R v Elturk
[2012] NSWDC 275
•05 June 2012
District Court
New South Wales
Medium Neutral Citation: R v Elturk [2012] NSWDC 275 Hearing dates: 4 June 2012 Decision date: 05 June 2012 Before: Nicholson SC DCJ Decision: The application of the prosecution is rejected.
Catchwords: CRIMINAL LAW - Application to vacate pleas of guilty - Prosecution application upon proper verdict is not guilty by reason of mental illness - Strong evidence of mental illness - Test whether plea an informed plea Cases Cited: R v Murphy [1965] VR 187 at 191.
Damic v R [1982] 2 NSWLR 750
R v Falconer (1990) 171 CLR 30).
Ming Yuk Wong v DPP NSWSC 129
R v Sagiv (1986) 22 ACrimR 73
Maxwell v R (1995) 184 CLR 501
R v Anderson [1981] VR 155
Meissner v R (1994-5) 184 CLR 132Category: Principal judgment Parties: The Crown
John ElturkRepresentation: Director of Public Prosecutions
File Number(s): 2011/1234
Judgment
John Elturk was committed for trial upon three charges, namely that on 3 January 2011 at West Hoxton in the State of New South Wales, he did steal a knife, the property of Woolworths Limited; then that on 3 January 2011 at Hoxton Park in the State of New South Wales did wound Sohail Elturk with intent to murder the said Sohail Elturk; and finally, at the same time and place, he did wound Sohail Elturk with an intent to cause grievous bodily harm.
Those charges were placed upon an indictment and pleas of guilty were entered to counts 1 and 3, and accepted by the Crown in full satisfaction of the indictment.
On 4 June, that is, yesterday, Mr Elturk was before me for sentence. Then a most unusual application was made by the Crown. When I say unusual, I do not mean that I am critical of it, but the application was one that I would reject the guilty plea and require Mr Elturk to stand his trial, on the basis that a more appropriate outcome for this litigation would be a verdict of not guilty by reason of mental illness.
The application was opposed by the defence, who sought to proceed upon the pleas of guilty.
The facts alleged by the Crown are set out in the would-be Crown brief on sentence. I will refer to them in a moment. It is fair to say the defence do not dispute these allegations.
ALLEGED FACTS
I will start at paragraph 4.
On 3 January 2011, at approximately 12.30pm, the offender attended the Big W store at Hoxton Park and stole a chef's knife from that store. He went from there to the family home at Hoxton Park, arriving at approximately 1.30pm, with the knife. At the time, the victim, namely, the offender's father, was in the living room of the house, sitting on a single seater lounge chair, watching a DVD. Two other persons were also seated nearby, watching the same DVD.
The offender approached from behind and placed a hand on the victim's forehead and tilted his head back. The victim was not unfamiliar with that action and thought it was his wife about to kiss him. He looked down and saw something shiny. The offender then ran a blade across the victim's neck from right to left, causing a wound, commencing from the middle of the throat to a point near the right ear.
The victim looked down and saw blood on the knife. He then got up from the chair and saw the offender standing with a knife in his right hand. The victim noted that the offender looked like he was in a trance, with an emotionless and expressionless face. The victim asked the offender, "Why did you do that?" to which the offender replied, "I had to do that. You are the devil." The victim again asked, "Why did you do that? What's happened to you? Did anyone hurt you?" The offender again stated, "You are the devil. I had to do that."
What prompted the prosecution application, as best I can tell, was the record of interview given by the accused on the day of the knife attack, and a psychiatric report from Dr Nielssen dated 30 May, served on the prosecution by the defence. No doubt that has been done as a pre-requisite of its being tendered by the defence on sentence.
Relevantly from the record of interview are the following passages.
Question and answer 35, which is a very long answer, and I certainly do not intend to quote it all, but rather to give some flavour of it.
The question was in these terms:
"Q. Can you tell me about what happened today? Just take your time.
A. All, all of my life I've had, I wake up in the morning and feeling like, really like, I do anything wrong all my life, you know, and, but I feel really sick, you know, like totally tortured with, like in pounding, like a feelings, you know what I mean, like...cruelties and things, you know, from when I was young, and I, and I never, I never actually go to the toilet, it was very strange, you know, like I, I like, the only time I went to the toilet is if I had breakfast, and when I was at the...the Tyringham house, I, I, for three, for three months, I locked my doors and windows and everything, and put screws in the windows and everything, and I actually..."
The rest of that answer is equally bizarre and unfocused.
Question and answer 40 - the question, in effect, that he was asked was:
"Q. What happened when you went to your father's place today?
A. Yeah, yeah, when I went there today, I just went to protect myself, like when, when, when he, when, when, when I was at the, the, the church, something, you know, the power, the powerful, this name what, you know, devil name, I don't want to say, 'cause it's not nice to say, but--
Q. It's okay, you can say it.
A. I don't want to say it, you know, but whatever they're putting in me, you know what I mean, I was at the church, you know, 'cause I always used to go to church all the time, but they, I want to go home...in me, you know what I mean, 'cause of what they were doing to me in my sleep, and I, I just went sick, you know, trying...it's like pure evil, this thing, you know what I mean, and it's like...such a sickness in me, I, I, I, when I did this, I become safe from it. Not safe, but it didn't affect me as bad, you know what I mean, 'cause God had mercy for me to...protect me from 'em, and then...today...whatever...this person is, you know, in the, in the 'cause the, when I was in that room and he was doing that to me in my sleep after three days, I, I, I couldn't control myself, like, I've always been able to control myself,"
and so on, again fairly disconnected.
The Crown Prosecutor drew to my attention ten other sites in the record of interview that were particularly focused on events that had occurred within the accused's father's home, where the answers indicated bizarre thinking.
In respect of those answer 241:
"I said to him [the father] I said, 'You're a devil, you know,' this is really, you know what I mean, I had to confront it, you know, and then I realised, well, maybe somehow I can get someone to help me. I know, I don't know, like, if you're physically connected to, you know, you know what I mean, I've got, like, I've got a good closeness to the Holy Spirit and everything, but it was...these are filthy, like, abominable people, you know what I mean? You should see 'em, you know."
And the answer to 253:
"I honestly, I honestly conformed, 'cause I just want everything nice that dad, to see if he's all right. He, he, he's [the father] you know, maybe I can get a peaceful resolve, then when I finally, when I really, really confirmed that I, I'll find a peaceful resolve, all of a sudden, everyone jumped in, jumped in everything, and all of these policemen jumped on me, so really I think it's some sort of about faith, faith, you know, cleansing, you know, like I've got, like I got, I got to get rid of him or something, I don't know what to do, you know. They're scary, you know."
The report of Dr Nielssen, which was the second item that, as I said, contributed to the Crown seeking to have the plea rejected, makes the following observation. This is the first report, 30 May 2012:
"Mr Elturk said that the offence occurred during an exacerbation of mental illness that had developed over a period of several months, that had become especially severe in the week before the offence. However, he said that he did not want to enter a plea of not guilty to mental illness because he said, 'I don't want to be caught for six or seven years in the forensic system'...
He said that he was unable to sleep for four nights, and on the night before the offence, stayed at the nearby Mercure Hotel because he was afraid to be in his flat. He said that shortly before the offence he had been standing in the middle of a sports field screaming, and said, 'I was trying to push away the entities that had entered my system'. He confirmed that the next day he ['bought'] a knife at a supermarket, went to his father's house and attacked him with a knife, cutting the skin of his neck. He said he could not remember if any words were exchanged, but agreed he might have called his father the devil. He said that it was not a penetrating injury and that his father recovered.
Mr Elturk said that, 'Around that time I was in a psychosis...supernatural things were happening...I had some powerful delusions...I felt I could communicate with people spiritually...there was a lot of supernatural activity in my life...the Lord's name had a powerful impact on me...I felt confused about my father...I went to the Liverpool Hospital afterwards because I was so scared...I was on my way to the police when they arrested me.'
He said that, 'At the time [of the offence] there was a powerful cruelty on me...I was under the impression I had to do it...I submitted to that...I didn't want to do it...I didn't press [on the knife while cutting]...I didn't want to kill my father.' He said that he loved his father and was conscious not to press too hard, and said, 'I just did it to get relief from my situation'. He said that at the time of the offence itself he felt as though that time had slowed right down and that 'everything was moving in slow motion'."
Dr Nielssen reviewed the psychiatric history of the accused, which was extensive since the age of nineteen. At the time of the attack, the accused was aged thirty-seven, I think. The family at one stage had moved to Perth and later returned to Sydney. There was an incident of self-injury which Dr Nielssen noted.
"The medical records from Joondalup Campus noted that Mr Elturk was admitted to the psychiatric ward of the hospital on 9/2/10 as an involuntary patient after self-cutting both cubital fossae to 'release the evil spirits'. He was described as having 'limited insight'. The episode of illness was reported to have been triggered by cessation of medication. He is reported to have experienced hallucination of voices and to have believed that his family were 'evil'..."
Having made a diagnosis of schizo-affective disorder, Dr Nielssen expressed his opinion thus:
"The diagnosis of schizo-affective disorder, or a relapsing psychotic illness with features of both schizophrenia and bipolar disorder, is made on the basis of the history of symptoms of schizophrenia-like psychosis, as well as periods of both elevated and depressed mood when free of symptoms of psychosis...
The contemporaneous documents, including the various witness statements, and Mr Elturk's answers in the ERISP, confirm that he was acutely mentally ill at the time of the offence, and that he committed the offence in response to symptoms of mental illness rather than for any rational or malicious reason. Hence I believe he would have the defence of mental illness open to him."
Significantly, however, Dr Nielssen was also of opinion:
"In my experience, a special verdict is beneficial to both the accused and the community, because the rehabilitation through the forensic hospital system is so successful, and the rate of re-offending of forensic patients granted conditional or unconditional release is very low.
Mr Elturk has an illness that responds to treatment, does not have a pattern of antisocial conduct or a drug abuse disorder, and he would be expected to progress to a lower security hospital with leave and privileges reasonably soon.
However, Mr Elturk was assessed to be able to understand legal advice and to be fit to plead to the charge..."
Finally, in respect of the father's statement that was relied upon by Dr Nielssen, both as to the history it gives and as to the accused's demeanour at the time of the stabbing incident, immediately after the serrated edge knife was drawn across his neck, the father stood up and said to his son words set out in the recitation of facts earlier referred to.
"When I was talking to John, his face was plain, like he was in a trance. There was no emotion on his face, no expression, his eyes looked vacant, he didn't even blink."
The only slice of evidence that could indicate any real knowledge of what he was doing and a capacity to reason with appropriate foresight was a threat, "I am going to kill you one day, you son of a bitch", made about four weeks prior to the knife incident, the subject of the plea.
None of the evidence that I have referred to, over and above the facts, is contested by the offender.
The evidence appears both overwhelming and uncontested that the offender attacked his father in the course of a severe psychotic episode, where a McNaghten defence was available to him. Simply put, it is inconceivable that a tribunal of fact in the District Court, however constituted, would find other than this accused not guilty by reason of mental illness.
The question for this Court is whether any jurisdiction to refuse to accept the plea of guilty exists when an accused does not seek to traverse his plea, and if so, whether the Crown's application should be accepted.
The prosecution relies upon a capacity of the Crown to raise a defence of not guilty by reason of mental illness in a trial where the defence decline or refuse to reason (see Damic v R [1982] 2 NSWLR 750 and R v Falconer (1990) 171 CLR 30).
The Crown argued the same situation applies where there is a plea of guilty. The thrust of his argument was that to permit the plea to advance to a hearing and conviction and imposition of sentence was, as I understand it, a miscarriage of justice. The Crown case is there is an implied power in this Court to take such steps as are necessary to ensure justice is properly administered.
The defence case ultimately became one of arguing that the power to vacate the plea is dependent upon the threshold issue of an accused's application to traverse his plea. Absent such an application, there is no room for the Court to vacate a plea of its own volition, or upon the urging of the prosecution.
In the course of considering this matter, I have been attracted to what at first blush appears to be the underlying principles that ought to apply, whether the plea has been traversed or not. They are set out in Wong's case (see Ming Yuk Wong v DPP NSWSC 129).
In that case, Howie J collected many of the authorities. Significantly, for my purposes, are the following.
From all of the points distilled by his Honour, including the three I have referred to, his Honour drew this proposition:
"[16] The authorities referred to in the above passage show that the issue is one of the integrity of the plea of guilty and the question to be determined is whether a miscarriage of justice would arise if the Court acted upon the plea of guilty to convict and sentence the defendant..."
Of course, in all of the cases his Honour looked at, with the exception perhaps of Maxwell, the rationale for changing the plea was to seek a total acquittal. In this case, as the accused readily concedes, his option is not to seek an acquittal, but rather, the special verdict, with all its "forensic" consequences (see R v Anderson [1981] VR 155).
Exercising my mind are those "forensic consequences". On the one hand, the accused sees them as "six or seven years in the forensic system"; on the other hand, Dr Nielssen sees it thus:
"In my experience, a special verdict is beneficial to both the accused and the community, because the rehabilitation through the forensic hospital system is so successful, and the rate of re-offending of forensic patients granted conditional or unconditional release is very low.
Mr Elturk has an illness that responds to treatment, does not have a pattern of antisocial conduct or a drug abuse disorder, and he would be expected to progress to a lower security hospital with leave and privileges reasonably soon."
To vacate the plea of guilty and enter one of not guilty, in the light of the evidence I have seen, would virtually guarantee the accused the benefits as Dr Nielssen has described, and that the penal system cannot offer.
I have contemplated whether the plea entered by the accused is an informed plea. If so, it is informed by his desire to avoid six or seven years in the forensic system, in circumstances where the evidence establishes he has limited insight into the nature of his mental illness, and limited ability to recognise his symptoms when they emerge.
There is a third concern. I have assumed he has been advised by his legal advisers that the offence he pleaded to is serious, and will, on a plea of guilty, still result in his incarceration for a substantial period. While I have not determined the appropriate sentence, I am concerned his decision based on avoiding six or seven years in the forensic system ignores the seriousness of his offending, the maximum sentence available and the sentencing range that is likely to apply.
The offender is represented by counsel. I am informed, and accept, that he has been advised of the defence open to him. During the application before me, his counsel has fought hard to be permitted to advance the plea to a conviction. During argument, the accused has sought to reinforce his instructions to counsel on two or three occasions.
This application by the Crown has had the effect of highlighting for the accused the ramifications of his decision. I must accept Dr Nielssen's opinion that he is fit to plead and all that implies.
The case law does make it clear that a court has power to reject a plea of guilty if the plea constitutes an abuse of process or if it is in the interests of justice so to do (R v Maxwell). Even the minority in that case, (Dawson and McHugh) approved an earlier NSWCCA decision that, in an appropriate case, the Court may need to give effect to its own right to address an abuse of its process. However, the minority went on to say:
"The need for a court to exercise its inherent power to protect its own process should, in this context, rarely, if ever, be used."
While I am satisfied I have the power to reject the plea, the troubling issue is whether I should exercise it in this case.
The resolution of that depends upon whether the guilty plea represents an abuse of process. The resolution of the abuse of process issue depends upon whether, in the circumstances of this case, the offender is accepting full criminal responsibility for his acts on 3 January 2011, amounts to, or would cause a miscarriage of justice.
Let there be no doubt, I disagree profoundly with the accused's decision to enter a plea of guilty and his apparent reason for so doing.
I have, nonetheless, come to a view that the plea is entered on the basis that it is to be accepted as a true admission of guilt. That is not the same question as, is he truly guilty.
Being satisfied that the plea is so entered, that the accused is fit to plead, and that he has received appropriate advice from an experienced barrister, I have determined to allow the plea to stand.
I am fortified in that decision by the remarks in Meissner v R (1994-5) 184 CLR 132. In a joint judgment of Brennan, Toohey and McHugh JJ, their Honours said:
"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice, in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."
I note that the interests of the person in entering the plea were expressed by him as not spending six or seven years in forensic.
In the same case, Dawson J observed:
"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons, for example, to avoid worry, inconvenience or expense, to avoid publicity, to protect his family or friends, or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all of the elements of the offence, and a conviction entered upon the basis of such plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred."
While it is true that the plea may be entered to avoid worry, inconvenience, expense or publicity, or to protect family or friends, or for the reason given in this Court, the fact that those reasons may be found to be unsound at the end of the day does not avoid the effect of the plea. The Court must still act upon it. Nor, it would seem to me, would it give to an offender any basis for complaining at a later point in time about a plea so entered.
The application of the prosecution is rejected.
It is clear I cannot proceed with this plea today, and in one sense, I am not inclined to, because I want to give to the Crown an opportunity to consider its position, because it is not a decision I have come to easily, to see whether, in the light of further reflection, the Crown wants to pursue this matter further.
The accused is not going to be disadvantaged by that, other than the appeal, because "he ain't going anywhere soon".
I will set the matter down in the meantime as though it is to be advanced, and if anything further happens, no doubt the Crown will notify you, Mr Brassil, and me.
DISCUSSION AS TO SUITABLE DATE
HIS HONOUR: I will issue a warrant for the Sydney - where is the offender being held?
BRASSIL: At Long Bay at the moment, your Honour, in the prison hospital.
HIS HONOUR: For the Sydney District Court. I will make enquiries, or my associate will make enquiries with whether we can get a court in Sydney, and we will let you know.
BRASSIL: Your Honour, might my solicitor have liberty to forward to the Probation and Parole Officer who prepared the report that was tendered on the voir dire, to forward the second draft of Dr Nielssen's psychiatric report. The officer who prepared the pre-sentence report comments that he would be assisted in considering the matter by viewing the psychiatrist's report, and if your Honour ordered that an updated report be prepared--
HIS HONOUR: I will order an updated report and I will require that the defence make available to the relevant Probation and Parole Officer a copy of the report prepared by Dr Nielssen. And you say it's the second one, the revised report.
BRASSIL: Yes your Honour.
STOOD OVER TO FRIDAY 6 JULY 2012 IN SYDNEY
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Decision last updated: 03 April 2013