R v Heydari

[2015] NSWSC 207

Supreme Court

New South Wales

Medium Neutral Citation:

R v Heydari [2015] NSWSC 207

Hearing dates:

12-13 March 2015

Date of orders:

13 March 2015

Decision date:

25 March 2015

Jurisdiction:

Common Law - Criminal

Before:

Mathews AJ

Decision:

I find the accused Javad Heydari not guilty on the ground of mental illness in relation to both counts in the indictment namely:

(1)  that on 5 September 2013 he murdered Mohammed Ali Nabizada; and

(2) that on 5 September 2013 he wounded Rauf Hassani with intent to murder him

Catchwords:

Murder; wound with intent to murder; judge alone trial; defence of mental illness; special verdict - not guilty on the grounds of mental illness

Legislation Cited:

Crimes Act 1900
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

R v McNaghten (1843) 8 ER 718
The King v Porter (1933) 55 CLR 182

Category:

Principal judgment

Parties:

Regina
Javad Heydari

Representation:

Counsel:
Mr L Lungo (Crown)
Ms B Rigg SC (Accused)

Solicitor:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s):

2013/270051

Judgment

1. MATHEWS AJ:

Background

2. On 13 March 2015, Javad Heydari was charged by way of indictment with the following offences: first, that on 5 September 2013 he murdered Mohammed Ali Nabizada, and second, that on the same day he wounded Rauf Hassani with intent to murder him. He pleaded not guilty to both charges.

3. An order had previously been made, by consent, that the accused be tried by judge alone. Accordingly, the trial proceeded before me without a jury. Only documentary material was tendered at the hearing. No oral evidence was called by either party. There was no doubt that the accused had inflicted the fatal injuries on Mr Nabizada (“the deceased”) and that he had seriously injured Mr Hassani (“the victim”). Moreover he freely admitted that when he did so he intended to kill them. The only remaining issue was his mental condition at the time. As to this, both parties were in agreement that, on the basis of the whole of the evidence in the case, including the psychiatric reports, the accused should be found not guilty on the ground of mental illness in relation to both charges.

4. On 14 March 2015, after I had read the various documents and reports, I entered a verdict of not guilty on the ground of mental illness in relation to both charges. I adjourned the proceedings until 26 June 2015, and made orders relating to the disposition of the accused in the meantime, as well as to the provision of a report to the Court on the adjourned date, containing recommendations as to the care and/or treatment of the accused and his recommended placement in a prison or mental health facility. I also said that I would deliver my reasons at a date to be fixed.

5. These, then, are my reasons for finding the accused not guilty on the ground of mental illness in relation to both charges.

Background of the Accused

6. The accused is now 37 or 38 years old, having been born in Afghanistan in 1977. He does not know his precise birth date. He was the seventh of nine children. His family lived in a rural area of Afghanistan where his father was a farmer. As a child he was obsessed with cleanliness, which sometimes made his mother angry and in turn led to violence from his father. Otherwise he had an uneventful childhood. He left school at the age of 15 and has had no formal training. At first he worked on the family farm. Then, at the age of 21, he moved to Iran where he worked as a labourer in the construction industry. Over the next 15 years, until he left for Australia, the accused moved back and forth between Iran and Afghanistan. He was married in Afghanistan in about 2006 or 2007 and has three children. His family remains in Afghanistan.

7. The accused travelled to Australia by boat in 2013. He told Dr Furst that he did so “for a better life.” He was on his own, unaccompanied by family members or friends, and without travel documents or a visa. He arrived in May 2013, and was initially detained at Christmas Island Detention Centre and then transferred to Yongah Hill Detention Centre in Western Australia. On 31 July 2013, he was granted a conditional visa and released from detention. He initially went to Geelong where he was living in a shared house. Whilst there he contacted the victim, Mr Hassani, who was said to be a distant relative of his, and told him that he knew no one and was feeling helpless. The victim, who was then living in Berala, a western suburb of Sydney, paid for the accused to fly from Melbourne to Sydney. He met the accused at the airport and drove him to the apartment where he and the deceased were living at The Crescent, Berala. It was a two bedroom apartment which they shared with two other men. The other men slept in one bedroom, leaving the accused, the deceased and the victim to share the other one. The victim slept in the one bed in the room, and the accused and the deceased slept separately on the floor.

8. By that time the accused had started suffering from mental health problems. I shall be saying more about this later. On 18 August 2013 he consulted a general practitioner and complained of insomnia, depressed mood, low self-esteem and panic attacks. He was prescribed an antidepressant and a sedative.

Circumstances of the Offences

9. On the evening of 4 September, all five men were home in the apartment. Each of them retired to their respective beds at various points of the evening. The deceased and the victim went to sleep in the room they were sharing with the accused. The light was off and, as was his custom, the victim slept with his blanket covering his face.

10. At about 2.00am on 5 September, the victim was awoken by the accused removing the blanket from his face. The accused had a kitchen knife in his hand with which he stabbed the victim in the abdomen. The accused then moved to the deceased, who was lying on the floor. He crouched over him and stabbed him in the chest with the same knife. He was saying words similar to: “I’m Javad and I’m Sheik.” The victim had the strength to get up and fight the accused, and push him into a cupboard that was in the room. He called out to the other men who were in the house. In due course they both woke up and ran to a neighbour’s home, requesting that they call the police. The police arrived a short time later. At that time the accused was standing at the front of the units, holding the kitchen knife which was covered in blood. He was directed by the police on a number of occasions to drop the knife, and he eventually did so. He was then cautioned and arrested.

11. At about that time, the victim told the police that there was another person inside. The police went into the apartment and found the deceased in the bedroom. He was struggling for breath and was unable to speak. The ambulance was called and the deceased was conveyed to Westmead Hospital. He was pronounced dead on arrival. A post mortem examination found that the cause of death was a single stab wound to the left anterior chest. The wound was approximately 17 cm in depth, and had punctured the rib, left lung and the heart.

12. The victim was also conveyed to Westmead Hospital. He was found to have sustained a stab wound to the upper abdomen which had lacerated his liver. He underwent surgery to repair the damage to his liver. The wound was described as potentially life threatening.

Events Following the Offences

13. On the afternoon of 5 September 2013, the accused entered into a lengthy interview with police at Auburn Police Station, assisted by an interpreter. In it he admitted stabbing the two men, saying that they had done a “bad thing” to him the night before. When pressed about this, he said that he had realised, when he woke up the previous morning, that the two of them had raped him during the night, knowing that he had taken a sleeping pill. How he had known this he was unable to say. The two of them were planning to do it again that night, he said, so he took a kitchen knife into the bedroom and stabbed them while they were asleep. He intended to kill them when he did so. When asked if he had a mental illness he said “yes”, but he was unable to name his condition.

14. The accused was later examined at Westmead Hospital in relation to the sexual assault allegation. The examining doctor was unable to confirm or exclude the possibility of anal sexual assault. However, in the light of the whole of the evidence in the case, including the victim’s categorical denial of any sexual assault, the accused’s apparent inability to recall it in any detail, and the extent of his mental illness at the time, it is clear that no such assault ever took place. The accused’s undoubtedly genuine belief that this did occur was, rather, a symptom of his mental illness, as I shall come to discuss shortly.

15. On the same day, 5 September 2013, the accused was arrested and charged with the present offences. He has been in custody ever since.

16. On the basis of this material, I have no difficulty in finding that the essential ingredients of both offences have been established beyond reasonable doubt. In relation to the first charge of murder, the fatal stab wound was clearly inflicted by the accused. Indeed, he has never denied it. Similarly, he has freely admitted that he intended to kill the deceased at the time. No matter of justification or defence has been raised other than the defence of mental illness. The same applies in relation to the second charge: the accused has admitted stabbing the victim, intending to kill him. The only outstanding issue, therefore, in relation to both charges, is whether the defence of mental illness has been made out, a matter to which I now turn.

Defence of Mental Illness

17. It has long been established that, once the issue of mental illness has been raised, it is to be determined in accordance with the rules set out in R v McNaghten (1843) 8 ER 718, (commonly known as “the McNaghten rules”). These rules provide that, in order to establish the defence of mental illness, the defence must prove, on the balance of probabilities, that at the time of committing the offence, the accused was suffering from such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of his act; or, if he did know it, that he did not know that what he was doing was wrong.

18. This exposition of the defence has stood the test of a great deal of time. Some aspects of it have been enlarged upon in the intervening period, but the words generally mean precisely what they say. There is only one aspect of the defence which requires further elucidation in the circumstances of this case, which I shall discuss a little later. In the meantime, I turn to consider the psychiatric evidence which was before the Court.

Psychiatric Reports

19. The defence tendered three reports of the forensic psychiatrist Dr Richard Furst, dated respectively 31 December 2013, 4 July 2014 and 23 February 2015. He had seen the accused at the Long Bay Hospital on 4 December 2013.

20. The Crown tendered a lengthy report of Professor David Greenberg dated 14 September 2014. Professor Greenberg had seen the accused on three occasions, on 22 August, 27 August and 9 September 2014 at the Metropolitan Remand Centre at the Silverwater Complex.

21. Given that the first psychiatrist to see the accused in point of time was Dr Furst, I propose first to discuss his earlier reports, then to turn to Professor Greenberg’s report.

22. Dr Furst summarised the accused’s medical records following his reception into the Remand Centre. When the accused was first incarcerated he was found to be “irritable, hopeless, and indifferent about life and death.” He was considered a suicide risk, and was placed in a safe cell under constant observation. Over the next three months he was assessed by three psychiatrists. Dr Furst set out their findings in his first report. The first psychiatrist, Dr Elliott, considered that the accused was suffering from a major depressive episode with persecutory ideas. Dr Malik, who saw him on 30 September 2013, prescribed antipsychotic and antidepressant medication due to the accused’s symptoms of insomnia and psychosis. Dr Saboor, who saw him at least twice in October, considered that the accused was probably suffering from schizophrenia. Dr Furst also diagnosed the accused as suffering from “schizophrenia, paranoid type”. He considered that, at that time (December 2013) the accused was not fit to be tried, although he said that he might well become fit within the next 12 months. He also considered that the accused had the defence of mental illness available to him.

23. Dr Furst wrote his second report, dated 4 July 2014, after being provided with further documentation about the offences themselves, as well as the accused’s medical records which preceded the offences. He considered that the accused had become mentally unwell in the weeks preceding the offences, and was acutely psychotic at the time he committed them. This appears to have been his first episode of psychosis, and the doctor referred to research which shows that the first episode of psychosis is often accompanied by a greatly increased risk of homicide and serious violence.

24. Dr Furst’s third report was written after he had been provided with Professor Greenberg’s report of 14 September 2014, and I now turn to discuss that report.

25. Professor Greenberg, as already mentioned, saw the accused on three occasions in August and September 2014. He had been provided with numerous documents relating to the offences, including the transcript of the accused’s ERISP on 5 September 2013 and the various medical records which post-dated the accused’s incarceration. Professor Greenberg took a lengthy history from the accused as to his background and his mental state up to and including the time of the commission of the offences. The accused had been increasingly depressed in the two weeks leading up to the offences. He had lost his appetite and was feeling suicidal. The one thing that restrained him from suiciding was his fear of going to hell.

26. Professor Greenberg noted that at the time of the interviews (which took place approximately one year after the offences) the accused did not appear agitated, although he was somewhat anxious. He still had “paranoid delusions” that he had been raped, and continued to say that he was justified in his actions.

27. In Professor Greenberg’s opinion, the accused had long suffered from an obsessive compulsive disorder. This had manifested itself, since his early childhood, in his intrusive thoughts about cleanliness and his compulsive hand washing. More significantly for present purposes, the Professor considered that at the time of committing these offences the accused was suffering from a major depressive disorder with psychotic features. This was exacerbated by the fact that he was, at that time, suffering from benzodiazepine withdrawal, as since coming to Sydney he had run out of the valium which he had previously been taking in large doses.

28. The Professor expressed the view that at the time he wrote his report the accused was fit to stand trial. He went on to discuss the defence of mental illness. He concluded that at the time of the offences the accused was suffering from a disease of the mind, namely a major depressive disorder with psychotic features. This disease had led to a defect in his reason, in that he believed that the deceased and the victim had sodomised him and were planning to do so again. The accused did know the nature and quality of his actions at the time, but he did not know that they were morally wrong. He probably understood that what he did was legally wrong, but he felt morally justified in his actions. Accordingly, Professor Greenberg expressed the view that the accused had the defence of mental illness available to him.

29. Finally in his report, the Professor addressed the question of whether the accused was suffering from schizophrenia at the time of the offences. He determined this matter in the negative. The accused, he said, had paranoid delusions, but did not have other symptoms of acute schizophrenia, such as hallucinations, disorganised speech or grossly disorganised behaviour. The symptoms he presented with, both before and after the offences, were consistent with his suffering from a major depressive disorder with associated anxiety, rather than with schizophrenia.

30. It was this aspect of Professor Greenberg’s report which was referred back to Dr Furst, and which the latter addressed in his third report, dated 23 February 2015. Dr Furst agreed with the Professor that, at the time of the offences, the accused was suffering from symptoms of severe depression and psychosis. However he maintained his earlier opinion that the accused was also suffering from schizophrenia.

31. It is unnecessary for present purposes to make any determination on this issue. For, on any view of the matter, the condition which both experts agree that the accused was suffering at the time, namely severe depression with psychotic features, constitutes a disease of the mind under the McNaghten rules. Nor is there any doubt that this led to the accused’s paranoid delusion that he had been sodomised, and therefore to his belief that he was morally entitled to act as he did when he stabbed the two men. In this regard, there is ample authority for the proposition that the requirement, in the McNaghten Rules, that the accused not know that what he was doing was wrong, relates to the accused’s perception of the moral quality of his actions. It is now firmly established that the test is not concerned with the accused’s knowledge of the illegality of his actions, but with his ability to “reason, with a moderate degree of calmness, in relation to the moral quality of what he is doing” (The King v Porter (1933) 55 CLR 182 at 189-190).

32. It is abundantly clear that the present accused, by reason of his mental illness, lacked that capacity. Accordingly, I was satisfied on the balance of probabilities that at the time of committing these offences the accused was mentally ill in the relevant sense. It is for this reason that I entered a verdict of not guilty on the ground of mental illness in relation to each of the two charges.

33. The only remaining matter to be mentioned arises by virtue of the requirement, in s 37 of the Mental Health (Forensic Provisions) Act, 1990, that if at the trial of a person a question is raised as to whether the accused was mentally ill at the time of committing the offence(s), the Judge is obliged to explain various matters to the jury. These include the findings which can be made at the trial, the legal and practical consequences of those findings, and a reference to the composition and functions of the Mental Health Review Tribunal, particularly having regard to s.39 of that Act. I consider that it is adequate for present purposes for me to say that I had already informed myself of those matters at the time that I entered my verdicts in relation to these two charges.

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Decision last updated: 25 March 2015