based on all of the material he considered, at the time of the offence, SS was psychotic. He held persecutory beliefs about Ms Ribalkin and her family. He concluded that SS’s conduct was influenced by delusional beliefs about Ms Ribalkin and her family, which prevented him from reasoning with a moderate degree of sense and composure about the wrongfulness of his conduct. Notwithstanding his history of aggressive and intimidating behaviour towards Ms Ribalkin, his delusional perception that she was engaged in harming him through witchcraft was at a significant level relevant to the offence. Dr Sullivan retained some suspicion that the psychosis was affected by substance use but noted there was insufficient evidence to support this.
In his evidence before me, Dr Sullivan considered ‘that there was a reasonable conclusion to be drawn’ that SS was psychotic at the time of the offence. Dr Sullivan said this could be inferred from the evidence, of both SS’s behaviour and of his preoccupation with the perception that he was being persecuted, or that he was at risk of being harmed.
Conclusion
Section 21(4) of the CMI Act 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.
At the hearing there was consensus amongst the three, very experienced forensic psychiatrists, that SS suffers from a mental illness, either a delusional disorder or schizophrenia.
I accept that evidence. The evidence shows that there are some factors that may tend against that diagnosis and favour a finding that SS suffers from a paranoid personality disorder rather than a mental illness. These include paranoia, hostility, and avoidant behaviour in a context of a history of serious violence towards intimate partners.
However, I am satisfied that there is a reliable, long standing history of delusions and odd beliefs focused around black magic, witchcraft and the like which is of sufficient intensity to support the diagnosis reached by each of the three doctors. I am also satisfied that SS’s prickly and truculent presentation is not inconsistent with the diagnosis and can sit comfortably with it.
I am also satisfied that, at the time of the offence, SS was suffering under the force of powerful and intense delusions that led him to believe his life was in danger and prevented him from reasoning between right and wrong.
In reaching that conclusion I am comforted by the very close attention each of the experts has given to this case. For example, Dr Owens in his initial report was not able to be satisfied as to a diagnosis. He was troubled by a history of violence to intimate partners and noted the uncertainty of the diagnosis over many years. However, having reviewed the matter, and reflected on all of the material including the analysis of Dr Zimmerman, he was able to come to a sufficiently clear diagnosis. The fact that Dr Owens was open to reviewing his opinion on the basis of further evidence is important. It has meant that the issues have been interrogated very carefully by the experts and a clear consensus reached. There is no basis in the evidence on which I could reject the opinions reached.
It is also important that with the passage of time, and the observation of a number of doctors in the prison setting, malingering or other potential factors such as a personality disorder have been excluded.
I am also satisfied that the psychotic symptoms that were operative at the time of the offence were not drug induced. There is clear evidence that the florid psychotic symptoms that were present at the time of the January 2018 incidents, that resulted in attendances at Monash Health, were associated with consumption of synthetic cannabis. On the other hand, there is no evidence on which I could make a finding that SS was intoxicated or had consumed drugs in the immediate lead up to the offence. Further, the continuation and deterioration of psychotic symptoms in prison where there is no suggestion of substance use, also supports the conclusion that the psychosis suffered by SS is not drug induced.
It is clear from his history, which includes significant domestic violence towards multiple partners culminating in the death of Ms Ribalkin, his underlying psychotic illness, and his resistance to treatment, that SS currently presents a significant danger. Ms Ribalkin was brutally killed by SS, but by reason of his mental illness he is not criminally responsible for her death.
I am satisfied that the defence of mental impairment to the charge of murder has been established. It follows that I shall enter a verdict of not guilty by reason of mental impairment.
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