R v Gu

[2009] NSWSC 25

CITATION:	R v GU [2009] NSWSC 25
HEARING DATE(S):	6 February 2009
JUDGMENT DATE :	6 February 2009
JUDGMENT OF:	Buddin J
DECISION:	1 The accused Xinfei Gu is unfit to be tried for the offence of murder of Robert Woodger at Eastwood on 20 June 2007. 2 In accordance with s14 of the Mental Health (Criminal Procedure) Act 1990 I refer the accused to the Mental Health Review Tribunal. 3 I remand the accused in custody pending the determination of the Tribunal pursuant to s16 of the Act.
CATCHWORDS:	CRIMINAL LAW - Accused charged with murder - Inquiry into fitness to be tried - Accused unfit to be tried
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	R v Presser [1958] VR 45
PARTIES:	Regina Xinfei Gu
FILE NUMBER(S):	SC 2008/11988
COUNSEL:	M O'Brien (Crown) M Ierace SC (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Lloyd Truman Sadiq Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 6 FEBRUARY 2009

2008/11988 – R v XINFEI GU

JUDGMENT

1 BUDDIN J: The accused is charged with having murdered Robert Woodger at Eastwood on 20 June 2007. This is an inquiry conducted pursuant to the Mental Health (Criminal Procedure) Act 1990 (“the Act”) for the sole purpose of determining whether the accused is fit to stand trial for that offence.

The Crown case

2 I was provided with an Agreed Statement of Facts upon which I have relied heavily in order to describe in summary form the essence of the case which the Crown seeks to advance. .

3 About 5.45am on 20 June 2007 a Taxi Reg. No T-7309 was involved in a collision with a garbage truck in Rutledge Road, Eastwood. The taxi failed to stop. About 6.00am the taxi was located at the corner of Warrawong and Read Streets, Eastwood by the driver of another garbage truck. Police were notified and attended the scene.

4 The vehicle was unoccupied but had sustained damage to it. Blood smears were found in various places on the outside of the vehicle and there were blood spots on the ground outside the taxi.

5 There was a significant quantity of blood throughout the interior of the taxi including pools of blood on the floor both in the front and the rear. Blood stained clothing, a tomahawk, a knife covered in blood and two rolls of gaffer tape, one being made of a red latex type material was located inside the vehicle. A red plastic knife sheath was also located. Police observed what appeared to be knife slash damage on the driver’s seat headrest along with an amount of hair.

6 Police ascertained that the deceased, who was aged 66, had been driving the taxi. He had commenced a 12 hour shift at 1.30am on 20 June. Taxi records indicate that the deceased delivered a passenger from the City to Marsfield at 3.00am. At 3.02am the taxi picked up a passenger in Sobraon Road, Marsfield. At that point the vehicle’s GPS system stopped transmitting any further locations.

7 Police obtained CCTV footage from the taxi. It contains a number of images of a male person in the back seat between 3.17am and 3.59am. The male is wearing a baseball cap with a kangaroo motif on the front and a jacket. The lower portion of his face is uncovered. In a number of images the deceased appears to be having an animated discussion with the passenger. Police assert that the images show that the driver is the deceased and that the passenger is the accused. Police found a cap with a kangaroo emblem on the front of it in the accused’s possession when they arrested him. He was also captured on CCTV wearing the cap at Eastwood Railway Station the previous day. Those same CCTV images also reveal that the accused was wearing a red, white and blue Kangwei jacket. An item matching that description was found in the rear of the deceased’s taxi covered in blood.

8 At about 11.50 pm on 20 June cleaners at Macquarie University Library at North Ryde located four shopping bags containing clothing covered with blood. Security staff were called and found the accused hiding in the library. They said that his whole body was shaking. The accused had a number of lacerations to the fingers on both of his hands which were covered with bandaids.

9 Police attended at approximately 12.30 p.m. and inspected the bags which were observed to contain blood stained clothing and several knives.

10 A man’s brand Tissot wrist watch was also located in one of the bags. Inquiries conducted with members of the deceased’s family reveal that the deceased had worn a wrist watch fitting that description. A pair of bloodstained latex gloves were also located in the bag.

11 Police enquiries revealed that up until the afternoon of June 20 the accused had been residing at 54 Clanwilliam Street, Eastwood which is approximately one block from where the abandoned taxi was located. The owner of those premises rented rooms to foreign exchange students.

12 The accused was arrested and taken into custody. He was interviewed the following day and was also subjected to the conventional forensic procedures. At the request of the accused, police attended the Silverwater Correctional Centre on 23 June and again spoke to him. Investigators showed him a street directory which displayed the Eastwood area. The accused marked streets on the page of the street directory with a pen. He circled an area of Ball Avenue, Eastwood as being the location where investigators should concentrate their search for the body of the deceased.

13 As a result police searched the vicinity of Ball Avenue. At about 2.40pm they located the body of the deceased in an overgrown garden area adjacent to a car park in Ball Avenue. The deceased had suffered extensive lacerations and stab wounds to his head, throat and chest. The autopsy report indicates that the direct cause of death was an incised wound to the neck. In addition there were eight superficial incised injuries to the left side of the head and neck, two superficial wounds to the upper chest, incised wounds to the left thumb and tip of the middle and ring fingers. Contusions and abrasions predominantly to the forehead were also noted.

14 DNA testing was conducted upon various items which were covered in blood. DNA consistent with that of the deceased was located on the blade of a knife found on the back seat of the taxi. DNA consistent with that of the accused was located on the handle of the blade. The accused’s DNA was also located on blood swabs taken from the taxi and from a latex glove found at the library. DNA consistent with that of the deceased was located on a swab taken from the accused’s premises.

The evidence

15 I was provided with reports from Dr Lucas who provided a psychiatric assessment at the request of the accused’s representatives, and from Dr Skinner who provided a similar assessment on behalf of the Crown as well as a statement from the accused’s solicitor, Salina Sadiq. Suffice it to say that the evidence in this case is all one way and is to the effect that the applicant is unfit to stand trial. Nonetheless I must make my own assessment of the material, the question for determination being whether I am satisfied on the balance of probabilities that the accused is fit to be tried. In so proceeding I must of course have regard to the nature of my function as set out in s 11(2) of the Act.

16 The issue which I must resolve is to be determined by application of what is known as the Presser test. In R v Presser [1958] VR 45 Smith J stated the test in the following terms:

It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs. . . to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formality. He needs to be able to understand. . . the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must . . . have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any. (at 48)

17 Dr Lucas interviewed the accused on 29 September 2008. In making his assessment he also had the advantage of reading the extensive clinical notes held by Justice Health in relation to the accused which indicate that he has been seen by a number of psychiatrists since he has been in custody.

18 The accused, who is now aged 24, grew up in China as an only child. He was apparently sent by his parents to Australia to undertake tertiary studies. To that end he enrolled at Macquarie University which he attended for three years. His academic progress was poor and it would appear that just prior to the fatal incident he was informed by the University that he was unable to continue his studies as he had not reached the required academic standard. That placed the accused in an invidious position as he had falsely informed his parents, who had remained in China and who held high expectations of him, that he had been progressing well.

19 Dr Lucas provided the following opinion about the accused.

In my opinion [the accused] is suffering from paranoid schizophrenia. The history indicates psychosis had an insidious onset, certainly prior to his arrest, and was diagnosed shortly after his reception into prison. His symptoms have never been florid and remain somewhat subtle but clearly psychotic. His presentation has been influenced by the gradual onset of symptoms and almost certainly by cultural factors. In 2005 and 2006 there were indications of depressive and anxiety symptoms and deteriorating academic performance. His prognosis is guarded and treatment at a psychiatric unit is strongly indicated.
During his early assessments it was thought that malingering had to be excluded. In my opinion the diagnosis is now settled and simulation of psychosis can be ruled out.
…
[The accused] is suffering from a psychosis, paranoid schizophrenia. He remains unwell despite some improvement with treatment. He lacks insight and has been refusing contact with his treating psychiatrist.
Bearing in mind Presser criteria, in my opinion, [the accused] is unfit to stand trial. I understand he has been informed of the nature of legal proceedings, the role of parties and personnel involved in them. He gave a rather cursory account of his knowledge but I believe he is well able to comprehend information he has received and will undoubtedly continue to receive about his case and the nature of proceedings. He intends to plead not guilty but has been informed about the defence of mental illness.
I have a number of concerns which have led to the opinion that he is unfit to stand trial. He has psychotic symptoms which I believe affect his ability to instruct and to rationally comprehend and appreciate proceedings in a trial on the charge of murder. He has strong and consistent beliefs about supernatural being, also referred to as “he”, a “power” or “third person”. It is all knowing, immeasurably powerful, knows about not only [the accused] but also his legal advisors, the judge and jury, and can influence events. [The accused] also believes that this power has saved him from the likely loss of his visa and put him into the situation where he has been charged with murder, a matter which he can fight in court, something he could not do with the loss of a student visa. He believes the power will look after him and see him through.
Also, as described by his solicitor, he believes the power in some way has been present during conferences with her client. In a sense this power, a product of a delusional belief, will be in [the accused’s] mind an unseen party in his dealings with his legal advisors and during court proceedings. One cannot predict just how this may influence [the accused] in his instructions and decisions or how he perceives the progress of court proceedings, the actions of participants and the decisions reached. His lack of insight and delusional beliefs are likely to influence instructions regarding his plea.

20 Ms Sadiq has conducted numerous conferences with the accused. It is apparent that his delusional beliefs have prevented him from communicating meaningful instructions to his legal representatives. The following examples taken from her statement demonstrate the point:

During my first meeting with the accused, he told me that he could study while he was asleep. He told me that he could communicate with other people while he was asleep and that he received messages from people while he was asleep and that he could carry out their demands while he was asleep.
During my first meeting with the accused, he appeared to look around the room. He touched the entire wall and looked under the table. There was no person in the room other than the accused and myself.
In one of my early meetings with the accused, he referred to the existence of a ‘third party’. He told me that the ‘third party’ had participated in the incident with which he had been charged. He told me that he could speak or consult with the ‘third party’ before our next conference and that he would ask the ‘third party’ to join us in the conference.
I had my second conference with the accused on 25 August 2007. During the conference, the accused said to me: ‘The third party informed me last night that you will be coming’. He told me that the ‘third party’ had informed him that I had been sent by a ‘Que Ren’, meaning a being who guides or helps.
During the conference on 25 August 2007, the accused asked me to speak very softly. He told me that he was concerned that someone would hear us talking. He said: ‘This room is full of listening devices’.
During the conference on 25 August 2007, the accused told me that he could communicate with a ‘super-power’. He asked me not to tell anyone about this. He asked me to ‘finger-promise’ that I would not do so. We shook hands in a way common in Asian cultures, involving the hooking of the little finger of one another’s hands. He said that he would ask the ‘super-power’ to join us in our next meeting.
…
On an occasion in about September 2007, the accused telephoned me on my mobile telephone. He told me someone was harming or intending to harm him and that the person had a very sharp object in his room. He told me that the man with whom he shared a room was dangerous. He asked me to help him. I telephoned the Department of Corrective Services immediately and spoke with a welfare officer. I told the officer what the accused had said. The welfare officer telephoned me back shortly afterwards. The officer told me that the accused did not share a cell with anyone.
I had another conference with the accused on 28 October 2007. During the conference, the accused asked me not to sit too close to the heater. He asked me to bring a chair closer to the heater for the ‘third’ person to sit on during our conference. I did so.
During the conference on 28 October 2007, the accused appeared to be smiling to someone other than myself. He appeared to be communicating with someone other than myself. There was no person in the room other than the accused and myself. …
During the conference on 8 December 2007, the accused again asked questions and then answered the questions himself. At one point, he said: “Wait he is talking now, let him finish and I will tell you what he said”. He appeared very attentive to something or someone not apparent to me. There was no one in the room other than the accused and myself.
I had another conference with the accused on 18 December 2007. The accused telephoned me before I attended the conference and told me that I must see him urgently. I did so. During the conference, the accused told me that he had to attend an exam to be held tomorrow at Macquarie University. He told me that he had been unable to sleep because he had been studying for the exam. He told me that I should attend the exam with the ‘third party’ and direct him to the correct exam hall. He told me that the ‘third party’ would help him with the exam.
…
During the conference on 3 June 2008, I told the accused that I would be visiting him with senior counsel soon. He said the third party had already told him that he would be coming. I asked him how and when the third party communicated with him. He said: “I speak to him in my dreams, or in the yard, or in my room”. He told me he was fearful that an inmate may hear him communicating with the third party.
On 16 June I visited the accused with Mr Ierace SC. During the conference, the accused referred to a force. Mr Ierace asked him: ‘Is there some kind of force?’ The accused said: ‘Yes, he will help me in the hearing’.

21 Dr Skinner examined the accused on 13 November 2008. Her observations and findings are consistent with the views expressed by Dr Lucas.

22 Her conclusions and opinions are in the following terms:

[The accused] is suffering from a severe mental illness, probably chronic schizophrenia, characterized by delusional beliefs. He denies auditory hallucinations, but appears to have had some other perceptual disturbances, as he described olfactory hallucinations, altered bodily sensations and strange feelings accompanied by sensation of fear.
From his description of circumstances surrounding the event and after reading his first interview and the statement of his solicitor, I think that he was suffering from delusional beliefs that affected his capacity to reason around the time of the alleged offences.
I do not think that [the accused] is fit to plead and to stand trial. He is intelligent and has a good understanding of the court proceedings and in general terms, of the legal process. He is capable of reading and understanding the evidence. His English is fluent and his English comprehension is good. However, he continues to hold delusional beliefs that would affect his interpretation and understanding of the evidence presented in court.
He might have unrealistic expectations of his legal team (“the involvement of the QC was arranged by the super being”). He does not accept that he is suffering from a mental illness or that he has suffered from any mental illness in the past and therefore it is unlikely that he will accept the defence of mental illness. He probably holds delusional beliefs in relation to his defence. Thus he would not be able to assist his counsel to prepare a defence to the charge.
He requires ongoing psychiatric treatment with anti-psychotic medication and should remain under psychiatric treatment for the foreseeable future.

23 Having regard to the state of the evidence, I am satisfied that on the balance of probabilities the accused is unfit to be tried. The delusional beliefs observed by the two very experienced forensic psychiatrists who examined him restrict his understanding of the trial process and limit his capacity to communicate his instructions to his legal representatives.

Order

24 1 The accused Xinfei Gu is unfit to be tried for the offence of murder of Robert Woodger at Eastwood on 20 June 2007.

2 In accordance with s14 of the Mental Health (Criminal Procedure) Act 1990 I refer the accused to the Mental Health Review Tribunal.

3 I remand the accused in custody pending the determination of the Tribunal pursuant to s16 of the Act.

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