R v Christos Tsekas

[2018] NSWDC 187

District Court

New South Wales

Medium Neutral Citation:	R v Christos Tsekas [2018] NSWDC 187
Hearing dates:	9–10 July 2018
Decision date:	13 July 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Not guilty by reason of mental illness. For orders see [48]
Catchwords:	Special hearing; wound with intent to murder
Legislation Cited:	Crimes Act 1900 Mental Health (Forensic Procedure) Act 1990
Cases Cited:	R v Istudor [2016] NSWDC 1 R v Minani [2005] NSWCCA 226 R v Porter (1933) HCA 1; (1933) 55 CLR 182
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Christos Tsekas (Accused)
Representation:	Counsel: M A Hawkins (Crown) S Fraser (Accused)
File Number(s):	16/286965
Publication restriction:	Nil

Judgment ON VERDICT on special hearing

1. The accused, born on 25 May 1944 and is now 74 years of age, was charged with the following:

1. On 25 September 2016 in Rockdale in the State of New South Wales, did wound Paul Raymond Jay with intent to murder the said Paul Raymond Jay.

2. The accused was further charged in the alternative:

1. (2)   That on 25 September 2016 at Rockdale in the State of New South Wales, did wound Paul Raymond Jay with intent to cause grievous bodily harm.

3. Count 1 on the Indictment was an offence pursuant to s 27 of the Crimes Act 1900. The alternative count is an offence pursuant to s 33 (1)(a) of the Crimes Act 1900.

4. On 17 October 2017 the accused was found unfit for trial by her Honour Judge Syme. He was then referred to the Mental Health Review Tribunal (“MHRT”) pursuant to s 14(1)(a) of the Mental Health (Forensic Procedure) Act 1990 (“MHFP”). On 18 December 2017 the MRHT determined that the accused was unfit to stand trial and was unlikely to become fit within the next 12 months, pursuant to s 16(1). The matter was then referred to the District Court for special hearing. As neither party elected to have the matter heard before a jury, pursuant to section 21A of the MHFP, the matter was set down for determination by judge alone. The special hearing took place on 9 and 10 July 2018.

The evidence

5. The Crown case was contained in Ex A, a special hearing bundle, which comprised witness statements, an ERISP DVD and transcript, crime scene photographs, together with various medical records and expert medical reports (Ex A1 to Ex A21). Senior Constable Spargo (nee Duncan) gave brief evidence, and through her the ERISP was played. She was not cross‑examined. The transcript of the ERISP became Ex B.

6. The evidence established that the accused had been diagnosed with a schizo-affective disorder and had multiple psychiatric admissions from 1973. He had been treated over the years with a range of anti-psychotic, mood stabilising and antidepressant medications. The accused had also suffered co-morbid cognitive impairment which was believed to be attributable to his long-standing psychiatric illness, rather than a progressive neuro-cognitive disorder.

7. On 29 March 2012, he moved into hostel care at Bruce Sharp Lodge in Rockdale, following a lengthy admission at the St George Mental Health Unit in 2011. He was re-admitted to the St George Mental Health Unit in 2014, following an episode of suicidal ideation and remained under the care of the Older Person's Mental Health Service following his discharge.

8. On two occasions since January 2013, he had surrendered a meat cleaver, knife and scissors to staff after reporting thoughts of self-harm. Seven weeks before the alleged offence, the offender was assessed by his treating psychiatrist and reported feeling well, although he was, at that time, preoccupied with a delusional thought process that dust was entering his room and was controlled by a switch in the facility.

9. At that time, he denied any thoughts that a specific resident or staff member was persecuting him in this way and denied any plans to harm others. However, in the six months leading up to the incident on 25 September 2016, the accused had been attributing blame to the victim for the dust in his room. The accused resided on the ground floor of the premises, whereas the victim was residing on the third floor. The victim had repeatedly denied touching the air-conditioning in the facility.

10. On the afternoon of 25 September 2016, the accused had approached the victim in a common area of the facility. No conversation took place. Later, they would both in the meal room for dinner, but not seated at the same table. There was no interaction between them.

11. At 7:30pm the accused went to the room of the victim and knocked on his door. As the door was unlatched, the accused pushed it forwards, entering the room of the victim and pushing him on the chest, causing him to fall on the bed. The accused then held the victim down with force, and then struck the victim with a meat cleaver on the left side of his neck. A struggle ensued, in which the accused struck the victim a number of times on the left-hand side of his neck, the back of his neck and the right side of the neck. The victim yelled, “Please stop, please stop, I'm sorry”, at which point the accused released the victim and left his room. The victim observed the accused to be holding a meat cleaver with a 15 to 20 cm blade and handle.

12. The victim left his room and yelled for help. A neighbour opened her door and saw him covered in blood and he said, “Christos did this to me, look what he did, he assaulted me”. The victim then made his way to the ground floor reception area via the lift to seek help. He left a trail of his own blood in his wake. Staff at the nursing home rendered first-aid and then called 000. Police and ambulance arrived and the victim was taken to hospital where he remained for three days.

13. While waiting for emergency services to arrive, the accused attended the foyer area where the supervisor, Mariela Garcia ,said to him “Christos what did you do?” The accused replied, “I told him I'm going to cut his neck because all the time he throws dust at me”.

14. When police arrived, before he was cautioned, the accused said to Plain Clothes Senior Constable Duncan, “I did it, I cut his throat, I put the knife to his throat and cut it”. He was then cautioned and said to the police officer, “I did it. I cut his throat”.

15. A police search of the accused’s unit located a knife in the bathroom sink. It was about 15cm long and the blade was rectangular. Police observed droplets of blood in the lift and droplets of blood leading to the victim's room. In that room they observed blood:

1. Smeared on the front door

2. Droplets in the bathroom

3. Blood spatter on the bathroom wall and mirror

4. Trail of blood on the carpet

5. Large red blood stains on the bed

6. Blood smeared and splattered on the wall.

16. The accused was arrested and taken to St George Police Station where he underwent an ERISP conducted by Plain Clothes Senior Constable Duncan and another police officer. He was supported by his daughter and an interpreter was present to assist him. During that interview he made numerous admissions including, “I did it I put the knife to his throat” and “I cut his throat”. He also said, “I was planning to, to cut his throat”.

17. The accused was asked:

“Q 123: Did you have the intention of cutting his throat all the way through?

A: I don't know.

Q 124: When you went to Paul's unit tonight, did you have the intention of cutting his throat all the way through?

A: I don't think so.”

18. The accused described the incident in the following terms:

“Q127: … the dust came on my head. I said ‘What's going on here? I will go to cut his throat’ Then I take the knife and I go upstairs to his room and I knock on his door, Paul open the door. And I push the door on him. And cut him from here, and I put the knife here somewhere.”

19. During his ERISP interview, the accused complained about dust in Bruce Sharp Lodge, and stated:

“Q167: …if he didn't, if they didn't drop the dust these things wouldn't have happened.”

20. The accused was seen to have blood on his watch, the cuffs of his shirt, sleeves of his jacket and the front of his jeans. He was found to have injuries to his neck and hands, being superficial cuts.

21. The victim was found to have the following injuries to his neck and hands:

1. Two superficial incised wounds to the right of his neck.

2. One incised wound with a 3 cm flap to the left side of his neck extending to the midline.

3. One incised wound, 2 to 3cm in length and 2cm in depth, located anterior to the sternocleidomastoid muscle on the left hand side of the neck.

4. Injury to a branch of the left superior thyroid artery.

22. In the expert opinion of the treating doctor, those wounds were consistent with the victim having been stabbed multiple times.

The defence case

23. The accused called no evidence, but relied on the psychiatric evidence in the Crown case and the expert medical opinions of two psychiatrists, which are referred to below. Counsel for the accused advocated that the appropriate finding for the court to make in the circumstances was that the accused was not guilty by reason of mental illness, pursuant to s 22(1)(b) of the MHFP.

The elements of the charges

24. The elements of the charge pursuant to s 27 of the Crimes Act 1900 of wounding with intent to murder are that:

1. The accused

2. with the intent to murder

3. wounded

4. the victim.

25. The elements of the alternative charge pursuant to section 33(1)(a) of the Crimes Act 1900 of wounding with intent to cause grievous bodily harm are:

1. The accused

2. wounded the victim

3. with intent to cause grievous bodily harm.

The Crown submissions

26. The Crown provided a detailed written outline of submissions. The Crown accepted that it bore the onus of proof beyond reasonable doubt of the four elements of the principal charge, and that the accused bore the onus of proof of the defence of not guilty by reason of mental illness on a balance of probabilities.

27. The Crown submitted that intention to kill could be inferred from the actions of the accused in the manner and location of the attack, the number of wounds inflicted on the victim, the weapon used and the forethought of the accused in how he would attack the victim. The Crown therefore submitted that the elements of Count 1 on the Indictment have been proved beyond reasonable doubt. If the Court did not accept that submission, the Crown submitted that the elements of the alternative count, of wound with intent to cause grievous bodily harm, were proved beyond reasonable doubt.

28. On the question of intention, the Crown referred to R v Minani [2005] NSWCCA 226 at [32], where Hunt AJA said as follows:

“32 Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused’s act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent.”

29. Under the heading “The Mental Health of Mr Tsekas”, the Crown summarised the opinions of the two psychiatrists, namely, Dr S Dayalan, (report dated 30 March 2018), and Dr Adam Martin (reports dated 13 June 2017 and 24 May 2018). Neither of the psychiatrists were cross-examined on their opinions. There was no real divergence of opinion between the psychiatrists. It was common ground that the accused suffered a schizo-affective disorder, with presentations of delusional beliefs, auditory hallucinations, disordered behaviour, irritability, agitation, depressive symptoms and suicidal ideations. He also suffered a dementing illness which had resulted in a decline of his cognitive function. Both experts agreed that he was suffering from a psychotic illness complicated by his dementia, and his ability to think rationally was significantly impaired.

30. Both opined that at the time of the offending, the accused suffered a disease of the mind causing a defect of his reasoning, and that he did not know the wrongfulness of his actions.

31. The Crown submitted that in the event of a finding on Count 1 of not guilty by reason of mental illness, the appropriate course was to dismiss the alternative charge on the Indictment.

The submissions on behalf of the accused

32. Counsel for the accused also relied on a thorough written outline of submissions. The sole issue in the matter was whether the accused is responsible for his actions, having regard to his mental state at the time, that is, whether the accused is not guilty by reason of mental illness.

33. Counsel also relied on the Court of Criminal Appeal’s judgment in R v Minami, supra. The test to be applied when determining whether a mental illness defence was available was formulated by Dixon J (as he then was) in R v Porter (1933) HCA 1; (1933) 55 CLR 182:

“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.”

34. Counsel then analysed the expert medical evidence, which had first been obtained on the question of the accused’s fitness to be tried. However, ultimately the opinions of both Dr Martin and Dr Dayalan were consistent in that both were of the view that the accused had available the defence of mental illness.

35. Following the hearing, counsel provided a supplementary written submission on the question of whether, in the event of a verdict of not guilty by reason of mental illness, in respect of Count 1, what order was to be made in relation to Count 2. Council submitted that a verdict of not guilty by reason of mental illness is to be distinguished from an acquittal represented by a not guilty verdict. “The verdict is a qualified verdict in that it represents a finding that the accused committed the acts that would establish the offence, but that he is not to be held responsible for those acts at law, due to the effects of his mental illness at the time of the offence”. The verdict is referred to in the MHFP as a “special verdict”

36. Council also referred to R v Istudor [2016] NSWDC 1, in which Judge Haesler dealt with a similar situation, namely, where the accused was charged with attempted murder, and in the alternative, with an offence of wounding with intent to cause grievous bodily harm. His Honour entered a verdict that the accused was not guilty of the charge of attempted murder by reason of mental illness. Orders were made in consequence of that finding and included the notation, “No verdict is required on Count 2”. It was submitted that the consequences of a special verdict are to be regarded as a finding that the offence in Count 1 is proved and therefore the court is not required to consider the alternative count.

Determination

37. Dr Brett Simpson, psychiatrist, provided a certificate of expert evidence in which he reported that Mr Tsekas had been under his care since June 2011, when he was admitted to St George Mental Health Unit for a period of five months.

38. He had been admitted with symptoms of lithium toxicity and delirium and his mental state had been deteriorating for several months, with delusional ideas concerning his wife. Upon his discharge, he was transferred to hostel care at Bruce Sharp Lodge in Rockdale. He remained under Dr Simpson's care until his arrest on 26 September 2016.

39. Dr Simson noted that Mr Tsekas had an established psychiatric diagnosis of Schizo-affective Disorder. He had first been treated for psychotic symptoms in May 1973 when he was aged 29 years. He had had multiple psychiatric admissions since his initial diagnosis and had been treated with a range of anti-psychotic, mood stabilising and anti-depressant medications.

40. Dr Simpson also reported that Mr Tsekas has a co-morbid cognitive impairment. Neuropsychological assessments performed in 2013 and 2015 demonstrated a mild to moderate level of cognitive dysfunction across the fronto‑subcortical and temporal lobe systems.

41. During a five-year period of treatment Mr Tsekas experienced intermittent psychotic symptoms despite compliance with a range of different anti‑psychotic medications. He had a further brief psychiatric admission in August 2014 when he expressed suicidal ideation. Dr Simpson reported that typically, during exacerbations of his illness he would report possible persecution by unspecified persons and likely auditory hallucinations. Further, over a three-year period prior to the alleged offence, Mr Tsekas became increasingly preoccupied with dust in his room at the hostel and moved rooms on several occasions because of this concern. When last assessed on 5 August 2016, he was still preoccupied with dust and reported a theory that the dust was controlled by a switch in the facility. He described having warned another resident not to touch this switch, although he denied any thoughts that a specific resident or staff member was persecuting him, or that he had plans to harm others.

42. Mr Tsekas was examined by Dr Susan Pullman, neuropsychologist and Dr Adam Martin for the purpose of providing expert opinions on his fitness to stand trial. Leaving aside their opinions on that question, Dr Martin further opined:

“It appears highly likely that the alleged violent behaviour occurred as a direct consequence of delusions and hallucinations. It would appear likely that he had knowledge of the legal wrongfulness of his actions, judging from his responses around the time and admissions to the police, but it seems likely to me that his capacity to act rationally was significantly and detrimentally affected by his mental illness.”

43. Dr S Dayalan, in a report dated 30 March 2018, was qualified on behalf of the accused to provide an opinion on whether he had a mental illness defence available to him. He opined as follows:

“At the time of the offence, Mr Tsekas had a defect of reasoning in that he was experiencing delusional beliefs. The delusional beliefs were symptoms of Schizo-affective Disorder which is a disease of the mind.

Mr Tsekas had taken a meat cleaver to the victim's room with an intent to hurt him. The description of his behaviour at the time of the offence suggests that he did know the nature and quality of his act. Mr Tsekas had been concerned about the impact of the dust on his health. He had been convinced that the victim was causing the dust to come into his room. It is noted that Mr Tsekas had complained about the dust for a few years to a number of different people, but in his opinion, his concerns had been ignored. He had decided to harm the victim as he had believed doing so would stop the dust coming into his room.

Mr Tsekas had been suffering from a psychotic illness complicated by dementia at the time of the offence. His ability to think in a rational manner is likely to have been significantly impaired. He had been distressed by his psychotic symptoms and his behaviour at the time of the offence was his attempt to mitigate the distress secondary to his delusional beliefs. It would be reasonable to state that Mr Tsekas did not know the wrongfulness of his actions resulting in the offence.”

44. In a further report dated 24 May 2018 to the Director of Public Prosecutions, Dr Martin responded to the report of Dr Dayalan. He elected not to re-examine Mr Tsekas given the findings from his first assessment. In answer to a question as to whether the accused was suffering from a mental illness at the time of the offence he opined as follows:

“In my opinion Mr Tsekas was certainly suffering from a mental illness at the time of the alleged offending. There is consistent reporting from him and from others, of him expressing delusional beliefs about dust coming into his room, causing distress and this appears to have been closely associated with the alleged violent offending. His mental illness would be considered to be severe, for the reasons noted above. That is, Schizo-affective disorder is considered a major mental illness associated with significant disability and is characterised by a person being prone to being out of touch with reality and being liable to disorganised, illogical and irrational behaviour in association with impaired reality testing. It is frequently associated with poor insight into having an illness.”

45. Dr Martin went on to opine that the alleged violent behaviour appeared intentional and goal-directed, namely, to deter the victim from causing dust to come into his room. In his view, there was no evidence to suggest that Mr Tsekas lacked the capacity to form specific intent to wound a person with intent to murder, however, he agreed with all of the conclusions and opinions of Dr Dayalan. He concluded that the accused has a serious mental illness which would be seen as a disease of the mind causing a defect of reason.The alleged offending occurred as a direct result of those delusional beliefs.

46. Applying the test in R v Minani, supra, I find that it was the act of the accused which caused the wounding of the victim, however, by reason of his mental illness, Mr Tsekas was not criminally responsible for doing that act.

47. I accept the expert opinion of both Dr Dayalan and Dr Martin, that at the time of the offending, the accused was suffering from a defect of reason directly related to his mental illness. That mental illness had been diagnosed as a schizo-affective disorder with a history of presentations characterised by delusional beliefs, together with a dementing illness. I accept the opinion of Dr Dayalan that at the time of the offending the accused did not know the nature and quality of his act. I am satisfied on the balance of probabilities that the accused did not know the wrongfulness of what he was doing at the time of the offence. I therefore find that the appropriate verdict pursuant to s 22 of the MHFP, should be not guilty by reason of mental illness. I accept the submission made by counsel for the accused, in conformity with R v Istudor, supra, that in those circumstances, no verdict is required in respect of the Alternative Count 2.

Orders

48. I make the following orders:

1. In accordance with s 38 of the Mental (Forensic Provisions) Act 1990, I find the accused not guilty of the charge of wound with intent to murder on the grounds of mental illness.

2. In accordance with s 39(1) of the Act, I order that Christos Tsekas be detained in Long Bay Prison Hospital, 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.

3. I direct that, as soon as possible, the Registrar notify the Minister for Health of this order.

4. I further direct that, as soon as practicable, the Registrar notify the Mental Health Review Tribunal of this order and provide to the Tribunal the following documentation:

1. A copy of these reasons for verdict and orders.

2. The exhibits at the special hearing.

5. No verdict is required on the alternative charge of wounding with intent to cause grievous bodily harm.

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Decision last updated: 13 July 2018