R v Gianisis

[2001] NSWSC 851

CITATION:	R v Gianisis [2001] NSWSC 851
FILE NUMBER(S):	SC 70025/01
HEARING DATE(S):	20/7/2001
JUDGMENT DATE:	20 July 2001
PARTIES :	Regina Mark Ronald John Gianisis
JUDGMENT OF:	Dowd J at 1

COUNSEL :	Mr PM Winch- Accused Mr PS Dare- Crown
SOLICITORS:	Legal Aid Commission of New South Wales- Accused Director of Public Prosecutions (NSW)- Crown
CATCHWORDS:	Murder - Plea of guilty on the ground of mental illness - Judge alone trial - Psychiatric evidence - Mental Health Review Tribunal
LEGISLATION CITED:	Mental Health Act 1990
CASES CITED:	Mizzi v R (1959-1960) 105 CLR 659. Re M'Naghten's Case (1843) 8 ER 718. The King v Porter (1933) 55 CLR 182.
DECISION:	1. Not guilty of murder on the ground of mental illness; and 2. The accused is to be detained in the Psychiatric Ward at the Hospital of Long Bay Correctional Centre, or at such other places as may be referred by the Mental Health Review Tribunal, until released by the due processes of law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

DOWD J

20 JULY 2001

70025/01

Regina v Mark Ronald John GIANISIS

Remarks on Sentence

1    HIS HONOUR: In this trial, the accused, Mark Ronald John Giansis, is indicted in that on 16 June 2000, at Lithgow, in the State of New South Wales, he did murder Glen Joseph Pateman. The accused has pleaded not guilty, and it is submitted by his counsel that the evidence admitted before me, and having been tendered by the Crown, clearly makes out that that defence of not guilty is on the basis of the accused being not guilty on the grounds of mental illness.

2    The trial before me is without jury, being pursuant to an election dated 13 July 2001 by the accused for the trial to be by judge alone, and the Crown Prosecutor consents to that course, and I consider that it is a proper matter so to do.

3    I direct myself that the crime of murder is committed where the act of the accused, which caused the death of the deceased, was done by him with an intention to kill or to inflict grievous bodily harm. In the present case, the Crown must establish beyond reasonable doubt that it was the accused who did the act which caused the death of the deceased; that the act was a deliberate one on the part of the accused; and that it was done with an intention to kill or to inflict really serious bodily harm. The onus of proof is therefore of the criminal standard, and the Crown has to establish that beyond reasonable doubt.

4    The defence of the accused of not guilty on the grounds of mental illness, requires the accused to make out that defence and he bears the onus of proving that, but the onus on him requires him to establish proof of the defence on the balance of probabilities, and I direct myself that if on the balance of probability I am satisfied that the accused lacked criminal responsibility by reason of mental illness, such verdict does not mean that the accused will go free.

5    I further direct myself that the question of not guilty by reason of mental illness relates to the time when the offence was committed, and in determining the state of mind at the time, I may be assisted by his mental history and his position subsequently.

6    I further direct myself that the purpose of punishing people for crime is to deter others from committing a like crime, and to punish the particular person for his or her wrongdoing. It is pointless for the law to punish people for wrongdoing if their mental condition is such that they did not understand what they were doing or appreciate that it was wrong. It is better that they be held in an appropriate institution and treated, rather than that they be punished. There is little deterrent effect if the person punished was obviously mentally ill at the time of the conduct alleged to constitute a criminal offence. It is for those reasons that a special verdict of not guilty by reason of mental illness is available.

7    I further direct myself that my inquiry concerns a consideration of the evidence as it relates to the actual time the alleged offence was committed. What I have to look at is, whether at that time, the state of mind of the accused actually involved a defect of reason from a disease of the mind. Mere excitability, lack of self-control, or impulsiveness are quite different things from a defect of reason due to disease of the mind.

8    What I am concerned with here is a disorder of understanding and reasoning, or a disorder of the functioning of the mind. If I am satisfied that there was such a defect of reason from a disease of the mind, then to constitute the defence it must be of such character as to either prevent the accused from appreciating the nature and quality of the act he was doing, or to prevent him from knowing that what he was doing was wrong.

9    There are two limbs therefore, either of which is sufficient to establish the defence. That is, that the accused did not appreciate the nature and quality of his act, or if he did have that knowledge, that he did not know that it was wrong. As to the second limb, the question of whether by reason of the disease of the mind, he was disabled from knowing that it was a wrong act to commit in the sense that an ordinary reasonable person understands right and wrong, that is whether or not he was disabled from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing.

10    I further direct that the defence of mental illness requires me to consider whether upon a balance of probabilities, that is a weighing of the scales, the accused has proved that he has suffered from a defect of reason due to a disease of the mind such that he did not understand and appreciate the nature and quality of his act, or such that he did not know that it was a wrong act to commit in the sense that an ordinary reasonable man understands right and wrong, but that he was disabled from reasoning with some moderate degree of composure and sense as to the wrongness of his act.

11    I am further obliged to direct myself as to the legal and practical consequences of the findings which are open in this trial. If my verdict is one of not guilty, that is an outright acquittal, then the accused would be immediately discharged and would return to the community. If my verdict was one of guilty of the offence of murder, then he would be sentenced by me according to law. The third possible outcome is the special verdict of not guilty by reason of mental illness.

12    The last verdict requires me to outline the provisions under the Mental Health Act 1990, which would apply if I were to bring in the special verdict of not guilty by reason of mental illness. It would be my duty to order that the accused be detained in strict custody in such a place and in such a manner as to me seems fit until released by due process of the law. The accused would therefore not return to the community; and he would be detained in strict custody in a place which would be a psychiatric hospital gazetted under the Mental Health Act 1990. I am required to outline in detail what happens then.

13    While detained in strict custody in that way, the accused would come under the supervision of a body known as the Mental Health Review Tribunal (‘the Tribunal’). It comprises a President, Deputy President, who has qualifications as a barrister or solicitor and two other members, one of whom must be a psychiatrist, and the other of whom must be a person having suitable qualifications and experience to serve on the body. Within the fourteen days of any verdict, the Tribunal would commence a review of the case of the accused. The review could take more than fourteen days to complete, but at its conclusion, the Tribunal would make a recommendation to the Minister for Health. That recommendation could be either unconditional or subject to conditions as to the manner in which the accused should be detained, cared for or treated.

14    If the Tribunal was satisfied, but only if it was satisfied that the safety of the accused or any member of the public would not be seriously in danger by his release, it could make a recommendation as to his release. If it makes such a recommendation, then that would be considered by the Department of Health which in turn would advise the Governor. The Governor would then, in accordance with the recommendation and advice, either make an order for the detention of the accused or for his release, conditional or unconditional. The Governor could only make an order for release where the Tribunal had recommended release. After the first hearing of the Mental Health Tribunal, it can at any later time and must at least once every six months review the case of the accused.

15    After hearing the evidence at a later review, the Tribunal would make a recommendation to the Minister for Health as to the continued detention care or treatment of the accused or as to his release, conditional or unconditional. The Tribunal would not be free at any such review to make a recommendation for release unless it is satisfied that the safety of the accused or any member of the public, would not be seriously endangered by the accused’s release. Again, following such a review and recommendation, the matter would go to the Department of Health and the Minister would advise the Governor. Any recommendations so advised could be carried into effect only by order of the Government.

16    I further direct that if the accused was at any time released back to the public on conditions and it appears that a breach of those conditions took place, then the Governor may order that the accused be apprehended and detained. Such order would follow by reason of the practical consideration that if a person is released, the Department of Health would maintain a watch over his case with the assistance of a Community Health Centre, a private psychiatrist, or one of the other public facilities available.

17    In other words, if a person is released conditionally back into the community, then the Department would maintain a watch over him and a breach of any conditions would lead to him being apprehended and detained once again. The conditions which could be applied include matters such as living in a particular place, taking particular medication and so on, and to ensure that the patient or the accused was properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions catering for forensic patients.

18    The only manner in which a person ceases to be a forensic patient for the purposes of these conditions, is when he is unconditionally released by the Governor or is released upon conditions which include a condition as to the time when his release should become unconditional. If that time expires, then his release becomes unconditional and he ceases to be a forensic patient. However, as I have previously outlined, the accused or a forensic patient in his position could never be released until the Mental Health Review Tribunal, comprising those persons with special qualifications, was satisfied on the evidence available to it that his safety and the safety of any member of the public would not be seriously in danger. It is my duty to outline these matters as practical and legal consequences. The purpose is to ensure that he understood what will follow from each alternative decision. It is not to invite selection as for what seems preferable or the best outcome for the accused or the community. I am required to come to a verdict according to the evidence, and according to the principles of law that I have outlined.

19    The facts of the case for the Crown are that the accused stabbed the deceased, a good friend with whom he was living, resulting in the death. The accused was born on 23 March 1971, his parents separating when he was age two, and he lived with his mother until he was fourteen. The accused then moved in with his grandparents in Hurstville, until they moved to Katoomba. His grandfather died in 1994 and he remained living with his grandmother until her death in 1995, and the accused then stayed at Katoomba for a period, moving to Queensland for some months before returning to live with his father.

20    The accused was unemployed during the time he stayed with his father. He would remain in bed all morning. He was given an ultimatum by his father to find work, or find somewhere else to live. The accused left, having been given access to money which he inherited from his grandmother's estate. His father did not see him for twelve months. When he next saw the accused, the father noted peculiar behaviour. The accused confronted him at his home about the accused's fear of spreading rumours about the accused to which the father said:

"I don't even know where you're living, let alone spreading rumours." The accused looked in the sky and said "you're the fuck'n blame.”"

21    On 1 June 2000, the accused came to his father's place of employment and verbally abused him. On 15 June, the day before the death of the deceased, the accused went to the father's home, ripped off the screen door and the alarm pad from the wall.

22    The deceased was born in June of 1970. He worked as a station assistant at Wentworth Falls and was later sent to Lithgow, working as an observer on Goods Trains. He bought a house at 16 Wentworth Street, Lithgow, but his parents noted that he was not eating properly and that he had become somewhat withdrawn.

23    After a motor vehicle accident, the deceased was diagnosed as suffering from schizophrenia with symptoms, including visual and auditory hallucinations. He had to leave his job because of his medical condition, but paid off the house at Wentworth Street with the termination monies. The deceased's father found out that the accused had moved in with the deceased, as he had nowhere else to live. The two young men had known each other since their teenage years in the Blue Mountains. Initially things went well, the accused going to church with the deceased and he helping to keep the house in order. The accused's behaviour deteriorated and the deceased told his father of the accused damaging parts of the house and screaming out at night. The deceased's parents were sufficiently concerned to contact professional help, and the deceased also contacted the Mental Health Team, because of the accused screaming out loudly over a period of time, and because there was an increase in violence.

24    Neighbours observed strange behaviour on the part of the accused leading up to 16 June. A neighbour, Mr Ewan Patterson, living a few doors away, noted that the accused was of a pleasant disposition, but that he later shaved his head and began to walk in a stooped position. He lost weight and appeared to be disturbed and unhappy. He observed the accused appear at a fence and roar like a lion before running to the house. Another neighbour saw the accused yelling in the front yard of 16 Wentworth Street. He was holding out his arms yelling,

"Give me a fuck’n sign or I'm going to kill everyone".

25    Another neighbour who lived nearby described the accused as walking with an unusual gait, and he heard the accused the day before the killing, yelling and swearing loudly in the street. When he remonstrated with the accused, the accused spoke in words so fast as to be incoherent. His demeanour was observed as aggressive, speaking fast and loudly, and behaving irrationally.

26    The cause of death of the deceased revealed twenty-one separate wounds, consistent with being inflicted by a knife. The cause of death came from stab wounds penetrating the left lung, heart, aorta, left renal vein and a kidney. At 3:00pm on 16 June 2000, the accused walked into Lithgow Police Station wearing a singlet, trackpants suit, a leather work belt and boots and a weight lifting belt. The Police Officer saw there was blood on the accused's left-hand and the accused did not answer questions, but wrote the word "kill", initially on the counter of the police station, and then on a piece of paper.

27    A Detective Cottee recognised the accused, noted him to be standing motionless with a fixed stare. He did not respond to questions and responded mechanically and very slowly. Police found the body of the deceased submerged in water in a bath, and in an attempt to interview the accused, no verbal response was given.

28    The accused had blood on his clothing and although he had no recollection of the events about the blood found on him, it has been admitted to be that of the deceased's.

29    As to the defence of mental illness, as I have indicated by applying Mizzi v R (1959-1960) 105 CLR 659, evidence of mental illness may be found in the behaviour of the accused, and medical witnesses may give evidence of their opinion as to whether the accused would appreciate the nature and quality of his act. In those proceedings, in addition to the neighbours and friends' evidence that I have outlined earlier, the accused was seen by a forensic psychiatrist, Dr Rosalie Wilcox for the defence, and for the accused, and Dr Yvonne Skinner, Forensic Psychiatrist, for the Crown. The report of those two psychiatrists have been admitted in evidence before me.

30    Dr Wilcox opined that the accused suffers from a mental illness, characterised by delusions and hallucinations, the most likely diagnosis being paranoid schizophrenia. The evidence of Dr Wilcox was that at the time of the killing, the accused was suffering from a disease of the mind, and although he would have been aware of the physical nature and quality of his acts, it is most probably that he was unable to reason with a moderate degree of sense and composure about the wrongness of his actions.

31    Doctor Skinner's evidence is that the accused suffered from a severe mental illness, namely Chronic Schizophrenia, that he suffered an acute psychotic episode at the time of the killing, that he was experiencing auditory hallucinations, and that he did not know what he was doing.

32    On the examination of the evidence adduced by the Crown, I find beyond reasonable doubt that the death of the deceased was caused by the act of the accused, and that that act, namely the stabbing of the deceased, was done with intent to kill or to inflict really serious bodily harm, and therefore would, other than for the defence of not guilty on the grounds of mental illness, be guilty of the offence of murder. There is, in relation to the offence of not guilty on the grounds of mental illness, evidence from the police and lay witnesses, which I have outlined, which indicates that the accused was suffering from a disease of the mind depriving him of the capacity that he ought not to do the act or that what he was doing was wrong.

33    I believe that the principles outlined in Re M’Naghten’s Case (1843) 8 ER 718 at 722 and the The King v Porter (1933) 55 CLR 182 at 189 to 190, apply in this case, and on the balance of probabilities the accused has satisfied the evidentiary onus that he was mentally ill at the time he killed Glen Joseph Pateman, and the verdict of the Court is that the accused is not guilty by reason of mental illness.

34    I therefore propose that the accused, having been found not guilty of the crime of murder by reason of mental illness, is to be detained in the psychiatric ward of the hospital at Long Bay Correctional Centre or such other places, that may be determined by the Mental Health Review Tribunal, until released by due process of the law.

35    May I, if there are members of the family of the deceased and family of the accused here, express the Court's sympathy for the terrible events which have occurred which will not go away and will be very hard to live with, but I wish to express that on behalf of the Court.

36    The prisoner may go into custody.

oOo

Last Modified: 10/22/2001