R v Buonomo

[2000] NSWSC 554

CITATION:	R v Buonomo [2000] NSWSC 554
FILE NUMBER(S):	SC 70010/99
HEARING DATE(S):	11/04/00
JUDGMENT DATE:	12 April 2000
PARTIES :	Regina David Buonomo
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr P Conlon - Crown Mr P Bolton - Accused
SOLICITORS:	SE O'Connor - Crown TA Murphy - Accused
DECISION:	Special verdict not guilty by reason of mental illness pursuant to S 38 of the Mental Health (Criminal Procedure) Act 1990; To be detained at the Long Bay Prison Hospital or at such other place as may from time to time be determined by the Minister for Health until released by due process of law

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

BELL J

Wednesday, 12 April, 2000

70010/99 - REGINA V DAVID BUONOMO

JUDGMENT

1 HER HONOUR: On Tuesday 11 April 2000 the accused, David Buonomo, was arraigned before me on an indictment charging him with the murder of Dominic Joseph Portelli of Bellambi on 20 October 1998. He pleaded that he was not guilty.
2 Pursuant to s16 of the Criminal Procedure Act 1986 the accused elected to be tried by a judge alone. I am satisfied that, before making this election, the accused sought and received advice in relation to the election from his counsel. The Director of Public Prosecutions consented to the election.
3 A number of statements contained in the police brief of evidence were tendered before me by consent. No issue has been raised but that the accused killed the deceased and that at the time he did so he intended to kill him. I am satisfied beyond reasonable doubt as to the proof of both of these ingredients of the crime of murder. The accused raises the defence that he was at the time of the offence mentally ill, so as not to be responsible, according to law, for his act.
4 Mr Bolton, who appears for the accused, and the Crown Prosecutor informed me that there is no issue concerning the accused’s fitness to plead.
5 The deceased was the proprietor of a mechanical workshop in Fairy Meadow. He was aged 40 years. He lived at unit 1/1 the Avenue, Bellambi. He was the father of two sons, Christopher and Matthew, who were living with their mother (from whom the deceased had separated a number of years earlier). Both sons maintained a close relationship with their father staying with him regularly on weekends.
6 The deceased had been involved in a longterm relationship with Ms Angie Biste who lived in a unit in Mangerton. The couple maintained separate households for the benefit of their respective children. Save for those occasions when the deceased had Matthew and Christopher staying it was his practice to call to his unit after work and from there to go to Ms Biste’s home. He would arrive in time for the evening meal.
7 On Tuesday 20 October 1998 Ms Biste became concerned when the deceased had not arrived at her home by 8:30pm. She telephoned his unit but there was no answer. Around 9:30pm she drove over to the deceased’s premises. She let herself into the unit and discovered his body. The scene was an horrific one. The deceased had been the subject of a vicious attack with a knife. His throat had been cut and he had suffered multiple stab wounds to his face, neck and chest. His body had been dragged to a position near a gas heater in the lounge room. It had been doused in aftershave scent and set alight causing burning to the skin and clothing.
8 The ambulance and police were summonsed and an investigation commenced. The kitchen window of the unit had been forced open. Fingerprints were found at the point of entry on the outside of the window and on various items that had been moved from the inside sill. Fingerprints were also found on the gas heater.
9 The deceased’s business, Dominic’s Auto Service Centre was a successful enterprise. The deceased was not in any financial difficulties. He enjoyed a harmonious domestic life and was a hard-working, well liked individual. There was no apparent motive for his savage killing.
10 The accused had worked for the deceased as an apprentice motor mechanic for a period of three and a half years. During the course of his employment he had injured his leg in a work accident when a car hoist collapsed while he was working under it. In the final year of his apprenticeship, the deceased found other employment for the accused with another local mechanical firm. The deceased had not been happy with the quality of the accused’s work performance. There was nothing concerning the circumstances of the work accident or the termination of the accused’s employment such as to give rise to any perception that the accused entertained a grudge against his former employer.
11 The police interviewed the accused on the evening of 21 October 1998 in the course of making routine inquiries of persons associated with the deceased. The accused denied that he had ever been inside the premises at 1/1 the Avenue, Bellambi. He was asked to attend the police station the following day to supply a set of finger prints for elimination purposes. At the time he showed no reluctance to do so. However, it appears that the request caused him some concern.
12 The following day, the accused visited Raffael Chiavernini an employee of the deceased. The accused and Mr Chiavernini were on friendly terms. The accused insisted that Mr Chiavernini take him to the deceased’s workshop stating that he wished to pick up some items that belonged to him. On entering the workshop the accused placed rags over his hands before touching anything. Mr Chiavernini saw the accused appear to wipe clean some tools with other rags. Generally, the accused’s behaviour in the workshop that afternoon was suspicious and somewhat bizarre. Mr Chiavernini immediately reported the incident to police.
13 Later that evening the police executed a search warrant at the accused’s home. During the search, police located a receipt for the purchase of an Excalibur brand hunting knife together with the box in which the knife had been packaged. The knife itself has not been recovered however Dr Bradhurst, the pathologist, considered that the knife wounds suffered by the deceased may have been caused by a knife similar to the Excalibur knife.
14 On 23 October 1998 the accused’s fingerprints were matched with the fingerprints located at the murder scene and he was subsequently arrested and charged with the murder.
15 Following his arrest the accused declined to be interviewed. While he was being charged the accused asked Detective Sergeant Mura a number of questions concerning whether the officer believed in the Bible, and in witchcraft and in “sacrificing to the Lord”. The accused became insistent about being given a bible. On receiving one he complained that it was not the right one and demanded that police obtain a copy of the New World Translation of the Holy Scriptures. I have not set out the whole of the account of the accused’s conversations and behaviour at the time of his arrest and subsequent charging. It is sufficient to note that Detective Sergeant Mura, the officer in charge of the investigation, became concerned as to the accused’s mental state.
16 Within days of the publicity surrounding the arrest of the accused two persons acquainted with him came forward (independently) to report to police concerns relating to the accused’s mental condition in the period leading up to the killing.
17 Ronald Fairweather had worked as a nursery manager for a garden centre in Fairy Meadow. The accused worked part time for Mr Fairweather for about one year prior to commencing his apprenticeship with the deceased. This was around 1987. The accused kept in contact with Mr Fairweather from time to time thereafter. About one month prior to the killing the accused visited Mr Fairweather saying that he would like to talk about something. He asked Mr Fairweather if he knew about people’s souls being stolen. Mr Fairweather noted that the accused appeared very serious throughout the course of this conversation. The accused’s concerns as reported by Mr Fairweather were bizarre. Among other things the accused complained that, following his work accident, his soul was being stolen. It was possible to drag it out of the broken bit. In the past when the accused had visited Mr Fairweather he had frequently been accompanied by a friend called Dean. On this occasion the accused was alone. He told Mr Fairweather that he was worried that Dean was involved with those who were stealing his soul. Mr Fairweather asked what would happen if people got hold of the accused’s soul. The accused explained that he would die and that the only way out of it was for him to kill those persons. He went on to explain that he had to kill the right person and not all the members of the group whom he perceived to be threatening him. He had to identify the leader and kill that person.
18 Mr Fairweather suggested that the accused should talk to the police. He also encouraged him to see a local priest, Father Canditto.
19 Remy Garato was an acquaintance of the accused. On occasions Mr Garato had lent the accused tools and equipment. Not long before the killing the accused had called to Mr Garato’s home asking to borrow his engine hoist. Mr Garato noticed that the accused looked dejected. The accused said to him, “someone is trying to put a spell on me”. Mr Garato told him not to be silly. The accused replied, “I’m possessed. Someone is trying to put a spell on me”. Mr Garato said that the accused appeared very paranoid and agitated. The accused complained that his health had been affected as the result of the spell placed on him. When the accused left Mr Garato’s home he appeared to be in a very agitated state. This was about two weeks before the killing.
20 The accused has been in custody since the date of his arrest on 23 October 1998. He has been interviewed by a number of psychiatrists while in prison. It appears that the accused was initially distrustful of the doctors and reluctant to cooperate with them.
21 Dr Hugh Jolly, psychiatrist, interviewed the accused at the Parklea Prison on 15 January 1999. In a report, dated 21 January 1999, Dr Jolly said that he was alerted to the possibility that the accused was suffering from a schizophrenic condition. However, his consultation did not permit him to form that conclusion. He considered that the accused may have been trying to hold back ‘crazy thoughts’ in an effort to appear sane. His determination in this latter regard was described by Dr Jolly as being almost psycho-pathological in itself.
22 It is to be noted that in a subsequent report dated 9 March 1999 Dr Jolly expressed the opinion that the accused was behaving like a man in the early stages of paranoid psychosis.
23 Dr Westmore gave evidence in the accused’s case. He first interviewed the accused at the Long Bay Prison Hospital on 21 July 1999. At that time the accused was maintaining that he had not killed the deceased. This was so notwithstanding that it appears he had earlier given a detailed account of the killing to his solicitor. That account had been made available to Dr Westmore to assist with his assessment of the accused.
24 Dr Westmore considered that it was likely that the accused was suffering from mental illness however since the accused denied any frank psychotic experiences he was not able to come to a concluded view on the matter.
25 In evidence Dr Westmore said that he was of the opinion that the accused had been feigning mental wellbeing at their initial meeting. This was not inconsistent with the accused suffering from paranoid schizophrenic illness at the time.
26 The accused was under the care of Dr O’Dea, psychiatrist, of the Corrections Health Service. In July 1999 Dr O’Dea arranged for the accused to be transferred to the Long Bay Prison Hospital. Thereafter, following consultation with Dr Nielssen, also of the Corrections Health Service, Dr O’Dea arranged for the accused to be made a forensic patient pursuant to the provisions of the Mental Health Act 1990. This permitted the accused to be placed on a regime of anti-psychotic medication.
27 I note that medical notes produced by the Corrections Health Service provide clear evidence that as at late 1999 those responsible for the accused’s treatment while he was in custody considered him to be suffering from a schizophrenic illness.
28 On 22 February 2000 Dr Westmore interviewed the accused for a second time. At this time the accused was taking anti-psychotic medication. He gave Dr Westmore a detailed account of the killing of the deceased. It is set out in Dr Westmore’s report of 24 February 2000. Dr Westmore asked the accused if he thought that he, the accused, had a mental illness. The accused said not. The accused said that he was aware that he had been diagnosed as schizophrenic and that he was taking medication for this condition. He did not like the effects of the medication on him.
29 In the course of his second consultation with the accused Dr Westmore found evidence of thought disorder. He concluded that the accused was subject to delusions of a persecutory nature and that he was suffering from a paranoid schizophrenic illness. That illness had been present at the time of the killing. It is a disease of the mind. Dr Westmore considered that it would have totally deprived the accused of his capacity to know that he ought not to do the act and that, in a moral sense, his actions were wrong.
30 The Director of Public Prosecutions arranged for Dr Olav Nielssen, forensic psychiatrist, to assess the accused. As I have noted Dr Nielssen is attached to the Corrections Health Service and had previously provided advice to Dr O’Dea concerning the accused. Dr Nielssen saw the accused at C Ward, the chronic psychiatric ward at the Long Bay prison hospital, on 20 March 2000. On this occasion Dr Nielssen was supplied with a number of statements contained in the police brief of evidence.
31 At the time when Dr Nielssen first saw the accused in October 1999 it was the accused’s account that he had not committed the offence. He denied experiencing symptoms of mental illness. Nevertheless Dr Nielssen suspected the presence of underlying mental illness.
32 When Dr Nielssen saw the accused again in March 2000 the accused had been receiving anti-psychotic medication for some time. On this occasion the accused told Dr Nielssen, “I believed that he [Dominic Portelli] had cursed me and that the only way to stop it was to kill him”. It was around March 1998 that the accused began to think that Mr Portelli had cursed him. He told Dr Nielssen, “He used a bit of my clothing as a scent to call an angel to strike me with the sword, so he could live off my flesh”. Among other things the accused told Dr Nielssen that the heavy rains and flooding in Wollongong in August 1998 signalled to him that he had been cursed. He read passages in the bible as confirming the curse.
33 The accused told Dr Nielssen that he had broken into Mr Portelli’s house and waited for him. He said that he had set fire to the body as “a sacrifice to God”.
34 The accused maintained his belief that he had been the victim of a curse but told Dr Nielssen that, “killing him was not the right way to deal with it”. He took up with Dr Nielssen the question of whether the latter knew of other people who had been cursed in the way that he had been.
35 In his report to the Director of Public Prosecutions, dated 28 March 2000, Dr Nielssen expressed the opinion that the deceased had become the subject of a bizarre delusional belief, held by the accused, which arose in the six months or so before the offence. The delusion was typical of a paranoid schizophrenic illness. The doctor considered that the accounts of a number of witnesses confirmed that signs of mental illness were present before the offence and at the time of the accused’s arrest. In Dr Nielssen’s opinion the accused’s demeanour and the way he described his symptoms were typical of acute mental illness. Dr Nielssen considered that it is very unlikely that the accused fabricated any aspect of his disorder. Rather, Dr Nielssen was of the view that the accused concealed his symptoms from his treating psychiatrists and from other psychiatrists who assessed him until after being made a forensic patient and being treated with anti-psychotic medication.
36 Dr Nielssen expressed the opinion that the accused was mentally ill at the time of the commission of the offence. He had a defect of reason in the form of the fixed false belief that the deceased had cursed him. The defect of reason arose from a disease of the mind namely paranoid schizophrenia. Dr Neilssen observed that the accused was not aware that the killing of Mr Portelli was wrong as he believed that the only way to free himself of the curse was to kill the deceased.
37 I now turn to the law concerning the defence of mental illness. The Crown has proved the elements of the offence of murder beyond reasonable doubt. The burden of proof is upon the accused to satisfy me on the balance of probability that he was mentally ill at the time that he killed the deceased. The law governing mental illness as it applies to criminal liability is as stated by Sir Owen Dixon in R v Porter (1933) 55 CLR 182. In his directions to the jury in that case His Honour said:
“The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground on which the law proceeds.”
38 In Porter his Honour went on to say that the state of mind of the accused must have been one of disease, disorder or disturbance arising from some infirmity, temporary or of long standing (pp188). It must have been of such a character as to prevent the accused from knowing the physical nature of the act he was doing or, alternatively, of knowing that what he was doing was wrong. It is the latter consideration which is relied upon in the present case. It was that second limb which was also relied upon in Porter. As Sir Owen Dixon explained to the jury:
“We are not dealing with right or wrong in the abstract. 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 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.” (pp189/90)
39 Dr Westmore and Dr Nielssen are both eminent forensic psychiatrists who have a great deal of experience in matters of this kind. They are both of the view that the accused was suffering from a disease of the mind at the time of the killing such that the he lacked the ability to know that his act was wrong in the sense of that term as explained in Porter.
40 It remains for me to consider whether in the light of the whole of the evidence, I accept that, on balance, the defence has been made good. The Crown has not, in the circumstances of this case and in the light of the uniformity of the medical opinion, sought to contend other than that I would so find.
41 I accept the opinions of Dr Westmore and Dr Nielssen. I consider that they find strong support in the evidence as to the behaviour of the accused in the weeks prior to the killing and following his arrest.
42 I am satisfied upon the balance of probabilities that the accused was at the time he killed Dominic Portelli suffering from paranoid schizophrenic illness and that this condition (being a disease of the mind) caused a defect in his ability to reason such that he did not understand that his act was wrong. It follows that I shall return a special verdict of not guilty by reason of mental illness in accordance with s 38 of the Mental health (Criminal Procedure) Act 1990 (“the Act”).
43 I have regard to the consequences of a special verdict of not guilty by reason of mental illness as I am required to do by s 37 of the Act. These are as set out in Chapter 5 of the Mental Health Act 1990. I note that the accused, in consequence of a finding that he is not guilty on the grounds of mental illness, will be detained in custody where his situation will be the subject of review by the Mental Health Review Tribunal. Mr Buonomo may not be released into the community unless the Tribunal is satisfied upon the evidence then available to it that his safety and the safety of any member of the public would not be seriously endangered.
44 It is necessary for me to make an order for Mr Buonomo’s detention pursuant to s 39 of the Act. I am informed that he is presently being held in the Long Bay Prison Hospital. It is appropriate that he remain there until the Minister for health determines otherwise.

ORDERS

1. Special verdict not guilty by reason of mental illness pursuant to s 38 of the Mental Health (Criminal Procedure) Act 1990 ,

2. David Buonomo is to be detained at the Long Bay Prison Hospital or at such other place as may from time to time be determined by the Minister for Health until released by due process of law.

Last Modified: 09/26/2000