R v Azbaa

[2014] NSWSC 1228

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Azbaa [2014] NSWSC 1228

Hearing dates:

26/08/2014

Decision date:

05 September 2014

Before:

Fullerton J

Decision:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Dani Amine Azbaa is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

3. I direct that the Registrar notify the Minister for Health of these orders.

4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.

Catchwords:

CRIMINAL LAW - murder - trial by judge alone - defence of mental illness - special verdict - not guilty of murder on the grounds of mental illness

Legislation Cited:

Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

R v Minani [2005] NSWCCA 226; 62 NSWLR 490
R v Pratt [2009] NSWSC 1108
R v Rodriguez [2010] NSWSC 198

Category:

Principal judgment

Parties:

The Crown
Dani Amine Azbaa (Accused)

Representation:

Counsel:
P Barrett (Crown)
N Steel (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2012/280326

Judgment

1. HER HONOUR: On 6 September 2012, the deceased, Anil Herat, was attacked and killed by Dani Amine Azbaa in his home in Springwood where he lived with his wife and from where he conducted his business as a solicitor. Mr Herat was alone when he was killed. He was aged 55.

1. At 5.14pm that day Mr Herat placed a triple-0 call in which he was heard screaming for help. Mr Azbaa could be heard in the background. While most of what was said was inaudible, Mr Azbaa was heard to shout out certain disjointed phrases such as "working for Sarkis brothers" and "Sarkis brothers" several times.

1. The deceased's neighbour, John Gildea, was alerted to very loud voices which sounded like a man yelling at the top of his voice for approximately 10 to 15 seconds after which he heard the sound of smashing glass which sounded to him like a rock going through a window. He could not make out the words and did not recognise the voice. He could hear dogs barking at the time of the sustained yelling. At 5.14pm Mr Gildea also placed a triple-0 call.

1. The contents of both triple-0 calls are generally consistent with the account Mr Azbaa gave to police in his ERISP on his arrest the following day when he admitted attacking and killing Mr Herat.

1. Police arrived at Mr Herat's home at approximately 5.30pm where they found him lying on the floor in a rear bedroom. There was a large amount of blood on the floor and the bed. Police also identified a glass window at the front of the house that had been broken from the outside. Ambulance officers attended at 5.59pm. They pronounced that Mr Herat was deceased.

1. The results of autopsy revealed multiple stab wounds to the deceased's body. There were five stab wounds to the chest and abdomen and four to the back and buttocks. Three stab wounds penetrated the abdominal cavity through the abdominal wall. Approximately 500ml of blood was present in the abdominal cavity. The pathologist concluded that death would have been the consequence of blood loss due to stab wound(s) to the abdomen.

1. There were no eyewitnesses to the fatal attack. However, in the course of the investigation police were provided with information from a number of people to the effect that a male matching Mr Azbaa's description was observed in the Springwood area proximate to the time when Mr Herat was attacked and killed. CCTV footage from the Springwood railway station identifies Mr Azbaa leaving the Springwood train station at 4.28pm and walking in the direction of Mr Herat's home. The same footage also shows him returning to the train station at 6.45pm.

Mr Azbaa's statements to witnesses prior to the murder

1. A number of witness statements forming part of the compendium of documents tendered by consent at the trial assist in the reconstruction of Mr Azbaa's movements prior to the killing. They also provide some insight into his state of mind at that time.

1. On 5 September 2012 (the day before the killing) Mr Azbaa approached Dr Subramaniyan at her place of work in Parramatta in order to obtain Mr Herat's address. Dr Subramaniyan is the principal solicitor of Success Lawyers and Barristers with whom Mr Herat worked as a consultant. Mr Azbaa sought legal advice from Dr Subramaniyan's firm in relation to an unfair dismissal complaint. Although Dr Subramaniyan was present at all the conferences with Mr Azbaa and attended a meeting with the Fair Work Inspector with Mr Azbaa on one occasion, Mr Herat had carriage of the matter. She refused to supply Mr Herat's address but she did provide his phone number. Although Dr Subramaniyan spoke with Mr Herat the following day about an unrelated matter she did not mention Mr Azbaa's visit.

1. On the morning of 6 September 2012 (the day of the killing) a man described as carrying an Adidas backpack walked into the Hunter Street Eye Specialist apparently looking for someone. When the secretary asked him who he was looking for, the man repeated the name "Herat". When she said there was no one there by that name, the man said "lawyers" and something like "they tricked". She then realised that the man was looking for the lawyers who had previously occupied a suite in the building. The man declined her offer of the phone number of "Herat's Solicitors". Instead, he asked her, "Where are they?", and appeared to be in a state of high agitation.

1. While the secretary was unable to make out some of what the man was saying, she was able to discern certain words and phrases, including "He's ruined our life" or "He's ruined my life". He then made throat slitting gestures across his neck and said "I want him", "I want to kill him", "I'm going to kill him" and "I want his home address". He also frequently mentioned "brother".

1. Some time between 4pm and 5pm on 6 September 2012 a man described as carrying a dark backpack asked a pizza shop owner in Springwood for directions to the road on which Mr Herat resided. The shop owner gave the man directions.

1. At about 4.45pm on 6 September 2012 a man approached the receptionist at the Springwood Balance Family Medical Practice asking for directions to the road on which Mr Herat resided. She googled the road and printed out a map. The man thanked her and left.

1. Mr Azbaa's account to police is generally consistent with these accounts. He told police he asked Dr Subramaniyan for Mr Herat's address the day before he killed him but that he found Mr Herat's details online. He also told police that he asked someone at a Springwood restaurant for general directions to the road on which Mr Herat resided and that "a lady secretary" from a "clinic" printed him a map.

1. At about 6.15pm on 7 September 2012 (the day after the killing) Mr Azbaa approached the front desk of a club at Galston and asked the manager to ring the police for him. When asked what was wrong, Mr Azbaa replied, "I've killed somebody with a knife and want to be arrested by the police and go to jail". The manager rang Hornsby police and informed them of the situation. He then handed the phone to Mr Azbaa. Mr Azbaa said to the officer, "I killed a man yesterday at Springwood and I need the police to come and get me and take me to jail". He also said, "I poured stuff over something in the city and I set it alight. Can you please send the police to get me, I want to go to jail".

1. Police officers arrived at the club shortly thereafter. Mr Azbaa had a large knife in a sheath tucked into his trousers. This was removed and he was arrested without incident. He was wearing the same clothing, cap and boots that he was seen to be wearing in the CCTV footage the previous day.

1. Later that night, Mr Azbaa participated in an ERISP (assisted by an interpreter) during which he made admissions to having killed Mr Herat. He told police that he went to Springwood in order to kill the deceased and took a knife with him for that purpose. He told police he rang the doorbell of the deceased's home a number of times. When no one came to the door, he walked around the balcony of the house. Mr Herat saw him and opened the front door. A few words were exchanged before they started fighting, in the course of which punches were thrown. Mr Herat managed to push Mr Azbaa backwards and out the door which he then slammed shut. Mr Azbaa heard the deceased call triple-0 and say, "He's going to kill me, he's going to burn the house". Mr Azbaa then broke the front window with a pot plant, entered the house and attacked Mr Herat with the knife.

1. Mr Azbaa also told police that he knew that the deceased was dead. He said he then left the house and hid in nearby bushland before travelling by train to the city. He also told police that he attempted to set fire to the deceased's home. The evidence before me does not disclose whether there was any attempted arson.

1. Mr Azbaa explained his motivation in calling the police as follows:

A: 'Cause on the way I thought that I would just surrender myself to the police as I didn't want to do anything wrong. They put pressure on me and they made me do this.

Q: Who's they?

A (Int): Anil Herat and Sarkis Brothers.

1. He also told police that he had intentionally left his Adidas backpack at the scene so that police would be able to identify him as the killer.

1. It is also clear that he believed, albeit wholly irrationally, that his actions were justified as revenge for what he believed to be the damage Mr Herat had caused to his name and reputation and because he believed, also wholly irrationally, that Mr Herat had ruined his life and his future in Australia.

1. When police asked him whether he had taken anything from Mr Herat's house when he left, he said:

A: No, I just had that envelope that had my papers in it the white envelope. Because I took all my paperwork with me so that if the police caught me there then I could show them my documents and know why I had killed him.

...

Q: ... How, how did you feel after you left Mr Herat's house?

A (Int): Normal, very normal.

...

Q: Were you satisfied?

A (Int): Satisfied with that, yes. Because the last three years I have been because of the order that Anil Herat did I have been living on the streets. Haven't been able to work at all in Sydney.

...

Q: OK. After you killed Mr Herat, why didn't you get rid of your clothing?

A (Int): I don't want to get away or run away from the crime. I want them to know that it was me because they're the ones that killed... honour... going to put down my honour, my name. And they said that to all people and they told them that I was gay and I had no right in life. I want all the people to know that I killed Mr Herat and everyone know that I burnt down the Fair Work Ombudsman and still thinking about killing the Sarkis Brothers.

...

Q: But do you understand that the actions you have taken are illegal?

A (Int): I know... But I'm not going to go back to my country without taking my revenge.

1. Mr Azbaa was formally charged with Mr Herat's murder at the conclusion of the ERISP in the early hours of 8 September 2012. He has been detained in the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre since his arrest.

The trial

1. With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986 (NSW), Mr Azbaa's trial was listed to proceed without a jury. On 26 August 2014 he was arraigned before me. He pleaded not guilty on the ground of mental illness as provided for in s 22(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act").

1. The sole issue is whether Mr Azbaa has discharged the onus of establishing, on the probabilities, that he should be acquitted of murder on the grounds of mental illness pursuant to s 38 of the Act. Section 38 provides that a special verdict of not guilty by reason of mental illness must be returned if at the time of the offence the person was mentally ill so as not to be responsible, according to law, for his or her actions at the time the offence was committed. In R v Rodriguez [2010] NSWSC 198 at [33], Johnson J succinctly set out what is required to establish the defence of mental illness:

To establish the defence of mental illness, it must be proved upon the balance of probabilities that at the time of committing the acts causing death, the Accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or if he did know it, that he did not know what he was doing was wrong. A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-190.

1. Both the Crown and counsel for Mr Azbaa were in agreement that a special verdict on the basis of mental illness was available and should be returned in this case.

1. The defence of mental illness will be made out in this case if I am satisfied, on the balance of probabilities, that at the time Mr Azbaa stabbed the deceased he was suffering from a defect of reason because of mental illness such that he did not know that it was wrong to act as he did. Although I must be satisfied that Mr Azbaa's state of mind at the time he killed the deceased (a state of mind productive of a defect of reason and involving a disorder of the capacity to reason that the act was wrong) was one of disease, disorder or disturbance arising from a condition, it is unnecessary that I make any finding as to whether the condition is temporary or longstanding, curable or incurable (see R v Pratt [2009] NSWSC 1108 at [19]).

1. In deciding whether a special verdict should be returned I am obliged to have regard to the legal and practical consequences of a finding that Mr Azbaa is not guilty of murder on the grounds of mental illness. I am not, however, required to decide whether the requisite intent for the offence of murder, that is, either an intention to kill or to inflict grievous bodily harm, is proved (see R v Minani [2005] NSWCCA 226; 62 NSWLR 490). That question only arises if I do not find that the defence of mental illness is established. In this case, however, I have no reason to doubt Mr Azbaa intended to kill Mr Herat.

1. A compendium of documents, including a crown case statement, witness statements and the reports of two forensic psychiatrists, was tendered by consent. Mr Azbaa was assessed by Dr Adam Martin at the request of the Director of Public Prosecutions on 16 June 2014 and by Dr Olav Nielssen at the request of his legal representatives on 5 May 2014.

1. No oral evidence was called in the proceedings.

Mr Azbaa's employment with Sarkis Brothers and his relationship with the deceased

1. Mr Azbaa was a stonemason from Lebanon who was sponsored on a work visa to come to Australia by a building company owned by Sarkis Brothers Pty Ltd. He arrived in Australia in May 2009.

1. George Sarkis is the director of Sarkis Brothers Pty Ltd. According to Mr Sarkis, Mr Azbaa displayed what he describes as "unusual" behaviour from January 2010 evidenced by mood swings and random displays of temper. Mr Azbaa also accused Mr Sarkis of forging his signature on immigration documents. Between February and March 2010 Mr Azbaa was frequently absent from work. Mr Sarkis attempted to have him resume work but, as he was unsuccessful, Mr Sarkis withdrew the company's sponsorship of Mr Azbaa's visa and notified the Department of Immigration. He cited Mr Azbaa's "unsafe work practices" as the reason he was dismissed.

1. Mr Azbaa complained to the Fair Work Ombudsman that he had been unfairly dismissed. Between May and September 2010 the Ombudsman dealt with the unfair dismissal complaint.

1. Mr Herat was retained to act for Mr Azbaa. Although the Ombudsman found that the Sarkis Brothers had unfairly dismissed Mr Azbaa and that he was entitled for a modest amount in compensation, he was not reinstated. That decision impacted on Mr Azbaa's right to remain in Australia since the work visa required him to be employed if he was to legally remain here. In this unsettled state, and because of what I am satisfied was his underlying mental illness, he apparently formed the irrational belief that Mr Herat was working in collaboration with the Sarkis Brothers and not on his behalf. He also apparently believed that Mr Herat and the Sarkis Brothers committed fraud and told lies about him so that no one else would employ him. In the ERISP he was asked why he was motivated to kill Mr Herat to which he said:

A (Int) So when the order came out that I was unstable um, with the refugee and I didn't have any money to be able to appeal that because they had stopped my work. And I can't go back to my homeland in Lebanon because I have a problem with the um, Muslim Brotherhood.

Q: OK.

A (Int): With that all that they've done they've ruined my whole life and my future because they said that I was mentally unstable. So I can't get married to anyone and I can't work and I can't leave here and go to any other country.

...

A (Int): Immigration was also trying to um, get me out of the country. They were putting pressure on them. So that's why I became angry and wanted to get my revenge. I went down and I burned the Fair Work Ombudsman... I went down and I killed Anil Herat.

Mr Azbaa's recollection of events leading up to the murder provided to Dr Nielssen and Dr Martin

1. Dr Nielssen, forensic psychiatrist, assessed Mr Azbaa on 5 May 2014. He told Dr Nielssen that he was "hearing voices all the time". He said that the voices "told [him] kill the guy... kill the lawyer... make fire". When asked why he had to obey the voices, he said "hearing voices say do it... I do it every time". He told Dr Nielssen that Mr Herat was "not the lawyer for me... he is the private lawyer for Sarkis brother". He also said that he believed Mr Herat had made the decision to cancel his visa and also to cancel his case before the Fair Work Ombudsman. Mr Azbaa confirmed what he told police, namely that he asked for directions to Mr Herat's home and that he spoke with him prior to stabbing him. In addition to blaming Mr Herat for making decisions adverse to him, Dr Nielssen reported that Mr Azbaa was angry with the Fair Work Ombudsman.

1. Dr Martin, forensic psychiatrist, assessed Mr Azbaa on 16 June 2014. Mr Azbaa often responded to Dr Martin's questions by saying, "I have hearing voices" or words to that effect. With respect to the killing, Mr Azbaa said, "I was hearing voices told me to kill the lawyer and schizophrenia". He also told Dr Martin that Mr Herat had cancelled his visa on two occasions. When asked about his understanding of the moral wrongfulness of the killing, Mr Azbaa said, "I can't make control - hearing voices make control for me".

Mr Azbaa's history as recounted to Dr Martin and Dr Nielssen

1. Mr Azbaa was 37 years old at the time of his arrest. He has never married and has no children. He was born in Lebanon and is the oldest of six children, with two brothers and three sisters. One of his brothers has schizophrenia for which he receives treatment. Mr Azbaa's schooling was disrupted as result of the conflict in Lebanon. He began working with his father as a stonemason from the age of 18. In 2009 he came to Australia on a work visa.

1. Mr Azbaa told Dr Nielssen that he had been admitted to hospital in Beirut on about five occasions prior to coming to Australia for treatment for schizophrenia. He reported contact with mental health services for the first time as a child where he was first given medication after hearing voices. He said his first admission to hospital was at the age of eighteen. He reported that whenever he stopped taking his medication he would become unwell and would be readmitted to hospital.

1. He told Dr Nielssen that he began drinking alcohol around the age of 18 and said that alcohol "make [him] sick and make [him] make trouble". He began using cannabis around the same age and smoked that drug every day. Although he had been advised against smoking cannabis because of his mental illness, he believed it calmed him. He also reported occasionally used cocaine and methamphetamine.

1. At the time he left for Australia he was under doctor's advice to maintain his medication. He told Dr Nielssen that when he arrived he stopped taking his medication and that after a few months "the voices came back". By the time of the killing he said he was "hearing voices all the time".

1. He is currently taking prescribed antipsychotic medications consisting of 400ml of zuclopenthixol every two weeks, together with nightly doses of olanzapine and quetiapine. He is prescribed benztropine to manage the side effects of the antipsychotic medication.

1. Both Dr Nielssen and Dr Martin described Mr Azbaa's verbal responses on clinical assessment as brief and impoverished in content. Dr Nielssen described his movements as slow and his emotional responses as limited. He opined that Mr Azbaa's presentation was consistent with a chronic form of schizophrenia.

1. Dr Martin described Mr Azbaa as appearing preoccupied and guarded. He told Dr Martin that he was hearing voices telling him not to speak to Dr Martin in detail. This is consistent with the more comprehensive responses Mr Azbaa gave Dr Nielssen compared to those given to Dr Martin. There are, however, no material inconsistencies between the accounts given to the two forensic psychiatrists.

Opinions of Dr Nielssen and Dr Martin

1. After his consultation with Mr Azbaa and upon a review of the Crown case statement and related material, Dr Nielssen diagnosed Mr Azbaa as suffering from chronic, treatment-resistant schizophrenia.

1. Dr Nielssen described schizophrenia as:

... a degenerative neurological condition affecting the brain, which produces a pattern of irrational beliefs, impairment in emotional regulation and in the capacity for logical thinking that is recognised in law to be a disease of the mind.

1. Dr Nielssen also diagnosed Mr Azbaa as suffering from a substance dependence and abuse disorder on the basis of his "account of a pattern of hazardous alcohol use, and his use of cannabis and stimulant drugs known to be especially harmful in patients with schizophrenia".

1. Dr Nielssen was of the ultimate opinion that:

... At the time of [the offence], Mr Azbaa was affected by a defect of reason in the form of the delusional belief that Mr Herat and the Fair Work Ombudsman had made malicious decisions against him to deprive him of his job and compensation. His behaviour, including the planning of the [offence], indicates that he was aware of the nature and quality of his actions. However I believe that at the time of [the offence] he was deprived of the ability to reason with sense or composure about the moral wrongfulness of his actions because of the effect of an acute exacerbation of his mental illness on his reasoning ability and the intrusive and overpowering effect of commanding auditory hallucinations.

1. In effect, the acute exacerbation of Mr Azbaa's schizophrenia:

... produced an abnormality of mind that had a significant effect on his perception of events, his ability to judge right from wrong and his capacity to control his actions, which would allow him to raise the defence of substantial impairment by abnormality of mind to the charge of murder.

1. Dr Martin was of the same opinion. He concluded that:

...the history I obtained ..., together with findings on mental state examination and the available collateral information, strongly suggests that [Mr Azbaa] suffers a major mental illness, probably paranoid schizophrenia, associated with substance misuse (cannabis and alcohol) ...

...His account to the police, consistent with the other evidence made available, suggests strongly ... that he was motivated by anger and revenge, as a result of persecutory thoughts towards the victim and the ombudsman's office, and engaged in premeditated and organised violence, feeling morally justified in doing so, and having no concern in being caught by the police. In fact, he seems to infer that he wanted the police to know he killed so that his actions could be known, and he could somehow be vindicated, or have his honour avenged.

1. In short (Dr Martin went on to say):

Based on the available information at the time of writing, the alleged actions appear to be goal-directed and deliberate, but... were [in fact] the product of disordered thinking and persecutory delusions as a result of having a major mental illness... it is likely that his paranoid beliefs caused rage and the desire for revenge, and impacted on his ability to understand the moral wrongfulness of his actions.

1. Dr Nielssen reported that Mr Azbaa will require lifelong psychiatric treatment. With respect to Mr Azbaa's ongoing care, Dr Martin said:

... In terms of future management, he appears to continue to have psychotic symptoms despite being on high dosage of two anti-psychotic medications, and it is probable that he would be considered "treatment-resistant" and ... require assertive treatment in a secure psychiatric facility such as the Forensic Hospital and probably would benefit from a trial of the anti-psychotic medication, Clozapine.

1. I fully endorse Dr Martin's recommendations.

Conclusion

1. I well appreciate that these proceedings and my findings will do little to ameliorate the unimaginable grief, perhaps even disbelief, suffered by Mr Herat's family, friends and colleagues at his death in such violent circumstances. I particularly acknowledge the loss to his family of a much loved husband and father. I extend to them my personal sympathy and the sympathy on behalf of the Court. The legal profession has also lost a valued member. I accept that feelings of anger and frustration will likely surface from time to time but in our system of justice only the mentally competent are punished as criminal offenders.

1. I am satisfied, on the balance of probabilities, that at the time Mr Azbaa killed the deceased he was suffering from an acute exacerbation of chronic schizophrenia such that he did not know that it was wrong by acceptable community standards to act as he did in inflicting multiple stab wounds upon Mr Herat and, by that conduct, causing his death.

Orders

1. Accordingly, I make the following orders:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Dani Amine Azbaa is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.

3. I direct that the Registrar notify the Minister for Health of these orders.

4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.

**********

Amendments

09 September 2014 - Typographical errors corrected

Amended paragraphs: 1; 17

Decision last updated: 09 September 2014