R v Afele
[2014] NSWSC 366
•02 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v Iusi Afele [2014] NSWSC 366 Hearing dates: 31 March 2014 Decision date: 02 April 2014 Before: Bellew J Decision: (1) I find the accused Iusi Afele not guilty of the murder of Steven Chesworth, on the grounds of mental illness.
(2) I order that the accused be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law.
(3) I direct the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of the orders I have made.
Catchwords: CRIMINAL LAW - Murder - Where accused diagnosed as suffering from schizophrenia - Where defence of mental illness raised - Where defence made out on the balance of probabilities - Accused not guilty on the grounds of mental illness Legislation Cited: Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990Cases Cited: Mizzi v R (1960) 105 CLR 659
R v Ayoub [1984] 2 NSWLR 511
R v Coleman [2010] NSWSC 177
R v Falconer (1990) 171 CLR 30
R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44
R v Kemp [1957] 1 QB 399
R v Kesavarajah (1994) 74 A Crim R 100
R v McDonald [2012] NSWSC 875
R v McNaghton (1843) 8 ER 718
R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173
R v Porter (1933) 55 CLR 182
R v Presser [1958] VR 45
R v S [1979] 2 NSWLR 1
Stapleton v R (1952) 86 CLR 358
Taylor v R (1978) 45 FLR 343; 22 ALR 599
Tumanako v R (1992) 64 A Crim R 149Category: Principal judgment Parties: Regina - Crown
Iusi Afele - AccusedRepresentation: Counsel:
Ms M Cinque - Crown
Mr E Wilson SC - Accused
Solicitors:
Director of Public Prosecutions (NSW) - Crown
Legal Aid NSW - Accused
File Number(s): 2013/67850 Publication restriction: Nil
Judgment
Iusi Afele ("the accused") has pleaded not guilty to an indictment alleging that on 5 March 2013 at Bathurst in the state of New South Wales he murdered Steven Chesworth ("the deceased").
On 28 February 2014 counsel for the accused filed a notice of motion seeking a trial before a judge alone pursuant to provisions of s. 132 of the Criminal Procedure Act 1986. The Crown consented to that application and I made orders accordingly.
The accused's trial took place before me on 31 March 2014. The Crown tendered, by consent, two volumes of documentary material which were marked exhibits "A" and "B". That material included medical evidence which raised a defence of mental illness.
In addition to the documentary material tendered by the Crown, I also heard oral evidence from two Forensic Psychiatrists, Dr Stephen Allnutt and Dr Richard Furst.
I record my thanks to both counsel for the sensible and practical manner in which the trial has been conducted.
THE CROWN CASE
The Crown case may be shortly stated.
The deceased and the accused resided in an apartment block in Bathurst. All of the residents within the block were tenants of the Department of Housing. The accused and the deceased were friendly with one another, to the point that in the latter part of February 2013 the deceased had assisted the accused painting his premises.
Several of the residents of the apartment complex were in the habit of meeting in unit 8, occupied by Robert Foster, on most mornings of the week. Mr Foster's premises were located on the ground floor of the complex. He resided with another man by the name of Steven Porter.
On the morning of 5 March 2013 several people gathered in Mr Foster's premises. They included the deceased who was sitting in a lounge chair near the front door. The accused entered the premises shortly after 8:00 am. He did not engage with the neighbours when they greeted him as he walked in, a circumstance which those neighbours regarded as unusual. The accused took a few steps towards the chair where the deceased was sitting and stood behind it. Those present were not able to ascertain that the accused was holding a large knife secreted in the sleeve of his top at the time.
The accused then commenced to strike the deceased in the chest and abdomen with the knife. To those present, it initially appeared as though the accused was punching the deceased but they soon realised that he was in fact stabbing him. The deceased suffered a number of serious wounds as a result of the blows delivered by the accused. One of the neighbours present described the accused as having a "strange" look on his face as he walked from the unit, still holding the knife that he had used to stab the deceased.
Those present tried to render first aid to the deceased, whose condition rapidly deteriorated. He lost consciousness within a short period of time and died at the scene, ambulance personnel not being able to revive him following their arrival. A post mortem examination confirmed that the deceased died as a result of the wounds inflicted by the accused.
Police quickly ascertained that the accused was responsible for stabbing the deceased. They attended his premises and spoke with him, before placing him under arrest. The accused made some admissions at the scene. In particular, he told police that the knife that he had used to stab the deceased was in the kitchen sink. He also acknowledged that he had attempted to wash the blood from the knife.
The accused then accompanied police back to the police station where he was given the benefit of access to legal advice. He was interviewed on that occasion, and was then charged.
Several days later the accused made contact with police, following which a further interview was arranged. In the course of that interview the accused made extensive admissions to the killing of the deceased which are detailed further below.
THE EVIDENCE
The large body of material tendered in evidence supports the summary of the Crown case that I have outlined. Whilst I do not propose to summarise that evidence in its entirety there are four particular areas to which I should refer, namely:
(i) the accused's interviews with police;
(ii) the post mortem examination of the deceased;
(iii) the accused's history of mental illness; and
(iv) the expert medical evidence as to the accused's mental state at the time of the deceased's murder.
The accused's interviews
When arrested on the morning of 5 March 2013 police asked the accused what he could tell them about the death of the deceased. The accused replied:
"Um, just everything got to me".
The accused subsequently directed the police to the presence of a knife in the kitchen sink, telling them that he had "used it" and that he had "put it under (his) sleeve". He subsequently admitted to using the knife to stab the deceased. In the course of speaking with the police, the accused disclosed that he suffered from schizophrenia.
Upon arrival at the police station, a formal interview commenced in which the accused indicated that he did not wish to answer questions. However, at Q and A 63 the accused did say to police:
"I understand what I've done wrong. I, I just, you know, everything is just."
When asked (at Q 109) whether he wished to say anything further about the matter, the accused responded:
"All I am going to say is this, I, I pay for my crimes."
The accused then said:
"I am just sorry for what, to Steve's family'.
The accused was charged with the deceased's murder and was refused bail.
Some days later, the accused asked to speak with the police again, following which a formal interview was conducted on 13 March 2013. When asked (at Q 48) why it was that he wanted to speak to the police the accused responded:
"I just wanted to, ah, confess, just, just to get it out, out of the way so I can get what, do my time."
In the course of the interview the accused made reference to his medical history and told police (at Q 167-168) that he had been diagnosed with paranoid schizophrenia for which he was prescribed medication.
When asked about the death of the deceased, the accused told police (commencing at Q 311) that the deceased had assisted him in painting his premises several days before the incident and that in the course of doing so, he and the deceased had smoked a form of synthetic cannabis which had "made (him) paranoid". He told police (commencing at Q and A 386) that between that time and the time of the deceased's death, he had been unable to sleep and had attempted suicide by hanging on 3 March 2013. He explained to police (at Q and A 388):
"Yeah, 'cause I was, I was paranoid as and I was hearing voices saying that they're gonna kill me that they're all gonna kill me."
The accused was asked (commencing at Q 402):
"Q 402: Was that as a result of, did you get to that point because of your smoking Marijuana?
A: Yeah, 'cause I, I was, I didn't want to, I didn't want to hurt anybody because I was getting to the result where I was, I was gonna hurt somebody.
Q 403: Why, why was that?
A: Because the voices were telling me because the voices were telling me "they're, they're gonna; if you don't kill them they'll kill you first".
Q 404: Yeah, is it, is that all because it started back on the Thursday when you smoked that fake Pot?
A: Yeah.
Q 405: Is that where it all started?
A: Yeah.
Q 406: You were just angry were you...Steven getting the fake Pot?
A: I was just, yeah."
The accused told the police (commencing at Q and A 420) that at the time of killing the deceased he was:
"...Just hearing things saying 'you gonna, if you don't kill them, they're gonna kill you' and was talking, speaking in my own lingo - - - and I was, and then I was just, and then, I don't know if I end up talking...to it or I hear, I was hearing things, but, um, I end up just grabbing the knife and walked, walked over to, um, walked over to the ...to ... place - - - "
The accused explained to police that he had kept a knife under his bed. When asked (at Q 430) what he did at the deceased's premises the accused responded:
"I just, 'cause I, I, I was just hearing things and they, they were saying things, they were saying Steve and ...and them and Rollie and, and Kingie were all, were in it, all, all in on it and that they, they wanted to get rid of me and I, and I was, and I was, and I was thinking I'm gonna kill all of them...So I, but I just, I just stabbed Steve instead."
The accused explained to police that he had secreted the knife under the sleeve of a long sleeved top when he was walking to the deceased's premises and explained (in answer to Q 443) that he walked in and started stabbing the deceased. He then said (at Q and A 444):
"I just, I think I got him in the throat, or in the, in the shoulder, and then, then he freaked out and then, and then I took the knife and I started stabbing him in the stomach and he said, and the last words I heard from him was 'I, I saved, I saved you a Bud.' I said to him 'its not about the Bud' that's all, and that's the last words I said to him and then I walked out and Irene was telling me, or calling me, take, asking me to give her, give her the knife and I didn't trust her either...'cause I thought they were all in on it and I, and I, my whole intention was to go stab everybody in there but I just got Steve and, and it snapped me out of it when he, when he got up and, and he said 'oh I save you a Bud' and I just looked at him and I said 'its not about the Bud' and he, and he looked at me funny. He said, and he started freaking, he started freaking, and I just walked out and I wiped the blade on the newspaper that was outside."
The accused (at Q and A 658, 694-696 and 724) expressed his remorse for killing the deceased. In answer to Q 688 he described his mental state at the time that he killed the deceased:
"Um, I was just, I wasn't, I was over the anger, but it, it was just, just the voice in my head telling me that he's gonna kill me, and, um, I remember when I was, before my, just after my daughter was born there was a, I was staying down Manly in this, um, little granny flat, and there was a photo, there was a poster of Snoop Dog and it said "Murder was the cause" and I, and it ate away at me for years and I'm thinking that they're gonna try and murder or something. 'Cause, um, some lady before that, when my kids were born, some white lady said that Samoans are gonna rule the world one day and I, and I, and I didn't understand what she meant by that and, um, and it ate at me and I thought it was a conspiracy. And I, and I, 'cause I was Samoan I thought that, you know, they, they're gonna try and get rid of me so; I don't know why".
The deceased's post mortem examination
The deceased's post mortem examination was conducted on 8 March 2013 by Dr Allan Cala, a senior staff specialist in Forensic Pathology at the Newcastle Department of Forensic Medicine. Dr Cala found (inter alia) the following injuries:
(i) stab wounds to the right side of the chest, the left upper arm and left thigh, the most significant of which were those in the right side of the upper chest where separate stab wounds caused serious penetrating injury;
(ii) an interior stab wound which entered the upper lobe of the right lung and created a haemorrhagic stab wound track which was approximately 120mm in depth and which passed into and through the lung, penetrating the pericardial cavity surrounding the heart and creating a stab wound defect on the outer surface of the left atrium;
(iii) a stab wound which cut through the right sixth rib;
(iv) a stab wound which penetrated the right pleural cavity and entered the lower lobe of the right lung;
(v) a large quantity of blood in the right pleural cavity;
(vi) a smaller amount of blood in the pericardial cavity;
(vii) two "through and through" stab wounds on the left arm between the elbow and shoulder which had entered laterally and exited medially, creating stab wound defects behind the humerus;
(viii) two superficial stab wounds on the left thigh;
(ix) superficial incised wound to the back of the lower neck; and
(x) several superficial incised wounds on the hands which may have represented "defence injuries" but which could be alternatively explained by the finger tips having come into contact with the cutting edge of the murder weapon.
Dr Cala concluded that the stab wounds were the cause of the deceased's death.
The accused's history of mental illness
Contained within Exhibits A and B is a large volume of documentary material setting out the accused's history of mental illness. That material has been referred to by both Dr Allnutt and Dr Furst in their respective reports. In these circumstances, I do not propose to summarise all of it. However, the following matters are of particular relevance.
On 4 April 2000 the accused presented to Manly Hospital in the presence of his mother, in what was described as a "psychotic" state. A past history of schizophrenia was noted. The accused was discharged on 15 May 2000 into the care of the Parkes Community Mental Health Service. The discharge summary noted the following:
"Client arrived in a thought disordered state, laughing and giggling and responding to auditory hallucinations. Has lived an itinerant lifestyle for the past 5/52. Client had experience insulting auditory hallucinations for past year, with paranoia and ideas of reference...
Client initiated on Risperidone suffering continuous degrotory (sic) auditory hallucinations. Client displaying at times agitated thought disordered behaviour, with persecutory delusions and ideas of reference. Risperidone induced Akathisia and dose modified. Auditory hallucinations improving, 03/05/00 Olanzapine initiated in addition to Risperidone. 05/05/00 Olanzapine ceased due to extreme fatigue experienced by client."
On 12 January 2005 the accused was admitted to Bloomfield Hospital in Orange where he remained until 26 January 2005. The discharge summary prepared at the time noted a diagnosis of "psychotic relapse, schizo affective disorder". The summary recorded that the accused had been referred by the Parkes Community Mental Health Team because of the relapse of a psychotic illness compounded by marijuana use and a failure to adhere to his medication regime. It was noted that the accused was reporting increased auditory hallucinations, delusions and an elevated mood but that the persecutory delusions and auditory hallucinations had resolved upon the resumption of his medication.
The accused was admitted to Bloomfield Hospital again on 24 May 2007 due to concerns about recent mood elevation which were accompanied by disinhibited and hostile behaviour. In particular, he had been sunbaking naked in a park and had become threatening when asked to cover up by a passer by. He had then locked himself out of his house and had walked down the street wrapped in his towel, threatening again when no one would help him. A history of schizophrenia was again noted.
The summary prepared at the time of his discharge from Bloomfield Hospital on 13 June 2007 noted that although the accused had settled, he "admitted to being bothered by voices" and he remained a little paranoid, negatively misinterpreting comments from some people. An increase in his medication was prescribed which exhibited a further improvement in his mental state and he was released to continue further treatment in the community.
Eight days later, on 21 June 2007, the accused was again admitted to Bloomfield Hospital after he had attacked the front counter of a "McDonald's" restaurant with an axe. He told police (at Q and A 231 of his interview on 13 March 2013) that on this occasion he was hearing things and had become delusional, thinking that the character "Ronald McDonald" was a paedophile. At the time of his admission on that occasion, it was noted that the accused:
"...reported continuing psychotic symptoms after discharge from Bloomfield Hospital on 13.06.2007 - these included receiving "indirect comments" from members of the community, as well as auditory hallucinations. Some of the "indirect comments" were critical of him - for example, when a female in a bread shop in Parkes had commented that "the butter was fresh", he knew that she was talking critical about him. ... (His) psychotic symptoms after discharge had been compounded by ethanol and drug use. He also felt isolated in Parkes, because he had not been able to see his children."
The accused was discharged from Bloomfield Hospital on 27 July 2007. At that time it was noted that he had displayed ongoing positive symptoms of chronic schizophrenia exacerbated by recent cannabis use and isolation from his family. The discharge summary stated (inter alia):
"Iusi settled very quickly while at Bloomfield Hospital and his psychotic symptoms had completely resolved within two weeks. Iusi felt very remorseful about his actions at McDonalds in Parkes, and this was compounded by his guilt around the consequences of his actions, for his children.
Iusi was seen by the social worker who assisted in organising a discharge plan for Iusi and in liaising with Iusi's ex-wife and family."
There is also evidence that in 2007 and 2008 the accused was a resident of "Kallara", a mental health facility in Bathurst, during which time he was made the subject of a Community Treatment Order. On 25 March 2008 Dr Lumley, a Psychiatrist and Senior Specialist, recorded that the accused had a "chronic paranoid schizophrenic illness".
There is also evidence that in 2008 the accused spent a period in a men's refuge in Bathurst known as Solo House. An incident with one of the staff at that facility led to the accused being charged with offences of using a carriage service to threaten a person, for which he was placed on a bond.
On 10 March 2010 the accused was admitted to the Panorama Clinic in Bathurst, where he remained for 12 days. It was noted that he was psychotic at that time and that he engaged in polysubstance abuse.
On 13 March 2012 Dr Lumley wrote to the Mental Health Review Tribunal. Having noted that the accused's previous Community Treatment Order had lapsed, he said:
"Today he told me at a regular consultation that he had not been taking his oral medication for some years and instead he has been taking some illegal medication which was not prescribed. I feel strongly that Iusi ought to be under control of a CTO in order that we may provide adequate care and enforce the need for him to take medication not only for his mental illness (he suffers from chronic Schizophrenia) but also for his medical illness including diabetes. Therefore I would ask that he be given an order by the Tribunal."
On the same day Dr Lumley wrote to the accused's general practitioner Dr Jamison enclosing a copy of his letter and stating:
"It might be helpful for you to know that he Iusi has taken no oral medication for some years and that of course includes his diabetic treatment. Today he told me his back pain troubles him considerably and he is now buying Oxycotin (sic) illegally."
On 2 October 2012 Dr Natalie Johnston, the Psychiatric Registrar at Bloomfield Hospital wrote to the members of the Mental Health Review Tribunal. Having noted the accused's history of chronic schizophrenia, Dr Johnston said:
"Mr Afele has displayed very poor compliance with his oral medications. He is no longer on any oral psychotropic due to his poor compliance. He continues to abuse substances, including cannabis, intravenous opiates, and more recently heavy use of alcohol. When abusing substances, Mr Afele's mental state often deteriorates, resulting in re-emergence of psychotic symptoms, particularly if he is not adequately medicated. His past history is notable for periods of threatening and violent thoughts and behaviour met when mentally unwell. He displays no insight into his illness and indicates that he would not be compliant with medication if not a CTO. For this reason, and in order to reduce the risk to himself and others, Mr Afele requires an extension of his CTO to enable staff to continue to provide treatment, supervision and case management in the least restrictive environment."
THE SPECIALIST MEDICAL EVIDENCE
The evidence of Dr Richard Furst
On 12 July 2013 Dr Richard Furst, a Consultant Forensic Psychiatrist undertook an assessment of the accused at the request of his solicitors. Dr Furst noted the accused's history of mental illness as follows:
There was a lengthy history of mental illness, with his first psychiatric admissions to 'East Wing', at Manly Hospital, in April 2000 and at Bloomfield Hospital in Orange in 2001 for around two or three months. Mr Afele recalls feeling very paranoid and hearing voices on those occasions. The use of 'Ecstasy' (MDMA) and cannabis may well have precipitated his illness. His initial treatment was with the antipsychotic medication Risperidone. He was later treated with Olanzapine and Clopixol.
Mr Afele had about 5-6 admissions his psychiatric units over the last 13 years, one occasion being in 2006 when he "smashed up McDonalds with an axe." He was admitted to Bloomfield Hospital, progressing to the rehabilitation colleges known as 'SHIPS' for a period of around 12-months of psychiatric rehabilitation. Mr Afele was managed with the antipsychotic medication Clopixol Decanoate and a Community Treatment Order, being discharged to Bathurst in 2008.
He has been under the care of the Bathurst Community Mental Health Team over recent years, where his treating psychiatrist is Dr Lumley and his case manager is Margi Tottenham. His CTO was renewed by the Mental Health Review Tribunal every 6-12 months. He "was still taking Clopixol at a relatively large dose of 300 mg intramuscular injection weekly throughout 2012 and at the time of the events in question before the Court.
There were persistent psychotic symptoms at the time, including the belief that music from the radio and the television was reading his mind and telling him what to do. He believed that the birds were talking to him and was quite superstitious, stating "It was like if a crow turns up, it means something bad will happen."
He believed people saying "See ya" meant "See ya when I wanna be you," and that "Catch ya later" meant he would be "caught out."
He misinterpreted "Hi" as meaning "Hi-5," which meant the person wanted him to change, "because five means change." Mr Afele also read special in meaning whether people were holding things in their left-hand or right-hand, believing that right-hand was "pure" and the left-hand was "trouble." His description of such interpretations was highly suggestive of delusions of reference and paranoid thinking at the time, which appears to have been of a chronic and treatment resistant nature.
He also endorsed hearing a number of 'voices', apparent auditory hallucinations, including, "We are going to kill you" and "You're dead." The voices were familiar, sounding like his former partner Sonia Jackson's voice.
In terms of the accused's account of his offending, Dr Furst reported as follows:
He said he heard the voice of the deceased, Steven Chesworth, saying "You're dead. I'm going to kill you."
Mr Afele stopped smoking cannabis for around two months at the start of 2013, commencing martial arts training and feeling better in himself. His next-door neighbour painted his lounge room. Mr Afele said, "I felt weird from the paint. It was a strange feeling." He then smoked 'Galaxy', which is some form of synthetic cannabis, on the Thursday prior to the events in question (5 days prior).
In relation to the offence in question before the court, Mr Afele said, "I heard Steve's voice say 'Kill yourself.' I tried to hang myself on the Sunday [two days prior] by wrapping a curtain around the beam near my laundry. I sat down and panicked. I was very paranoid. I thought there was a conspiracy to kill me by people who lived in the flats because I was Samoan. I thought Steve was trying to get rid of me. I heard his voice. He was saying 'Die', 'I'm gonna to kill you' and 'You are dead'."
Mr Afele was due for his injection of the Clopixol with the Bathurst Mental Health Team on the morning of 05/03/13. He apparently heard Samoan voices on the morning in question telling him, "You've got to kill him," "He's getting smart," and "You won't see your children unless you kill him," which were consistent with Mr Afele experiencing command auditory hallucinations on the day in question. The 'voice' also said 'Kill him or he'll kill you."
Mr Afele was very paranoid, believing that there was a conspiracy. He had not slept over the previous 4-5 days. He believed that he was going to be killed.
Mr Afele said, "I just stabbed him... I thought they were going to murder me. I thought I was doing the right thing."
It would appear that he was compliant with his medication and Community Treatment Order at the time of the events, but his medication was ineffective in controlling his acute psychotic symptoms."
Dr Furst noted that at the time of his assessment the accused's treatment team at Long Bay Hospital were in "the process of the work-up for clozapine, which is a novel atypical antipsychotic, generally reserved for treatment resistant schizophrenia ..."
In terms of the accused's mental state at the time of examination, Dr Furst described him as "noticeably blunted in affect, consistent with a chronic mental illness such as schizophrenia". He said that although the accused's psychotic symptoms had diminished, he remained somewhat paranoid. He said that he was not particularly thought disordered, that he could follow all of the questions put to him, and that he was neither suicidal nor threatening. Dr Furst also expressed the view that the accused had some insight into his mental illness, and the need for ongoing treatment.
Having reviewed a number of the statements of witnesses, Dr Furst noted the accused's actions were unprovoked. He said that that this was consistent with the accused having been paranoid about the victim at the time. Dr Furst concluded that the accused met the criteria for the following mental and medical conditions:
(i) chronic treatment-resistant schizophrenia;
(ii) cannabis abuse;
(iii) non-insulin dependent diabetes; and
(iv) intervertebral disc herniation in the lower back.
Dr Furst explained that his diagnosis of treatment-resistant schizophrenia had been made on the basis of the history provided, the accused's presentation and a review of medical notes. He also noted the evidence that the accused had continued to suffer from symptoms of paranoia, auditory hallucinations and mood disturbance over a number of years despite active treatment with anti-psychotic medication and assertive community follow-up. Dr Furst then said:
"He has been managed as a mentally ill person in custody over recent months, including a work-up for treatment for a psychotic Illness with the antipsychotic medication Clozapine, which is generally reserved for people with treatment resistant illness.
Schizophrenia is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, mood instability, and bizarre behaviour as a consequence of the illness. There is often a prodromal period in which individuals with the illness feel lethargic, depressed and unable to cope, resulting in disruption to family relationships and poor social functioning. Frequent symptoms include paranoid beliefs, self-referential thinking, grandiose delusions and thought disorder.
Schizophrenia is thought to be biologically driven because of abnormalities in dopamine transmission, differences seen in brain volume and genetic transmission. It usually runs a chronic course requiring hospitalisation during acute episodes and the need for longer-term treatment with antipsychotic medication (tablets or injections). Non-compliance with medication and co-morbid substance abuse are frequent problems when managing this condition. Longer-term psychiatric admissions and rehabilitation are often indicated for treatment resistant schizophrenia, with Clozapine offering a favourable response for a number of people with that condition."
Dr Furst concluded that by reference to the criteria set out in R v Presser [1958] VR 45 and R v Kesavarajah (1994) 74 A Crim R 100 the accused was fit to be tried. In terms of the availability of a defence of mental illness, Dr Furst stated the following:
"Mr Afele presents as a 40-year-old male who has a lengthy history of severe and treatment resistant paranoid schizophrenia. He was suffering from a relapse of his psychotic illness at the time in question before the Court, with evidence of paranoid delusions about "murders," a belief that his own life was in danger, and command auditory hallucinations idling him to kill the victim. It would appear that he believed the victim, Steven Chesworth, was involved in some kind of conspiracy to have him killed, feeling morally justified about his actions at the time of the killing on 05/03/13.
I note that he told police shortly after the offence: "...just everything got to me... people talking about murder and shit.. .neighbours." He also cited the need to "protect myself." His responses to police were consistent with him being psychotic at the time and were consistent with the history provided by Mr Afele to myself at the time of recent assessment on 12/07/13.
In my opinion, Mr Afele was labouring under a defect of reason in the form of paranoid delusions that involved the victim and was also experiencing command auditory hallucinations. He suffers from severe treatment resistant schizophrenia, which has been recognized at law as a disease of the mind. He was probably aware of his actions but believed that he was doing the right thing when killing the victim and that this was necessary for his own protection, in response to voices he was hearing and paranoid. He has the mental illness defence available to him."
Dr Furst also concluded:
"Mr Afele has a serious mental illness and was unaware of the wrongfulness of his actions. He was probably also unable to control himself at the time in question".
Dr Furst recommended that the accused undergo further treatment in the psychiatric hospital at Long Bay. He concluded by expressing the view that in the event that the accused was found not guilty on the grounds of mental illness, the forensic hospital at Malabar would be the logical progression for him with regular reviews by the Mental Health Review Tribunal and the possible placement (when his condition sufficiently improved) at the Forensic Unit at Bloomfield Hospital.
The evidence of Dr Stephen Allnutt
At the request of the Director of Public Prosecutions Dr Stephen Allnutt, a Forensic Psychiatrist, assessed the accused on 30 September 2013 and provided a report of 13 October 2013. Dr Allnutt noted that the accused had been previously diagnosed with schizophrenia and recorded the following account of the offending:
"On the Thursday prior to the alleged offence he and the victim painted his house. The victim had brought along with him some synthetic cannabis called Galaxy. The Defendant had smoked about four to five cones. He had got this from the victim.
He stated that having smoked it he started to feel paranoid. He also started to hear voices saying, "They're going to kill me". While painting the house with the victim he began to think that the victim wanted to get rid of him. He started to feel panicky.
Over the next few days he was unable to sleep. He had continual paranoia and was hearing voices. He was hearing the voice of the victim saying that he was going to kill the Defendant, that he was a dead man. He heard the voice on a daily basis. He also thought that someone was coming through his house because the carpet had been moved.
On the Sunday before the alleged offence he heard the victim's voice saying kill yourself. The Defendant stated that he grabbed a curtain and put it around his neck. He tried to kill himself he said because he did not want to hurt anyone.
When he watched TV he was experiencing indirect comments from the TV and also from the radio which added to his paranoia.
When a song came on the radio he would hear the song say, "This would be the day that I die". This made him think that he wanted to die. He thought the victim wanted to kill him so he could get new neighbours. He thought that the victim had been conspiring with everybody in the unit to get rid of him. He thought that people were putting words in his mouth. They were making him say things that he never said and that they wanted to hear. He stated he could read the victim's body language and his body language was negative. At the time he had body language that said he was not "mutual".
On the day of the alleged offence he continued to hear the victim's voice saying he was going to kill him. The Defendant stated that he started speaking Samoan. He stated that he himself did not know Samoan so it was somebody putting words in his mouth. At the time he was in his flat, he thought that the victim was going to kill him. He grabbed a knife impulsively. His intention was to hurt the victim because the victim wanted to kill him. He thought killing the victim was going to stop all the voices. He went next door and walked into the house where he was sitting and stabbed him. At the time he was thinking of stabbing everybody else in the house except the woman because he thought they were conspiring against him to get rid of him with the victim. He never trusted anyone.
He then went back to his place. He wiped the blood off the knife. Afterwards he felt bad but he said at the time he thought he was doing the right thing because he thought they wanted to kill him.
Prior to the alleged offence he stated that neighbours were coming to the house and they were speaking about murders all the time and this also added to his idea that he thought they wanted to murder him. He heard Brolly and Kingys' voice also saying they wanted to kill him".
Dr Allnutt then turned to the accused's psychiatric history. He noted (inter alia) that there was a family history of schizophrenia, that the accused had been diagnosed a diabetic, and that he was a regular user of cannabis.
In terms of the accused's mental state at the time of his examination, Dr Allnutt reported:
"He presented as cooperative, well groomed. His speech was clear and coherent. He was mildly over weight. He maintained good eye contact. He did not manifest behaviours suggestive of side effect to psychiatric medication or neurological illness. His affect was somewhat restricted. There was no significant evidence of mood disorder but he did endorse ongoing psychotic symptoms involving perceptual disturbances, ideas of reference and persecutory beliefs. Cognitively he appeared to be intact. His capacity for insight and judgment appeared to be impaired and he appeared to be mildly confused at the time. There was no evidence of suicidal or aggressive ideation, plan or intent."
Dr Allnutt expressed the view that the accused manifested symptoms which were consistent with chronic treatment-resistant schizophrenia. He said that the accused was biologically predisposed to the development of schizophrenia given his family history and concluded that his functioning was mildly to moderately impaired, secondary to ongoing symptoms of psychosis that had diminished to some degree but which nevertheless persisted at time of his assessment.
In relation to the accused's mental state at the time of the offending, Dr Allnutt reported as follows:
"In my opinion, the Defendant was experiencing "a disease of the mind" at the material time of the alleged offence characterised by persecutory beliefs (believing that the victim and others that lived in his environment in his units were conspiring to kill him and that they belonged to a cult), auditory hallucinations (hearing the voice of the victim and others saying that they were going to kill him), referential ideas (believing that the TV and the radio were in some way communicating with him and hearing things like this is the day you are going to die over the radio), probable thought insertion (feeling as if he was being made to speak Samoan by the victim).
There was an exacerbation of psychotic symptoms that had been triggered by the consumption of synthetic cannabis five to six days prior to the alleged offence provided to him by the victim at a time that he and the victim were painting his apartment. While a Drug Induced Psychosis may have formed part of the differential diagnosis, in my view, he has an underlying Schizophrenia, which is a mental illness aggravated by drugs which gave rise to his disease of the mind at the time of the offending.
Having regard to the nature of the symptoms he was experiencing "a defect of reason" in that his delusional beliefs and perceptual disturbances where causing him to make irrational interpretations about his relationship with the victim and events that were occurring in this environment. His decision making with regard to his actions towards the victim was disturbed by irrational belief system derived from his "disease of the mind".
It is unlikely that his disease of the mind was of a nature or severity that it caused him to lose capacity to know the nature and consequence of his actions.
Significant evidence is his account in interview with the police in which he stated that his sole intention was to kill them all because he thought they were going to kill him, due to a conspiracy and they were all in a cult. He maintained position despite repeated attempts by the interviewers to suggest another underlying reason - Steve insulted him or they disrespected him- on each occasion he provided an alternative reason, that due to his voices, and persecutory beliefs at the time he believed that that unless he acted by killing the victim (and others) he was going to be killed.
Based on all evidence, he was significantly compromised in his capacity to know the wrongfulness of his actions from a moral perspective or to reason about the wrongfulness of his actions with a moderate degree of sense of composure. He stated at the time of the alleged offence he thought he was doing the right thing because they were planning to kill him. In this sense within his delusional world he saw his behaviour irrationally as an act of self-defence and thus felt morally justified in doing it at the material time that it happened. On this basis, I would regard him as having a defence of mental illness."
THE RELEVANT LEGISLATIVE PROVISIONS
Part 4 (ss. 37-39) of the Mental Health (Forensic Provisions) Act 1990 ("the Act") makes provision for a defence of mental illness. Section 37 is in the following terms:
37 Explanation to jury
If, on the trial of a person charged with an offence, a question is raised as to whether the person was, at the time of commission of the offence, mentally ill as referred to in section 38, the Court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings and must include in its explanation:
(a) a reference to the existence and composition of the Tribunal, and
(b) a reference to the relevant functions of the Tribunal with respect to forensic patients, including a reference to the requirements of this Act that the Tribunal may make an order for the release of a person detained in accordance with section 39 only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person's release.
Section 38 is in the following terms:
38 Special verdict
(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.
(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.
In the event that a special verdict is returned pursuant to s. 38, the provisions of s. 39 then apply:
39 Effect of finding and declaration of mental illness
(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.
(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release.
(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.
These various provisions, and their effect, were summarised by Hall J in R v Coleman [2010] NSWSC 177 at [69] and following (and were adopted by me in R v McDonald [2012] NSWSC 875 commencing at [5]):
"The legal and practical consequences of a finding that the accused is not guilty on the ground of mental illness may be shortly stated.
The statute which governs cases like this, namely, s 39(1) of the Mental Health (Forensic Provisions) Act, requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient, and falls under the supervision of a body called the Mental Health Review Tribunal.
The Mental Health Review Tribunal consists of a president and his or her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist, and the third member is a person who has suitable qualifications or experience for the task.
The tribunal is required to review the accused's case as soon as practicable after an order is made for his detention in strict custody. The tribunal may make orders as to his continued detention, care or treatment, or as to his release.
The tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person, or any member of the public, would not be seriously endangered by his release.
The Minister for Health and the Attorney-General may appear before the tribunal, or make submissions to the tribunal, in relation to the possible release of the accused.
Where an order for release is not made, the tribunal orders result in continued detention, care and treatment in a place and in a manner specified by the tribunal.
After the initial review, the tribunal must, at least once every six months, again review the case and make orders as to the accused's continued detention, care or treatment in a hospital, prison, or other place, or as to his release.
If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated, so that he may be a serious danger to others, a further order may be made by the tribunal for his apprehension, care and detention.
The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in education and therapeutic programs to ensure that the accused is properly cared for.
Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.
Security conditions (as necessary) are in place while the accused is detained in hospital, prison or other place, or if he is allowed to be temporarily absent from the place of detention.
The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time.
However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered."
THE DEFENCE OF MENTAL ILLNESS - GENERAL PRINCIPLES
In order to establish a defence on the grounds of mental illness, it must be established that at the time of committing the act causing the deceased's death the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and the nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong (see R v McNaghton (1843) 8 ER 718; R v Porter (1933) 55 CLR 182; R v S [1979] 2 NSWLR 1).
The test was stated by Dixon J in Porter (supra) at 189-190 in the following terms:
"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know, in this sense, whether his act was wrong if, through a disease or defect or disorder of the mind, he could not think rationally of the reasons which, to ordinary people make, that act right or wrong?
If, through the disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the every day standards of reasonable people."
A disease of the mind is any disease which is capable of affecting the mind, irrespective of whether it has a mental or physical origin and irrespective of whether or not the defect of reason caused is temporary or permanent; see R v Kemp [1957] 1 QB 399. However, it does not include the transitory effects of some application of an external factor such as violence or drugs or a psychological trauma to an otherwise healthy mind: see R v Falconer (1990) 171 CLR 30.
A person does not know the nature and quality of his act if he does not know the physical nature of what he is doing or the implications of it (see Porter (supra) at 188). A person does not know what he was doing was wrong when he does not know that it is wrong according to ordinary standards of right and wrong adopted by reasonable persons: see Stapleton v R (1952) 86 CLR 358 at 367.
The onus of proving the defence is on the accused, who must prove it on the balance of probabilities: see Mizzi v R (1960) 105 CLR 659. This is so, regardless of whether it is the Crown, the accused or the court that raises the defence: R v Ayoub [1984] 2 NSWLR 511.
If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173; Tumanako v R (1992) 64 A Crim R 149.
Where there is evidence which raises the defence, the court must firstly consider the elements of the offence with which the accused is charged. If satisfied that the elements are made out, the court must then proceed to consider the question of whether, having regard to the evidence of mental illness, the accused should be regarded as being criminally responsible for his actions.
THE SUBMISSIONS OF THE PARTIES
Senior Counsel for the accused submitted that I would be satisfied on all of the evidence that the accused had committed the crime of murder. He further submitted that I would be satisfied that the accused had raised the issue of mental illness on and from the time at which he had been taken into custody.
Senior counsel submitted that I would be satisfied on the balance of probabilities that at the time of killing the deceased, the accused had a relevant disease of the mind, namely schizophrenia, which was not transient, and which was productive of a defect of reason, such that the accused was not able to think rationally at the time. He also pointed to the fact that the accused had a history of psychosis associated with cannabis use and that such use had been seen to exacerbate his schizophrenic symptoms. In this regard, he pointed, in particular, to the evidence that the accused had used synthetic cannabis in the days leading up to the offence.
Senior counsel further submitted that based upon the entirety of the evidence, I would be satisfied on the balance of probabilities that whilst the accused may have known the nature and quality of his act, he did not know that what he was doing was wrong. In these circumstances, it was submitted that I would be satisfied on the balance of probabilities that the defence of mental illness had been made out.
The Crown made no submissions to the contrary of those made on behalf of the accused.
CONSIDERATION AND CONCLUSION
In circumstances where the accused's trial has proceeded before me without a jury, I record the fact that I have had regard to the provisions of s. 37 of the Act. I have also had regard to the provisions of s. 133 of the Criminal Procedure Act 1986, and particularly the provisions of s. 133(3) as to the necessity to have regard to any warning which would be required to be given to a jury.
I am satisfied on the basis of the evidence of Dr Cala that the deceased died on 5 March 2013 at Bathurst.
As I have already noted, the accused made a number of admissions to the police regarding the circumstances in which the deceased was killed. Having regard to those admissions, and also having regard to the statements of those persons who witnessed the incident, I am satisfied that the accused repeatedly stabbed the deceased. Having regard to the evidence of Dr Cala, I am satisfied that such stabbing was the cause of the deceased's death.
In light of the accused's admissions, and the eyewitness accounts of the incident, I am satisfied that the accused's act of repeatedly stabbing the deceased was voluntary, and was accompanied by an intention to kill the deceased.
Having reached those conclusions, I turn to consider the defence of mental illness.
The defence of mental illness is clearly raised on the evidence before me. In circumstances where there is unanimity of opinion as between Dr Allnutt and Dr Furst, and given that there is no evidence to the contrary, I am satisfied on the balance of probabilities that at the time of killing the deceased the accused was suffering from treatment resistant schizophrenia, and that his condition was marked by paranoid delusions and auditory hallucinations.
I am further satisfied, having regard to the opinions of Dr Allnutt and Dr Furst, that although the accused knew the nature and quality of his act in killing the deceased, he did not know that what he was doing was wrong. True it is that in answer to Q. 63 in the interview of 5 March 2013 the accused told police that he understood what he had done wrong. However, that statement was drawn to the specific attention of Dr Allnutt when giving evidence (at T9 L 4 and following) as well as Dr Furst (at T 17 L10). Dr Allnutt explained that it was necessary to look at the whole of the evidence and expressed the view that in circumstances where the accused's statement was made after he had been taken into custody, it was clear that he knew that his act was legally wrong. However, Dr Allnutt confirmed his opinion that on the whole of the evidence the accused did not know that killing the deceased was morally wrong. Dr Furst (at T17 L15-20) expressed a similar view. Both Dr Allnutt and Dr Furst expressly stated that the accused's statement to the police did not alter their respective views.
Accordingly, for these reasons, I am satisfied that the accused has made out the defence of mental illness on the balance of probabilities.
In making the orders that I am about to make, I extend my sympathy to the deceased's family. The events surrounding the deceased's death have no doubt been troubling and stressful for them, as indeed they would have been for the family of the accused.
ORDERS
For the foregoing reasons, I make the following orders:
(1) I find the accused, Iusi Afele, not guilty of the murder of Steven Chesworth, on the grounds of mental illness.
(2) I order that the accused be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law.
(3) I direct the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of the orders I have made.
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Decision last updated: 02 April 2014
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