R v Brian Lee (No.2)

[2019] NSWSC 586

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

R v Brian Lee (No.2) [2019] NSWSC 586

Hearing dates:

20 May 2019

Date of orders:

20 May 2019

Decision date:

20 May 2019

Jurisdiction:

Common Law - Criminal

Before:

Garling J

Decision:

Verdict:

 

Not guilty of the offence of murder on the grounds of mental illness.

 

Orders:

 (1)   Order that Brian Lee be detained at the Metropolitan Reception and Remand Centre at Silverwater or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
(2)   Direct the Registrar of the Court to notify the Minister for Health of this judgment and order.
(3)   Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation:
(a)   a copy of these reasons for verdict and orders;
(b)   a transcript of these proceedings; and
(c)   a copy of each of the Exhibits tendered at the trial.

Catchwords:

CRIME – Criminal liability — Mental illness defence – proved – no issue of principle

Legislation Cited:

Crimes Act 1990
Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Mental Health Act 2007

Cases Cited:

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v Coles [2008] NSWSC 682
R v Huy Pham [2007] NSWSC 1313
R v Matusevich & Thompson [1976] VR 470
R v M'Naughten (1843) 8 ER 718
R v Porter [1933] HCA 1;(1933) 55 CLR 182
R v Rodriguez [2010] NSWSC 198
R v Winningham (unreported, NSWCCA, 10 May 1995)
Regina v Matheis (1958) 58 SR (NSW) 321
Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Regina (Crown)
Brian Lee (Accused)

Representation:

Counsel:
A Robertson (Crown)
N Steel (Accused)

  Solicitors:
Director of Public Prosecutions (Crown)
Sydney Criminal Defence Lawyers (Accused)

File Number(s):

2018/00013154

Publication restriction:

Not Applicable

EX TEMPORE Judgment

1. By an Indictment presented on 2 October 2018, Brian Lee is accused of the murder of Klaus Petr, contrary to s 18(1)(a) of the Crimes Act 1990.

2. The Accused, has pleaded not guilty to the murder of Mr Petr on 13 January 2018 at Hurstville, New South Wales.

3. Counsel for the Accused submits I should return a special verdict of not guilty by reason of mental illness as provided for in s 38 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”).

4. The Accused has elected to be tried without a jury: s 132 Criminal Procedure Act 1986.

Trial by judge alone

5. Where an Accused is tried without a jury, s 133(2) of the Criminal Procedure Act imposes an obligations upon the trial Judge to set out in the judgment:

“… the principles of law applied by the Judge and the findings of fact on which the Judge relied.” 

6. This section requires me to expose in this judgment my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [28]. This requirement however does not extend to publishing a judgment in the form a summing up would have taken had the trial been before a jury: R v Winningham (unreported, NSWCCA, 10 May 1995).

7. Section 133(3) requires me to take into account any warning which I would be required to give to a jury as well as the reasons why, notwithstanding the warning or as a consequence of it, I have reached a particular verdict: Fleming at [32]-[33].

Facts

8. The Crown and the Accused agreed on all the relevant facts surrounding the death of Klaus Petr. The full Statement of Agreed Facts was tendered in Court and became Exhibit A. I draw from that statement in the findings that follow.

9. As at January 2018, the Accused, then aged 29, was unemployed and a recipient of a Centrelink Newstart Allowance. The Accused was living in the family home in Patrick Street, Hurstville, New South Wales with his mother, May Lee and identical twin brother, Daniel Lee (“Daniel”).

10. At the time of the killing, the Accused’s mother was travelling in China for one to two months, leaving the Accused and Daniel alone in the family home.

Events leading up to the Death of Mr Petr

11. At about 1:30am on the morning of Saturday 13 January 2018, Daniel heard the Accused speaking loudly in Cantonese from his bedroom. In response to the disturbance, Daniel sent his brother a text message asking him to be quiet. This request was ignored, so Daniel walked into the Accused's bedroom. It appeared that the Accused was using social media and talking into his phone. Daniel asked him, again, to be quiet.

12. Later that morning, at around 6.00am, Daniel was once again awoken by the sound of the Accused speaking loudly. He was using names of fictional people who have frequented his past psychotic episodes. Daniel yelled out to the Accused from his room, asking him what he was doing. The Accused replied, “Sorry, I'm going to stab someone”.

13. Daniel then heard the front door of the house shut as the Accused walked outside. The Accused got into Daniel’s car and drove away from the family home in a southerly direction towards the centre of Hurstville.

14. Daniel immediately telephoned Hurstville Police Station and spoke to Constable Michael Nutt. Daniel told Constable Nutt that his brother was having a psychotic episode and had said he wanted to stab someone. Daniel said that the Accused was a paranoid schizophrenic and had driven away in his (Daniel’s) car. He described what the Accused was wearing and where he might be headed.

15. Shortly after 6:00am, the Accused parked the car near the centre of Hurtsville. He then got out of the car and walked along Forest Road, before turning into a vacant block of land used like a park, adjacent to the Hurstville Railway Station (“the park”).

16. Klaus Petr, aged 56, was sitting down on a bench in the park eating his breakfast. At about 6:09am, the Accused walked up to Mr Petr from behind, took out a knife and stabbed him. The Accused then ran away with the knife in hand. This was recorded on CCTV footage.

17. After the stabbing, Mr Petr walked from the park towards Hurstville Railway Station, where he eventually collapsed. A passer-by called triple zero and at approximately 6:20 am, Constable Haigh from the NSW Police and several other officers, arrived at the scene.

18. NSW Ambulance staff arrived at the scene shortly after the police but efforts to revive Mr Petr were unsuccessful. The post mortem examination of the deceased revealed that the cause of death was a stab wound to the neck and another to the chest. The latter wound also damaged the right subclavion vein, and the right internal jugular vein which led to extensive bleeding.

Events after the Death of Mr Petr

19. Meanwhile, at around 6:10am, less than 15 minutes after the Accused originally drove away from the house in Daniel’s car, the Accused returned home. Once at home, he washed the knife in the kitchen sink and placed it on the drying rack. When Daniel asked his brother what he had done, the Accused replied, “I stabbed someone”.

20. Daniel immediately picked up the knife from the drying rack, left the house, and called the police. Shortly after Daniel rang, three police officers arrived at the Patrick Street home and knocked on the front door. Initially there was no answer, but eventually the Accused came to the door. He was arrested by Sgt. Joseph Dable. After Sgt. Dable cautioned the Accused, the following exchange took place:

“Sgt Dable:    What happened today?

Accused:    I stabbed a guy, the satellites told me to do it.

Sgt Dable:    When did you stab the guy?

Accused:    Today, at Hurstville railway station.”

21. The Accused was taken to the St George Police Station. He nominated Karen Hutchings (Jiazhen Xia) as his support person, whom he described as his cousin. Shortly after Ms Hutchings arrived at the police station, Detective Senior Constable Benjamin O’Reilly overheard her asking the Accused what had happened. The Accused told Ms Hutchings, “I stabbed a guy here, here and here”. He then motioned to the right side of his neck, the right side of his chest and he tapped his right thigh.

22. Shortly after that interaction, Ms Hutchings withdrew as the Accused’s support person and was replaced by Fiona Godsell, a member of the Salvation Army.

23. At 3:45pm, DSC O’Reilly conducted a videorecorded interview with the Accused (in the presence of Ms Godsell and another detective). During that interview, the Accused admitted to stabbing the deceased in the neck and the right side of the chest.

24. Later during a further interview, conducted in the early evening, the Accused told police that when he woke up that morning, he heard voices provoking him to attack someone by stabbing them. He identified the names which he attributed to the voices and said that they talked to him through satellites.

Factual conclusions

25. From all the agreed facts, I am satisfied that, on the morning of Saturday, 13 January 2018, the Accused stabbed Mr Petr, thereby causing his death. I am satisfied beyond reasonable doubt that the Accused intended to cause grievous bodily harm to Mr Petr because of the number and nature of the stabbing injuries; the Accused’s statement to his brother of his intention to stab someone; and his multiple confessions after the event to his brother, Ms Hutchinson and to police officers.

26. But for the defence of mental illness, I am satisfied beyond reasonable doubt that the Crown has proved all the elements of the offence of murder. Counsel for the Accused did not submit to the contrary of this conclusion.

27. I must now turn to whether the Accused was suffering from a mental illness so as to warrant the finding of a special verdict.

History of the Accused’s Mental State

28. Evidence of Mr Lee’s mental state at the time of the commission of the offence is to be drawn from the separate expert reports by two forensic psychiatrists.

29. Professor David M. Greenberg conducted a psychiatric assessment of the Accused on 6 March 2019. Dr Richard Furst assessed the Accused on 16 August 2018. There are no differences of substance between the reports of either expert.

30. In arriving at their conclusions about Mr Lee’s mental state, the experts relied upon various sources of information including medical records, the Brief of Evidence and police documents. I am satisfied that I should approach the histories provided to the psychiatrists as evidence of their truth for all purposes: s60, Evidence Act 1995.

31. The Accused was born in Guangzhou, China, on 7 October 1988. The Accused moved to Australia with his parents in 1991 at age 3.

32. Whilst there are no early indications of learning difficulties or Attention Deficit Hyperactivity Disorder, the Accused performed poorly at school and was suspended twice - once in Year 9 and again in Year 10. He left school during Year 10.

33. The Accused’s parents divorced when he was 16 or 17 years old and his father returned to China, where he currently still lives. There is no recorded history of mental illness in the family.

34. The Accused’s earliest reported memory of hallucinations and delusions dates back to when he was in primary school. On one occasion, the Accused reportedly told his Year 2 teacher that he could hear “police talking” and his teacher is said to have told him that the voices were “satellites”. The Accused stated that the voices and his belief in the satellites continued into his adult years and are ongoing. During his assessment with Dr Furst, the Accused said, “[he] thought it was the police using satellites to watch over the area. I hear them all the time. They listen. They are watching the area”.

35. The Accused reported using cannabis from the age of 13 or 14 until he was about 20 years old. He used the drug heavily between the ages of 18 and 20 but largely ceased smoking after that time. The Accused reported using the drug ice on approximately 10 to 15 occasions between the ages of 14 to 18. He states that he has used ice on only two further occasions since that time.

36. In November 2008, at the age of 20 the Accused was formally diagnosed with Schizophrenia.

37. Prior to his diagnoses, the Accused had been regularly attending the First Episode Psychosis Service in Canterbury, but had denied any psychotic symptoms. In November 2007, he began to present with somatic delusions that he had throat and brain cancer and on 24 June 2008, he presented to the Emergency Department at Canterbury Hospital with testicular pain.

38. On 5 June 2008, the Accused lost control of the car he was driving and crashed into a pole. He was reportedly found laughing at the scene of the crash. The Accused was eventually referred to the Community Mental Health Service because of bizarre behaviour and social withdrawal. Following his initial diagnosis in 2008, the Accused had psychiatric admissions to various hospitals.

39. The Accused was admitted to Bankstown Hospital on 14 January 2010, and discharged on 2 February 2010. He was admitted with chronic symptoms of psychosis despite treatment with medication over the previous three months. He refused a trial of a novel antipsychotic medication reserved for people suffering from treatment resistant schizophrenia, and decided to continue with standard antipsychotic medications.

40. Between 31 August 2010 and 29 October 2010, the Accused was admitted to the Mental Health Unit at Concord Hospital. The Accused presented with poverty of thought, somatic delusions and paranoia. There were reports that he suffered command hallucinations to do things, including “trivial” violence to himself and others. He reported to staff that “voices” asked him to hurt his brother.

41. In a report tendered to the Mental Health Review Tribunal, staff at the Concord Hospital stated that there was a “significant risk of violence, self‑harm and neglect of self if not adequately treated” and that the Accused had “partial insight but his judgment may be impaired by active psychosis”. The Accused was eventually discharged from Concord Hospital, but he continued to display persistent ongoing psychotic symptoms.

42. Between March 2006 and March 2014, the Accused was treated at the Associated Medical Centre in Campsie. In March 2015, the Accused was referred to a psychologist for psychological therapy for depression and psychosis.

43. The Accused’s last contact with a psychiatrist prior to his arrest was approximately two or three years ago. He was last seen by his GP on 12 July 2017, when he was given a prescription for Solian (Amisulpiride) an antipsychotic medication. At the time of the alleged offence, the Accused had taken Solian as blood tests showed, but was not sleeping well.

Expert opinion

44. Both Dr Furst and Professor Greenberg agree that the Accused meets the relevant criteria for a diagnosis of chronic schizophrenia. Both experts also state that, in their understanding of the law, schizophrenia is a “disease of the mind” relevant to the mental illness defence in s 38 of the Act. I agree with their legal characterisation of schizophrenia.

45. I am satisfied that schizophrenia is a mental illness within the meaning of that term in s 4 of the Mental Health Act 2007. It is a condition which seriously impairs the mental functioning of a person, and in the case of the Accused, was characterised by, at least, delusions and hallucinations.

46. Dr Furst describes the Accused’s hallucinations and delusions as “highly systemized, detailed and specific”. Dr Furst notes that at the time of the alleged offence, the Accused suffered an exacerbation of acute psychotic symptoms that were likely triggered by his discontinuing his medication and a lack of supervision.

47. During Dr Furst’s assessment, the Accused stated that on the day he stabbed Mr Petr, he heard the voices of various people. Those voices are described in some detail and include: “Steph” (a female police sergeant with blonde hair); “Junie”; and “Phuong” (a Vietnamese gangster with long hair).

48. The Accused told Dr Furst that the voices provoked him. When recounting his memory of leaving his house on the morning of the alleged offence, the Accused said:

“Satellites can flash images in my head. The same people. I had the knife, the kitchen knife from home… Phuong said ‘stab someone’. The satellites were provoking me. They bashed my brother in front of me. I was 14. He had cancer and was robbed. I heard the police in the satellites saying, ‘He’s not going to do it’.”

49. Those experiences, which the Accused describes in the quote above as having happened when he was 14, relate to a memory invented by the Accused of a home invasion in which his family were beaten and robbed. This incident was a product of the Accused’s paranoid delusions. Dr Furst is of the opinion that the Accused believes that the communications from the satellites relating to that experience are real.

50. What’s more, Dr Furst records that when he was interviewing the Accused about the events leading to the alleged crime, he was having ongoing auditory hallucinations and at one point interrupted Dr Furst and said “Can you hear satellites?...I can hear them the whole time”.

51. It is Dr Furst’s view that the Accused believes “he was justified in stabbing the victim, who was a stranger to him, as he was being instructed to do so by ‘Phuong’, a figment of his psychosis.”

52. Similarly, when Professor Greenberg asked the Accused why he stabbed the deceased, the Accused stated that he heard the three voices telling him that he had been assaulted as a child, his possessions stolen, and encouraging him to seek retaliation. The Accused stated, “They taunted me through satellites”.

53. At another point during Professor Greenberg’s assessment of the Accused, the Accused admitted to walking up to “someone” and stabbing them from behind. He claims he ran away from the scene because he was scared and knew he was “going to get into trouble”.

54. The account given to Dr Furst has obvious similarities with the account given to Professor Greenberg. I can detect no difference of substance.

55. Based on the expert opinions, I am satisfied on the balance of probabilities that the Accused suffered from a mental illness at the time he killed the deceased.

56. The next question is whether that mental illness was such that a special verdict should be returned.

Should a Special Verdict be Found?

57. Where an accused person is mentally ill at the time of an offence, a special verdict of not guilty may be returned. Section 38(1) of the Act provides:

“38 Special verdict

(1)   If, in an indictment ... an act ... 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 ... action at the time when the act was done ..., then, if it appears to the jury before which the person is tried that the person did the act ..., but was mentally ill at the time when the person did ... the same, the jury must return a special verdict that the Accused person is not guilty by reason of mental illness.”

58. The legal test for a special verdict is well established. An accused must establish, on the balance of probabilities, that they were mentally ill and “not responsible according to law” at the time of the offence: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659.

59. In substance, the Accused is required to prove that he was suffering from such a “defect of mind” so as not to know what he was doing or, alternatively, that he did not know that what he was doing was in fact wrong: R v M'Naughten (1843) 8 ER 718 at 722; R v Rodriguez [2010] NSWSC 198 at [33].

60. Applying those legal tests, it is necessary for the Accused to persuade me, on the balance of probabilities, that as a result of his disease of the mind (being schizophrenia) he was either unaware of the nature and quality of his actions in stabbing Mr Petr, or that he did not know the wrongfulness of that act.

58. Clearly, the Accused was aware of the nature and quality of his actions. There has been no suggestion from either side that the Accused was unaware of what he was doing. I am persuaded that the Accused intentionally and repeatedly stabbed Mr Petr.

59. The issue is whether the Accused knew that what he was doing was wrong.

60. The test to be applied in considering whether the Accused had knowledge of the wrongfulness of his actions was formulated by Dixon J in R v Porter [1933] HCA 1;(1933) 55 CLR 182 at 189-190:

“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 everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged."

64. Dixon J’s direction of how to reason whether an Accused “did not know what he was doing was wrong” in accordance with the M’Naughten rules has been followed in many cases:  Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson [1976] VR 470 at 477 per Young CJ, Starke and Nelson JJ.

65. Accordingly, the question for me is whether the Accused, having regard to the everyday standards of reasonable people, was incapable of reasoning about right and wrong at the time of the death of Mr Petr.

66. The experts differ in the way they express their opinion about this question. Professor Greenberg distinguishes between legal wrongfulness and moral wrongfulness. He is of the opinion that although the Accused knew that the act of stabbing Mr Petr was legally wrong, he did not know that the act was morally wrong. However, despite the Accused displaying some knowledge about his actions, Professor Greenberg is of the opinion that the Accused was not responsible for his actions in accordance with the test set out in M’Naughten.

67. Dr Furst makes no such distinction between legal and moral wrongfulness. He says:

“… it is more likely than not Mr Lee was unaware of the wrongfulness of his actions according to the ordinary standards of reasonable people in our community by virtue of his delusional beliefs and the hallucinations he was experiencing at time, both of which constitute a defect the reason in the M’Naughten sense. In my opinion, Mr Lee has the mental illness defence available to him.”

68. Both counsel for the Crown and for the Accused submit that I should accept the opinions of Professor Greenberg and Dr Furst, and that I should be satisfied in all circumstances that the Accused did not know that what he was doing was wrong.

69. Although the opinions of expert witnesses are not binding on me, I should not reject them where no party has tendered evidence to cast any doubt on those expert opinions: R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Michael Grove J.

70. I accept the expert psychiatric evidence before me and I am satisfied on the balance of probabilities that at the time the Accused killed Mr Petr, he did not know that what he was doing was wrong. I am satisfied that I should return a special verdict of not guilty by reason of mental illness.

Conclusion

71. I am well satisfied that it is inappropriate to release the Accused into the community, whether subject to conditions or not. Neither party submitted that, on the evidence, I should reach any different conclusion.

72. Both psychiatric experts expressed the opinion that the future treatment and supervision of the Accused was best left to the Mental Health Review Tribunal. I agree with those opinions.

Verdict

73. The verdict of the Court is that the Accused is not guilty of the offence of murder on the grounds of mental illness.

Orders

74. The orders of the Court, pursuant to s 39 of the Act are:

1. Order that Brian Lee be detained at the Metropolitan Reception and Remand Centre at Silverwater or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

2. Direct the Registrar of the Court to notify the Minister for Health of this judgment and order.

3. Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation:

1. a copy of these reasons for verdict and orders;

2. a transcript of these proceedings; and

3. a copy of each of the Exhibits tendered at the trial.

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Decision last updated: 20 May 2019