R v Fili

[2010] NSWSC 712

CITATION:	R v Fili [2010] NSWSC 712 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 June 2010
JUDGMENT DATE :	2 July 2010
JUDGMENT OF:	R A Hulme J
DECISION:	Not guilty by reason of mental illness.
CATCHWORDS:	CRIMINAL LAW - particular offences - offences against the person - homicide - murder - act of stabbing by accused caused death of uncle - intention to cause grievous bodily harm - CRIMINAL LAW - general matters - criminal liability and capacity - defence matters - insanity and mental impairment - disease of the mind, mental disease or mental infirmity - accused suffering from schizophrenia - acted in response to auditory hallucinations - CRIMINAL LAW - procedure - trial had before judge without jury - election by accused - consent by prosecutor
LEGISLATION CITED:	Criminal Procedure Act 1986
CATEGORY:	Principal judgment
CASES CITED:	Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v M'Naghten (1843) 8 ER 718 R v Porter [1933] HCA 1; 55 CLR 182
PARTIES:	Regina Amer FILI
FILE NUMBER(S):	SC 2009/193889
COUNSEL:	Ms M Cunneen SC (Regina) Mr J Stratton SC (Accused)
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid New South Wales

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

R A Hulme J

2 July 2010

2009/193889 Regina v Amer FILI

JUDGMENT

1 HIS HONOUR: The accused was arraigned before me on Monday of this week upon an indictment containing a single count, being that on 27 August 2009 at Merrylands he did murder Hassan Khaledi. To that charge the accused pleaded that he was not guilty on the grounds of mental illness.

2 The accused had previously, that is on 16 June 2010, filed an election pursuant to s 132 Criminal Procedure Act 1986 to be tried by judge alone. I am satisfied that he made this election after having received advice from his lawyers.

3 The Crown case was presented by way of the tender of a number of documents without objection. The defence case comprised the tender of a psychiatric report, also without objection. No oral evidence was adduced.

4 The charge of murder may be established by the Crown proving, in the circumstances of this case, that it was an act of the accused that caused the death of the deceased and that such act was done with reckless indifference to human life, or with an intent to kill or inflict grievous bodily harm upon the deceased. It is necessary for the Crown to prove this to the standard of beyond reasonable doubt.

5 To establish the offence the Crown relies upon the following events about which there is no dispute. The accused, together with his 14 year old brother, lived with his maternal uncle in a home unit in Manchester Street, Merrylands. They were all at home on the evening of 27 August 2009. At around 10pm the deceased and the accused’s brother were sitting together on a lounge in the lounge room. The accused approached from behind with a knife and stabbed the deceased in the left side of the neck. The deceased immediately stood up and ran across the room with blood streaming from the wound in his neck. At the time of the stabbing the accused had yelled at the deceased, “Is my father not good?”. He repeated the same words a number of times.

6 The brother took hold of the accused out of fear that he might stab the deceased again. As he restrained the accused the deceased ran toward the front door of the unit. Blood continued to stream from the wound in his neck. The accused again yelled, “Is my father not good?”.

7 The deceased ran out of the unit and down a flight of stairs to the car parking area of the unit complex where he collapsed. The accused followed and as he approached the deceased he continued to yell out at him, threatening to kill him because of deprecating remarks he perceived the deceased to have made about his father.

8 The deceased called out to neighbours for help. Some of the neighbours became involved in urging the accused not to further harm the deceased while others rang triple 0. The accused, nevertheless, approached the deceased and stabbed him three times in the back and once to the right flank. The deceased collapsed to the ground.

9 The accused returned to the unit and rang triple 0 himself. At the commencement of the call he said, “I nearly just killed my uncle because I want, I think he wants to hurt my dad and that’s why I want you to come here”.

10 Police arrived a short time later. The accused approached them and admitted that he had stabbed the deceased and urged police to arrest him. He was indeed arrested and was later taken to Merrylands Police Station.

11 Ambulance officers attended and attempted to provide assistance to the deceased before taking him to Westmead Hospital where life was pronounced extinct. A subsequent autopsy was performed by Dr I. G. Brouwer, forensic pathologist. He identified five stabs wounds. The fatal wound involved a penetration of the left side of the neck with associated damage to underlying large blood vessels. This entailed the complete severance of the left external carotid artery and an incised wound to the left internal jugular vein. The direct cause of death was determined to be hypovolaemic shock induced by vascular damage associated with the stab wound to the left side of the neck. The other four stab wounds to the back and abdomen were described as non-fatal.

12 During the course of the crime scene examination a steak knife with a bent handle and a 12cm blade with blood on it was found on the kitchen bench. This seems likely to have been the murder weapon.

13 The accused participated in an interview and reiterated the admission made at the scene that he had stabbed the deceased. He set out in substantial detail the circumstances in which the offence had occurred. He said that he had stabbed the deceased because of deprecating remarks he had made in relation to the accused’s father and also because he feared that the deceased was intending to sexually assault his father. He also told police that he suffered from schizophrenia and set out details of the treatment and history of admissions that he had to various mental health facilities.

14 On these undisputed facts I am satisfied beyond reasonable doubt that it was the accused’s act in stabbing the deceased to the neck that was the cause of death and that it was accompanied by at least an intention to cause grievous bodily harm. A stabbing to the neck would normally be indicative of an intention to kill but with the accused’s disordered thinking, I have a reasonable doubt about it in the circumstances of this case. I should also record however, that the accused was almost immediately regretful of what he had done. He told the police that he wished he was dead and his uncle was alive.

15 As indicated by his plea, the accused has raised the issue of whether he should be found not guilty by reason of mental illness. The accused relies in this respect upon the assessment made by Dr Olav Nielssen, psychiatrist, which is set out in his report of 26 October 2009. The Crown has provided two reports by Dr Rosalie Wilcox, psychiatrist, dated 5 February 2010 and 2 May 2010.

16 Both psychiatrists determined that the accused suffers from chronic schizophrenia and that at the time that he killed the deceased he was mentally ill. This requires a consideration as to whether, at the time of the killing, the accused was labouring under a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing, or that if he did know, that he did not know what he was doing was wrong: R v M’Naghten (1843) 8 ER 718 and R v Porter [1933] HCA 1; 55 CLR 182. The onus of proof in respect of this issue is upon the accused and the standard of proof is the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659.

17 The histories provided by the accused to the police and to Dr Wilcox and Dr Nielssen are substantially consistent.

18 He was born in Iran and was the eldest of six children. His parents had spent some time in Iraq but were deported back to Iran. They were refused citizenship in both countries and as a result they were stateless and were placed in a detention centre.

19 The accused’s father came to Australia in 1999. The accused came via a boat from Indonesia in 2002. He was detained at the Woomera Detention centre for eight months after which he resided with his father and the deceased in Liverpool.

20 In the year 2000, came the first of three apparent suicide attempts. In this instance he took an overdose of sleeping tablets when his mother would not let him marry a girl of Persian descent in Iran at the age of 18. There were two subsequent suicide attempts in Australia.

21 The onset of mental health symptoms became marked in about 2004. The accused was admitted to Rozelle Hospital following an assault upon his father. There were a number of admissions to Rozelle where he was detained for a total of about five months. He otherwise received treatment from Campbelltown and Bankstown Mental Health Units.

22 In 2005 he moved with his father to Caboolture in Queensland but ceased taking his medication. He was detained pursuant to a forensic order following an incident in which he struck a work colleague of his father across the head with a hammer, apparently causing severe injuries. He claimed that voices had told him that the man was going to sexually assault his mother. He was prescribed medication for the treatment of schizophrenia. Following discharge he was required to return on an intermittent basis for treatment. He was subsequently placed under a community treatment order.

23 In April 2009, the accused left Caboolture without permission and travelled to Sydney where he took up residence with the deceased. He said that he decided to cease participation in his treatment regime because he did not like the side effects. He did not seek or receive medical treatment in Sydney as he feared that his location would be discovered and that he would be subjected to further compulsory treatment.

24 The accused told Dr Wilcox that he had enrolled in TAFE to study English although he had difficulties attending due to persecutory beliefs. At times he hid in the house because he thought that people were looking at him and were talking about him. The accused said the deceased abused him mentally and made fun of him and his father, describing his father as useless, bad and a donkey. He started to experience auditory hallucinations in the form of hearing voices which he said were coming from the sky.

25 The situation worsened in the weeks leading up to the incident and the symptoms intensified during the afternoon prior to committing the offence. The accused described feeling stressed and worried about his father. The voices were telling him that his father was in danger, especially of being raped, and that he needed to get rid of the deceased. Those voices, which he said he trusted, were the same or very similar to the ones telling him to strike his father’s work colleague with a hammer in 2006. The accused described the voices as very strong compared to the previous nights he had heard them. He could not control himself, whereas previously he could.

26 The accused told Dr Nielssen that on the night of the offence he heard voices telling him that his uncle wanted to hurt his father. They told him to kill his uncle before he did something wrong. He told Dr Nielssen that “the voices were very serious” and that he believed them. He told Dr Wilcox that the voices kept saying, “do it, do it” and they told him that if he did not do it he would be in hell forever for not helping his father.

27 Dr Nielssen asked the accused why he did not seek treatment after the voices became more serious. He replied, “I believe(d) them, I didn’t know I was sick”.

28 Dr Nielssen expressed the following opinions:

Diagnosis of schizophrenia is made on the basis of Mr Fili’s account of the typical symptoms of schizophrenia, including hallucinations of voices giving rise to persecutory beliefs, the history of a typical pattern of treatment for schizophrenia including numerous lengthy admissions to psychiatric hospitals and previous treatment with long acting antipsychotic medication given by injection, and Mr Fili’s presentation at the recent interview, where there was evidence of the “negative” symptoms of schizophrenia in his case careless grooming and poverty of thinking.

…

From the history elicited and the summary of the account Mr Fili gave to the police, it seems clear that he was affected by an acute exacerbation of his schizophrenic illness at the time of the offence. The relapse of illness was due to ceasing antipsychotic medication four or five months earlier. There has been a pattern of violent conduct triggered by hallucinations of voices he took to indicate that his father was in some form of danger.

I believe Mr Fili has the defence of mental illness open to him, as he has a disease of the brain that has produced a pattern of abnormality of mind that would be recognised in law to be a disease of the mind. The abnormality of mind took the form of the delusional belief that his uncle planned to harm his father. From my experience of the effects of the acute phase of severe forms of recurrent schizophrenia, I believe the effect of the symptoms was so strong that Mr Fili was unable to reason with sense or composure about the likely source of the experiences or that his actions in killing his uncle were morally wrong.

29 Dr Wilcox expressed the following opinion:

Mr Fili is a 26 year old single man who has a history of mental illness that dates back from at least 2004 and as a result he has required several admissions to psychiatric hospitals in both NSW and Queensland. His management in the past was complicated by his poor compliance with medication, his lack of insight and his abuse of marijuana.

His illness has been characterised by symptoms that are typical of paranoid schizophrenia. He has experienced prominent auditory hallucinations that are frequently derogatory in nature and persecutory delusions that have been focused on significant family members. In addition he has had an associated global decline in function with an inability to maintain employment and relationships.

…

I agree with Dr Neilssen and believe that Mr Fili has a defence of mental illness open to him. When he stabbed his uncle he had lost contact with reality due to a disease of the mind namely an exacerbation of paranoid schizophrenia. Due to the presence of persecutory delusions and command auditory hallucinations he was labouring under a defect of reason namely that his uncle planned to harm his father and if he did not protect his father he would go to hell. He felt he had no other option and was unable to reason with sense or composure that the auditory hallucinations were not real and that stabbing his uncle was morally wrong.

30 I am satisfied that I should accept the opinions of the psychiatrists. The circumstances surrounding the killing of the deceased are consistent with it being the result of the accused’s mental illness. There is nothing to the contrary. The histories provided to the police and the two psychiatrists are sufficiently consistent to warrant acceptance. Any inconsistencies that there are relate to peripheral matters and may be explicable upon a number of bases other than malingering. Indeed, there is no suggestion in any of the reports, or elsewhere in the evidence, that the accused has been untruthful in relation to matters that bear upon the material on which the psychiatric opinions are based.

31 Accordingly I am satisfied that at the time of killing the deceased the accused was labouring under such a defect of reason, from a disease of the mind that he did not know that what he was doing was morally wrong.

Verdict

32 I find the accused not guilty by reason of mental illness.

Orders

33 I make the following orders:

1 I order that Amer Fili be detained at 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.

2 I direct that the Registrar notify the Minister of Health of this order.

3 I direct that the Registrar notify the Mental Health Review Tribunal of this order and provide to the Tribunal the following documentation:

(a) a copy of these reasons for verdict and orders,
(b) a transcript of this trial, and
(c) a copy of the reports of Dr Rosalie Wilcox (2) and Dr Olav Nielssen.

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05/07/2010 - Change of catchwords - Paragraph(s) Coversheet