R v Lopez
[2014] NSWSC 287
•21 March 2014
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: R v Lopez [2014] NSWSC 287 Hearing dates: 17/03/2014 Decision date: 21 March 2014 Jurisdiction: Common Law Before: Garling J Decision: Verdict:
1. Not guilty of 3 counts of murder by reason of mental illness.
2. Not guilty of the offences of animal cruelty.
Orders:
(1) Order that Carlos Lopez be detained at the Psychiatric Ward, 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) Direct the Registrar of the Court to notify the Minister for Health of this judgment and order.
(3) Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal with the following documentation:
(a) a copy of these reasons for verdict and orders;
(b) a transcript of these proceedings;
(c) a copy of each of the exhibits tendered at the trial.
Catchwords: CRIMINAL LAW - murder; three counts - act of cruelty to animal; two counts - trial by judge alone - Criminal Procedure Act 1986; s 132, s 133
CRIMINAL LAW - act of cruelty to animal; two counts - Crimes Act 1900; s 530 - physical act established - mental illness - whether the accused could have formed the requisite specific intention of inflicting severe pain on the animal
CRIMINAL LAW - murder; three counts - defence of ental illness - s 38 Mental Health (Forensic Provisions) Act 1900 - whether accused mentally ill at time of offences under M'Naughten Rules - facts agreed by Crown and Accused - expert opinion evidence - psychiatric diagnosis of paranoid Schizophrenia - whether accused knew what he was doing was wrongLegislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990Cases Cited: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659
R v M'Naughten (1843) 8 ER 718
R v Porter [1933] HCA 1; (1933) 55 CLR 182
Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358;
Regina v Matheis (1958) 58 SR (NSW) 321
R v Matusevich & Thompson [1976] VR 470
R v Huy Pham [2007] NSWSC 1313
R v Coles [2008] NSWSC 682
R v Winningham (unreported, NSWCCA, 10 May 1995)Texts Cited: Diagnostic and Statistical Manual for Mental Disorders - 5th Edition Category: Principal judgment Parties: Director of Public Prosecutions (Cth) (Crown)
Carlos Lopez (Offender)Representation: Counsel:
T Thorpe (Crown)
M Ierace SC (Accused)
Solicitors:
Director of Public Prosecutions
Legal Aid NSW (Accused)
File Number(s): 2012/238294
Judgment
Carlos Lopez is accused of murdering his mother, Olga Novosadek, his brother, Raul Novosadek and his step-father, Pablo Novosadek on 29 July 2012, at St Johns Park, NSW.
He is also accused of two offences contrary to s 530(1) of the Crimes Act 1900 of committing an act of serious cruelty and killing two animals, in each case, pet dogs, with the intention of inflicting severe pain.
Mr Lopez has pleaded not guilty to each of these offences.
He has elected to be tried without a jury: s 132 Criminal Procedure Act 1986.
With respect to the three counts of murder (Counts 1, 2 and 3 on the Indictment), both the Crown Prosecutor and senior counsel for Mr Lopez submit that I should return a special verdict in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, of not guilty, upon the basis that Mr Lopez was
"... mentally ill, so as not to be responsible, according to law, for his ... action, at the time when the act was done ...".
With respect to the two counts of animal cruelty (Counts 4 and 5 on the Indictment), the Crown Prosecutor submits that it would be appropriate to return a special verdict, consistently with the verdicts on the three murder counts. Senior counsel for Mr Lopez submits that I would simply return a verdict of not guilty.
Trial by Judge Alone
Where an accused is tried without a jury, s 133 of the Criminal Procedure Act imposes certain obligations upon the judge in reaching a verdict. That section provides:
"(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
Section 133(2) requires me to expose in this judgment my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. This requirement however does not extend to publishing a judgment in the form a summing up would have taken had the trial been before a jury: R v Winningham (unreported, NSWCCA, 10 May 1995).
Section 133(3) requires me to set out any requirement on me to give a warning to the jury, had this trial been before a jury, as well as the reasons why, notwithstanding the warning or in consequence of it, I have reached a particular verdict: Fleming at [28].
Agreed Facts
The Crown and the accused agreed on all of the relevant facts surrounding the deaths in July 2012. The full Statement of Agreed Facts became Exhibit A. What follows is drawn from that statement.
The Initial Scene
As at July 2012 the accused, Carlos Lopez (aged 44), lived at St Johns Park with his mother, Olga Novosadek (aged 61) and his brother, Raul Novosadek (aged 43). His stepfather, Pablo Novosadek (aged 72) resided at 7/28 Park Road Liverpool, although from time to time he visited, or else stayed at the St Johns Park property.
At approximately 7.01am on Sunday 29 July 2012, the accused called 000 and identified himself by name. He told the operator that he needed police to attend his residence at St Johns Park. He told the operator "I killed my family". The operator asked "Have you done it or do you plan on doing it?" He responded "I've done it." The accused then terminated the call.
Police from Fairfield attended at premises at St Johns Park. In a rear bedroom they located the bodies of Olga Novosadek, Pablo Novosadek and Raul Novosadek along with the body of a white dog. The body of another small dog was found in the bathroom. All had been stabbed to death.
In another bedroom police located the accused laying in a bed. He had a wound to his stomach. He was arrested and transported to Liverpool Hospital for treatment.
Events Leading up to the Deaths
As at 2012, the accused was employed as a general labourer for Brightstar, a supply chain and logistics firm. He was employed as a temporary full time casual as a fork/lift driver and store person.
In 2010 people in contact with the accused became aware that he had developed an interest in aliens, religion and the end of the world. About April 2010 John Novosadek, the brother of the accused, observed that the accused started to talk about these topics.
Once the accused began with this interest, it did not let up and increased. The accused became overbearing regarding these topics. Mr John Novosadek recalled that on one occasion the accused told him he had had an extra terrestrial woman come to the house when they were out.
Irma Geronimo (a close friend of the late Olga Novosadek) told police that:
"Around the beginning of 2010, Olga also told me that she was becoming more and more concerned over Carlos. Carlos was talking to Olga and telling her about extra-terrestrials and Carlos had been looking at the internet and looking at websites and she believed he was brain washed by the people that put the information on there."
She also told police that:
"Olga realized that he was becoming obsessed with the subjects and it began to annoy Olga and she would call him crazy and tell him to stop talking about it. Olga never at any time said that she was scared of Carlos and never had any concerns that he would hurt her."
The accused's work colleagues were aware of his interest in religion, aliens and the end of the world. One of his work colleagues told police that, "Carlos had a weirdness about him". People working with him noticed and told her about his mood swings, "he was happy one day and really withdrawn the next", "he would push his religious views on people and believe that the end of the world was coming". She said that despite this he was a good worker and employees were happy to have him there, as none of the incidents were violent or threatening.
Another work colleague told police that the accused was:
"Religious and a big believer in conspiracy theories. He would often ask people if they believed in god. He would talk about the stars, and alien life and such things. I noticed that over time he became more open about talking about these things, especially over the last week or two, and I know he believed in a theory that the world was going to end on the 21st December 2012.
The accused once told him he called himself "Zioba from Zion". He said that on one occasion the accused refused to remove weeds as they were "living objects".
A supervisor at Brightstar who had a work friendship with the accused, recalls that in 2010 the accused started talking about aliens and religion. He would say things like "we are related to aliens and we should respect them". The supervisor's view was:
"At times I felt if I didn't agree with him about these issues he would become more aggressive and try to persuade me to believe the same as him."
At the beginning of July 2012, the supervisor began to notice a change in the accused, in that:
"He started talking fast and apologizing to everyone for insignificant things. He seemed agitated. During one of our chats at morning tea Carlos said to me he used cocaine and weed in the past, about 3 years ago. He went on to say he had cleaned himself up now. He also told he'd had a hard childhood back at home in Argentina."
In early July 2012 the accused began telling people he had he had seen angels. A work colleague told police,
"One morning ..... he came in and was telling everybody that he had seen an angel the night before, and that they were sitting beside him as he was rapidly typing on the computer in the early hours of the morning. He was very emotional and intense when he was talking about it."
On Monday 23 July 2013, the accused approached a work colleague and said:
"Sister can I speak with you for a moment? I have something to tell you. This might be the last time I speak with you as I may not be around much longer. I just want to tell you who I really am. My name is Zioba. I'm a Zionite. My physical name is Carlos. I'm only here for a short time."
On the same day the accused approached a security guard at his workplace. They had a conversation, during which the accused said:
"Last night two angels came to me. I could see them from my peripheral vision, they showed so much love and compassion. I have never felt that feeling before."
The security guard observed that the accused was starting to cry when he told him this.
After an incident at work on Thursday 26 July 2012, the accused was asked to leave the premises. Two work colleagues heard about the incident and attended the premises to speak to the accused. The accused approached one of them and said "There is a battle between good and evil and everything will end in December 21st 2012". He stated "We need to look inside ourselves, our souls."
The accused said to the other work colleague:
"you have love in your heart, you need to have love brother, it's the only way, I'm leaving now there is too many people in there that don't have love in their hearts. They will learn that the end of the world is near I've been send on this earth by god himself. You don't have to understand me brother, the world is going to end."
As a result of the incident, later that afternoon, a work supervisor telephoned the accused to inform him he was not to return to his employment. During the conversation, the accused said to his supervisor words to the effect of:
"My soul is now free, I was sent on the earth by god and that god is Zenu who has ruled the earth for more than 13 thousand years. The world will end on 21st of December with a new moon on 13 December to give us signs. No one is doing the right thing. No one has love in their hearts. Everyone is sinning and doing the wrong thing. I was sent to the world to solve the worlds problems, I don't expect you to understand because you weren't sent, but I was so I do understand this. My soul is now free. Maybe one day yours will be too."
Detailed Account of the Evening of the Deaths
At 7.45pm on the night of 28 July 2012 the accused was at home with Olga Novosadek and Raul Novosadek.
At approximately 7.45pm Olga Novosadek rang her friend Irma Geronimo. She told police that they spoke until 8.30pm. Olga told her that she was at home with the accused and Raul. Irma felt that Olga sounded down and questioned her about what was wrong. Olga responded "You can't imagine the hell I'm living now". Irma asked "Why"? and she responded "Carlos". She said that he was at home and lowered her voice, she disclosed to Irma "I'm sick of him. Constantly he comes and hugs me and kisses me, saying that he is all love, he's the light, the extra-terrestrials are here and they are reptilians". She detailed:
"I went with Carlos and Raul to look for a car. Carlos' behaviour at the car yard was shocking, he was talking about this extra-terrestrials things and I was upset. He was touching people and making them turn around and he made me feel very embarrassed, He was telling people he was 'Ziobia' and the war will finish in the end of December and he loves everybody."
Olga stated that she could not take it anymore and that a few days prior she had slapped him and told him "Stop talking nonsense." She said that Carlos responded saying "I love everybody even my brother Hugo, I love him too".
It appears that Pablo Novosadek was out earlier in the evening at a barbeque as Olga informed Irma in the telephone conversation
"I'm concerned because I lent the car to Pablo and he had to go and cook a barbeque for a soccer club and I know that he drinks and I'm scared he will drive with alcohol."
At some time that evening Pablo returned to Olga's residence. The time of his return is not known.
Later that evening Raul Novosadek left and attended Panthers Club on Brisbane Street, St Johns Park. He was driven to the club and later picked up from the club by one of his family members. This club is approximately a two minute drive from the accused's premises. The Crown case was that Olga picked Raul up from the Club and returned home about 2.30am and that the murders of the family occurred shortly after they returned home.
At some time during that evening the accused stabbed each of the three deceased to death.
Olga Novosadek was lying on the floor on her right hand side at the foot of her bed with her head facing towards the bedroom door. She was fully clothed. The body of a small dog (the family pet) was located upon her body. Raul Novosadek was lying face down with his head towards the bedroom window facing away from the bedroom door. He was clothed. Pablo Novosadek was at the left hand side of the bed with his back against the wardrobe doors and his legs up on the mattress of the bed. He was dressed only in a pair of black underwear.
All three deceased were observed to have multiple stab wounds to their bodies, including the chest, face and back areas.
The body of another small dog was located in the bathroom.
The precise time that the accused killed his family and the dogs is unknown.
The accused at some later stage inflicted wounds to his stomach. He contacted 000 at 7.01am. Constable Burrow, Constable Dippert and Constable Jones were among the first to arrive at the scene after responding to the broadcast. Constable Burrow approached the front door, which was open. The security door was closed. Loud music could be heard coming from within the unit. Police knocked on the door and called out "Police". There was no answer. Looking in they could see red smudge marks that appeared to be blood on the floor.
The police officers entered the premises and walked along the hallway clearing the living room. They continued to an open bedroom door at the end of the hallway. They noticed the music was getting louder. They located the accused inside the room lying on the bed on his back with his face facing the door. Blood stains were visible on his jumper. Constable Burrow asked "Mate are you ok?"
The accused lifted his right hand and police observed him to be holding a knife. He was told to drop the knife. The accused responded "Just shoot me." Constable Burrow said "Drop the knife put it on the bed". The accused waved the knife around slowly in his right hand. Police observed he appeared to have blood on his hands.
Constable Jones moved to clear the house and in so doing located the bodies in the bedroom.
Further police arrived. They assisted Constable Burrow in his attempts to have the accused drop the knife. After repeated instructions for the accused to drop the knife the accused said again "Just shoot me". Constable Burrow said "I'm not going to shoot you. I'm going to Taser you if you don't drop the knife". The accused was again repeatedly asked to drop the knife. Police removed a blanket from him and observed a wound to his chest which was bleeding.
A police officer deployed his Taser and hit the accused before another police officer struck him on the right wrist to cause him to drop the knife. The accused was handcuffed, and arrested.
Whilst outside the front of the premises the accused had a number of conversations with police officers. He told one police officer that he had killed his family and the dogs "... to save them". He told another police officer that "... Satan killed them" and that he was Satan.
Shortly after these conversations, ambulance officers arrived. The accused was then taken to Liverpool Hospital where he was assessed and underwent emergency surgery to repair the stab wound to his stomach.
Conversations with the Accused at the Hospital
On 29 July 2012, Detective Senior Constable Peter Badger was on guard at Liverpool Hospital. Late in the afternoon the accused regained consciousness and begun making random statements. He said these words to the police officers:
"I tried to do the right thing for humanity, but failed", "It's all about the vibration of frequency"... "Satan for 3000 years,. I became aware Satan was jumping between bodies ... if he did not have a body he did not have a host."
Later that afternoon, the accused said:
"If we get rid of the darkness there will be peace. That's why I tried to kill myself, I tried to do the right thing for humanity but failed. Its all about vibration of frequency, Satan for 30,000 years, I became aware, he, Satan , was jumping between the bodies. Between Mum, Dad, Raul and the dogs. I thought if he didn't have a body he didn't have a host. Satan is like a commander, in charge of humans. And these humans feed off negative energy."
The police officer said to the accused "What did Satan say?" The accused said
"Satan wasn't saying nothing. I wasn't giving him a chance. He was jumping from body to body. Every living thing is energy. Every time I said Mum, mum I love you. She would say leave me alone you're crazy. I had a job to do. To Kill Satan his number is 666. I failed my mission."
He said "Why"? The accused responded "I didn't kill Satan. He's inside me now. If he's inside me you're all fucked now."
Early in the evening, after a considerable number of essentially meaningless and nonsensical statements, the accused said to the police officer:
"All we are you and I is energies, there is no death it is only a transition of energies. My soul comes from Zion and I am a Zionist. I am incarcerated for this reason. But I failed in my mission because I didn't kill myself."
Post-mortem Examination of Deceased
Dr Matthew Orde carried out a post mortem examination on each of the deceased. He found that the direct cause of death in each case of each of the deceased members of the Novosadek family was multiple stab wounds.
He observed that some of the injuries to Raul Novosadek and Olga Novosadek to the left arm and hand "would be in keeping with defensive injuries". Dr Orde also determined in each case that a number of significant wounds were inflicted after death.
Factual Conclusions: Murder Charges
From all of the Agreed Facts, I am satisfied, beyond reasonable doubt, that, in the early hours of 29 July 2012, Mr Lopez, the accused, stabbed each of his three family members on multiple occasions, thereby causing their deaths. I am satisfied that he did so, intending to kill each of them.
I am satisfied of his intentions beyond reasonable doubt because, first, that is what Mr Lopez told those to whom he spoke after the events, and, secondly, because of the number of stab wounds inflicted on each of his family members, the locations where those stab wounds were inflicted, and the fact that each of the family members sustained defensive wounds, indicating that they resisted the violent attack upon them. These two features combine to make it plain that the killings occurred at a time when Mr Lopez was acting with the intention of killing each of his family members.
But for the defence of mental illness to which it will be necessary to come, I am satisfied, beyond a reasonable doubt, that all elements of the offence of murder, in respect of each of the victims, which constitute the first three counts on the indictment, have been proved by the Crown.
Indeed, senior counsel for Mr Lopez did not submit to the Court that such findings ought not be made, nor did he present any argument which cast any doubt on these being the appropriate findings.
Factual Conclusions: Animal Cruelty
An analysis of s 530 of the Crimes Act, shows that, in order for a court to convict a person of an offence against the section, it is necessary for the Crown to prove beyond reasonable doubt that each of the three relevant elements are present. Those three relevant elements are:
(a) that the accused committed an act of serious cruelty on an animal; and
(b) killed the animal, whilst so doing, or else as a consequence of so doing; and
(c) at all times, acted with the intention of inflicting severe pain on the animal.
It is clear that the offence is one of specific intention, namely to inflict severe pain on the animal. The offence involves conduct, namely committing an act of serious cruelty on an animal, and a result, namely that the animal is killed, injured or has prolonged suffering occasioned to it.
There is no doubt, and the Agreed Facts establish that two dogs were stabbed and killed.
The Crown submitted that the Court could be satisfied beyond reasonable doubt that the stabbing caused the death of each of the two dogs, and that stabbing a dog constituted an act of serious cruelty as required by the provision.
Senior counsel for Mr Lopez did not put these matters in issue, and accepted that the Court could make such findings, beyond reasonable doubt. I do so.
However, senior counsel for Mr Lopez submitted that, particularly in light of the mental illness of Mr Lopez at the time of the conduct, and the evidence of Professor David Greenberg, the Court could not be satisfied beyond reasonable doubt that, at the time he stabbed and killed each of the two dogs, Mr Lopez had formed a specific intention to inflict severe pain on each of the dogs.
The Crown submitted that the Court would infer the presence of such an intention from the acts carried out by Mr Lopez, which caused the death of the dogs. In essence the Crown submitted that the Court should be satisfied beyond reasonable doubt that by stabbing each of the dogs, Mr Lopez had the necessary intention to inflict severe pain.
It was not in contest that stabbing each of the two dogs would inflict, objectively speaking, severe pain on the animals. Nor was it in contest, as I have said above, that this constituted an act of serious cruelty. Nor was it in contest that each of the dogs died at the hands of the accused, Mr Lopez.
Professor Greenberg was specifically asked about whether, in his expert opinion, at the time of these offences, Mr Lopez was capable of forming a specific intention to cause severe pain to the animals.
Professor Greenberg expressed the view that Mr Lopez felt morally justified in doing what he did, at a time when he was suffering not only delusions, but also disorganised thinking. He said that any intention which Mr Lopez had was based on his delusional belief system.
In light of the evidence of Professor Greenberg, I cannot be satisfied beyond reasonable doubt that at the time he killed the dogs, Mr Lopez had a specific intention of inflicting severe pain on them. I am abundantly satisfied he intended to kill the dogs. However, having regard to his mental state, and the need for me to be satisfied that he had the specific intention of inflicting severe pain, I cannot be satisfied of that beyond reasonable doubt.
Accordingly, in due course, it will be appropriate to enter a verdict of not guilty with respect to each of these offences which are Counts 4 and 5 on the indictment.
Mr Lopez's History and Mental State
The mental history and state of Mr Lopez was proved through the expert reports of Dr Richard Furst, a consultant forensic psychiatrist, written on 9 December 2012, and also that of Professor David Greenberg, also an expert forensic psychiatrist, written on 19 October 2013.
Dr Furst examined Mr Lopez on 10 October 2012, for a period of about 90 minutes. Professor Greenberg examined Mr Lopez for a similar period on 5 October 2013. There is no significant disagreement between each of the experts. The fact that their reports are about 12 months apart, provides the Court with a comprehensive psychiatric account of Mr Lopez since he has been in custody.
I am satisfied that I should approach the histories provided to the psychiatrists, although principally admitted for the purpose of demonstrating their psychiatric opinions, as evidence of the truth of what the psychiatrists were told: s 60 Evidence Act 1995.
Mr Lopez was born in February 1968 in Cordoba Province, in Argentina. He was the eldest of four boys, two of whom are now dead. His father worked as a chef, and his step-father worked in the construction industry. He migrated to Australia in 1980 or 1981.
He attended primary school in Argentina, and then upon arrival in Australia, attended his local high school. He apparently struggled to adjust to life in Sydney and left school before gaining his School Certificate. He subsequently worked with his step-father in the construction industry. His mother, although initially carrying out some paid employment, mostly stayed at home to look after his brother Raul, who, having suffered from a ruptured cerebral aneurism, had been disabled for some significant period of time.
Mr Lopez has never married and has lived with his mother and brother since being in Australia.
Mr Lopez provided a history of sexual abuse to both psychiatrists. The abuse occurred when he was about four or five years old, whilst in Argentina, and consisted of two occasions when he was the subject of anal intercourse at the hands of his 12 year old neighbour. This has caused ongoing trauma, including nightmares and anxiety.
With the exception of the fact that his mother suffered from depression, as did his brother Raul, for which medication was being taken, there is no history of mental illness in Mr Lopez's family so far as he was aware. It is unclear, since he has no relationship with his biological father, who remains in Argentina, whether his biological father suffers from any psychotic disorder.
Mr Lopez has taken drugs since he was aged 14 years old. He commenced smoking cannabis at that time, and by his early 20s he was smoking cannabis on a daily basis. This continued regularly up until he was arrested. Occasionally, there would be periods of time when he ceased his cannabis use.
As well, Mr Lopez has used other drugs, including heroin, on one occasion, amphetamines, cocaine and ecstasy. He commenced to drink alcohol at the age of 18, and by his early 20s he was binge drinking up to 24 beers on a weekend. As a consequence of this level of drinking, he has had alcoholic blackouts and alcoholic shakes.
From a time, about two and half to three years prior to his arrest, Mr Lopez had been hearing voices. The first such episode, as described to Dr Furst, occurred whilst he was sleeping. He heard a voice saying "Carlos, wake up". He remembers opening his eyes and seeking a figure on top of him like a "dark shadow". He said "that figure was like a chimpanzee trying to scratch my chest. I stood up and jumped out of the window".
He told Dr Furst that he interpreted the experience as a "visit from inter-dimensional extraterrestrials, which were demons of a negative nature". He regarded this incident as a form of an epiphany, which led him to the realisation that "... we are not alone in the universe". He commenced to research information about unidentified flying objects ("UFO"), angels, aliens and extraterrestrials. He became pre-occupied with UFOs and extraterrestrial life, which preoccupation led him to recall an incident about 20 years earlier when he saw a bright object in the sky when two sets of clouds parted, which he now interpreted as being a UFO.
Such was his addiction to research on the topics of his pre-occupation, mainly on the internet, specifically on YouTube, that he would only sleep about three and a half hours per night, even though he was fulfilling full-time employment as a forklift driver.
In the course of his research, Mr Lopez came to believe that the world would come to an end on 21 December 2012. He researched this doomsday prophecy on the internet. Apparently, according to what he told Professor Greenberg, the date of 21 December 2012 was a well-known date in the Mayan Calendar.
Such was his addiction, and obsession with these topics, that his mother confided to a friend that she believed that Mr Lopez had been brainwashed by advocates of extraterrestrial beings. She told her friend that "Carlos was still talking about God, love, peace and aliens and it was driving her mad".
In addition to the history provided by Mr Lopez, Professor Greenberg referred to a number of the passages in the Agreed Facts upon which he placed reliance. I will shortly summarise those matters here.
Mr Lopez's interest in religions, aliens, extraterrestrials and the end of the world, became apparent to his work colleagues. They observed that he would push his views onto his fellow workers, he expressed strongly his belief that the world was coming to an end and that, although he was a good worker, and was not in any way violent or threatening, he was observed to have significant mood swings. At one stage he told one of his fellow workers that he was actually called "Zioba from Zion". He also expressed the view that it was wrong to remove weeds from the ground as they were living objects.
By July 2012, the accused's behaviour at work and towards his work colleagues had become more erratic. One of his fellow workers observed that the accused seemed to have started to talk very fast, he was apparently agitated, and was constantly apologising to people for insignificant things.
At about that time, Mr Lopez began to tell his fellow workers that he had seen angels during the night, sitting beside him as he was "rapidly typing on the computer". He became very emotional and intense whilst talking about these things. He confessed to his fellow workers of not having had much sleep, and generally behaved in a way which caused his fellow workers a significant degree of concern.
As a result of this erratic behaviour, his employment was terminated.
When his employer called Mr Lopez to inform him of his ultimate termination as an employee, Mr Lopez spoke to his employer using the following words:
"... my soul is now free, I was sent on the Earth by God and that God is Zenu, who has ruled the Earth for more than 13,000 years. The world will end on 21 December, with a new moon on 13 December to give us signs. No one is doing the right thing. No one has love in their hearts. Everyone is sinning and doing the wrong thing. I was to the world to solve the world's problems, I don't expect you to understand because you weren't sent, but I was, I do understand this. My soul is no free. Maybe one day, yours will be too."
The psychiatrists were of the opinion that some insight into Mr Lopez's mental state could also be gained from conversations which he had after the events in question, together with actions which he took. I have reviewed the substance of the conversations earlier in this judgment and also his attempt prior to telephoning 000 to kill himself.
Expert Opinion
When he was interviewed by Dr Furst, he gave this account of the killing of his family. He said:
"... that he stabbed his brother in the heart, only to see the inter-dimensional being jump from his brother to his mother, into his step-father and then into the two dogs. He said 'I was chasing these negative beings. I thought I was doing the right thing for humanity. I thought if I could release them from my family I would protect society. It was like a haze ... a dream. The music on the radio was spurring me on'. "
When interviewed by Professor Greenberg, Mr Lopez told him that he had limited recall of the events surrounding the killing of his family. Professor Greenberg records the history which he obtained from Mr Lopez in these terms:
"Mr Lopez claims that he does recall that he believed that he could not protect his family from the 'inter-dimensional demons' and 'negative beings'. He claims that these demons were like shadows and they possess a person by sending 'negative vibes' into the person. He claims that he believed at that time that when these inter-dimensional beings inhabit a person's body, and the person then gets all negative energy. He claims that the aliens 'feed off the person with negative energy'. "
He told Professor Greenberg that he could not stop himself from undertaking the acts killing his family members and the two dogs. He repeated to Professor Greenberg that he felt that he had to protect them. He specifically said "I felt I was doing the right thing to protect them".
Dr Furst in his report, expressed the following expert opinion:
"Mr Lopez presents as a 44 year old male who has a history of untreated psychotic symptoms of about 3 years duration, mostly involving a preoccupation with extra terrestrial life, 'inter-dimensional beings', and religiose attributions to those 'beings'. He appears to have spent increasing amounts of time researching UFOs and similar themes on the internet, to the point that he was obsessed and paranoid. His behaviour at work deteriorated, with an apparent dramatic decompensation 2 weeks before the offences in question ... that led to his employment being terminated.
He appears to have developed overwhelming delusional beliefs and thought he and his family were being attacked by 'inter-dimensional beings of a negative nature'. He also heard two 'gun shots' which were probably auditory hallucinations reinforcing his beliefs.
...
He apparently saw the 'inter-dimensional being' jump from his brother to his mother, into his step-father and then into the two dogs, making it likely he experienced visual hallucinations.
In my opinion Mr Lopez was labouring under a defect of reason in the form of paranoid and religiose delusions that involved his family, their dogs and himself. He also had symptoms of both auditory and visual hallucinations and delusions of reference. He was suffering from the acute phase of paranoid schizophrenia at the time, which had probably been present for 3 years leading up to the offence, and is still present in residual form at the current time.
Schizophrenia has been recognised at law as a disease of the mind. He was aware of his actions but believed they were morally justified to protect his family and society at large. He was unable to reason about the wrongfulness of his actions with a moderate degree of sensible composure."
Professor Greenberg expressed this opinion:
"Mr Lopez has a Paranoid Schizophrenic Disorder. He appears to have gradually developed a systemized, religioused and paranoid over valued belief system about UFOs, aliens and 'inter-dimensional beings' over a period of approximately 3 years prior to the alleged offences. This culminated in an episode of psychosis with systemised and religioused paranoid delusions; at times he may have experienced auditory hallucinations; and he has presented with grossly disorganised behaviour at the time of the offences.
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I am of the opinion that Mr Lopez was suffering from a mental illness (disease of the mind), namely, a paranoid schizophrenic disorder at the time of the alleged offences. I am of the opinion that his use of cannabis may have exacerbated or aggravated his delusional belief system at the time of the offence. I am of the opinion that in view of the duration and intensity of the psychotic symptoms, his diagnosis is not that of a drug induced psychosis, although his use of drugs likely played a significant role in the precipitation or the onset of the psychosis. I am of the opinion that Mr Lopez is suffering from a schizophrenic disorder. At the time of the offences, he reportedly presented bizarre, systemised, religioused, grandiose and spiritual delusions. He also presented with grossly disorganised behaviour, and possibly had auditory hallucinations.
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I am of the opinion that at the time of the alleged offences, Mr Lopez was labouring under a defect of reason caused by a disease of the mind. Mr Lopez believed that 'inter-dimensional beings' had invaded his family members bodies, and he stabbed these family members and two family dogs to save them and protect them from being invaded and hosted by these negative, inter-dimensional beings.
I am of the opinion that Mr Lopez did not know the nature and quality of his actions at that time period. There was a malfunction of capacity for rational thought at that time period.
I am of the opinion that at the time period of the alleged offences, Mr Lopez did not know that his actions were wrong. He believed that he was morally justified in his actions because he was trying to protect and save his family members from these inter-dimensional beings'. "
I accept the expert opinions of Dr Furst and Professor Greenberg. Neither party submitted that I should not.
However, I should say that I have formed the opinion that both of these experts have undertaken their task diligently and thoroughly. Their opinions are unqualified and seem to me to be properly based upon the material which they had. As well, the opinions accord with the inexpert and untutored view which I would have reached as a matter of common sense.
As the tribunal of fact I am not bound by the opinion of any expert witness or any number of expert witnesses. However, this is a circumstance in which the expert witness engaged by the Crown, and whose evidence was not challenged by the accused, and the expert witness called by the defence, agree with each other. In those circumstances I should not reject the unanimous opinions of the expert witnesses unless there is evidence before me which would cast doubt on those opinions: R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Michael Grove J.
Should a Special Verdict be Found?
The issue to which I now turn my attention is whether that mental illness which I am satisfied beyond a reasonable doubt existed, was sufficient to satisfy the legal tests to enable a special verdict to be found.
Before I do so, I note that, had the proceedings been heard in a trial with a jury, there would have been an obligation on me to inform the jury of the legal and practical consequences of a special verdict. I bear all those matters in mind in considering my verdict in this case. In particular I note, and have regard to, the following matters:
(a) if my verdict is "not guilty by reason of mental illness", I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community.
(b) if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by due process of law. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes a forensic patient and falls under the supervision of the Mental Health Review Tribunal.
(c) the composition and functions of the Mental Health Review Tribunal, including its obligation to review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody, its obligation to review the patient at least once every six months, and its obligation not to release a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release.
The real issue in this trial is whether the accused has available to him the defence of mental illness. The defence is a matter for the accused to establish, not beyond reasonable doubt, but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. If the accused does establish the defence of mental illness, then a special verdict is to be returned.
Section 38(1) of the Mental Health (Forensic Provisions) Act provides:
"38 Special verdict
(1) If, in an indictment ..., an act ... is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his ... action at the time when the act was done ..., then, if it appears to the jury before which the person is tried that the person did the act ..., but was mentally ill at the time when the person did ... the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness."
That section, and the Act, do not provide any definition of the term "mentally ill". The meaning of that term is determined in accordance with the M'Naghten Rules: R v M'Naughten (1843) 8 ER 718 at 722:
"Every man is presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, unless the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong."
In order to persuade the Court to return a special verdict, it is necessary for Mr Lopez to persuade me, on the balance of probabilities, that at the time he killed his family, he was suffering from a mental illness, which led to a defect of reason such that he did not appreciate the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.
There can be little doubt in this case that Mr Lopez knew the nature and quality of the acts which he was doing to kill his family members. The evidence discloses that he took a knife, and stabbed each of his three family members intending to kill them. The number of stab wounds, and the defensive wounds sustained by two of the members of Mr Lopez's family, are an obvious indication of that which he was doing. It was a brutal, vicious, unconstrained, and ultimately fatal, assault by Mr Lopez on each of his family members.
When asked to account for his actions, he told police, and ultimately the psychiatric experts, that he intended to kill his family members. There is simply no doubt that he knew the nature and quality of his act.
Equally, there is no doubt, based upon the expert evidence and the observations of what he was doing and saying in the three years or so leading up to the killings, and in particular in the days and weeks before, that Mr Lopez was suffering from an undiagnosed mental illness, being paranoid schizophrenia. Paranoid schizophrenia is an illness recognised by the Diagnostic and Statistical Manual for Mental Disorders - 5th Edition, and is well accepted as a mental illness.
The question then becomes whether, even though Mr Lopez knew the nature and quality of his acts, he has persuaded me on the balance of probabilities that by reason of his mental illness that he did not know that what he was doing was wrong.
I am abundantly satisfied that Mr Lopez did not know what he was doing was wrong. I am so satisfied because I accept the account of the police officers and others who have interviewed or spoken to Mr Lopez about what happened, who have recorded that he told them that whilst he intended to kill his family, he was doing so in order to protect them. As well, I have taken into account, and I accept, the expert evidence of Dr Furst and Professor Greenberg that such was the effect of the psychiatric disorder, that Mr Lopez did not know that what he was doing was wrong. Rather, the effect of the psychiatric disorder was that he thought that what he was doing was right.
This issue is raised by the second part of the M'Naughten Rules. It is necessary here to remind myself of the proper direction which would in substance be given to a jury on this issue. I do so by reference to legal authority.
In R v Porter [1933] HCA 1;(1933) 55 CLR 182 at 189-190, the test was formulated by Dixon J in the course of his summing up to a jury in these terms:
"The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression 'disease, disorder or disturbance of the mind.' That does not mean ... that there must be some physical deterioration of the cells of the brain ... you are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.
Then I have used the expression 'know', 'knew that what he was doing was wrong'. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged."
The terms of this explanation of the second part of the M'Naughten test has been judicially approved: Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson [1976] VR 470 at 477 per Young CJ, Starke and NelsonJJ.
It is appropriate that I regard what Dixon J said as a practical synthesis of the concepts involved, and have regard to it, in undertaking the task which follows.
I have relied heavily on the expert opinions of Dr Furst and Professor Greenberg. Both counsel for the Crown, and senior counsel for the accused, submitted that I should accept these opinions, and hence I should be satisfied that Mr Lopez has available to him the defence of mental illness because he did not know, in all of the circumstances, that what he was doing was wrong.
In all of the circumstances, I consider that I should accept the expert psychiatric evidence and I am satisfied on the balance of probabilities that at the time he killed each of the three members of his family, the accused, Mr Lopez, did not know that what he was doing was wrong. Accordingly, he was mentally ill, and a defence under s 38 of the Mental Health (Forensic Provisions) Act has been established.
The consequence of finding in the accused's favour on the defence of mental illness is that I return a verdict of not guilty on the ground of mental illness. One possible consequence of that is that the accused could be discharged, either conditionally or unconditionally, into the community. Neither the Crown, nor senior counsel for Mr Lopez submitted that in all of the circumstances of this case, this would be appropriate. It clearly would not be appropriate.
What will happen in this case is that the accused will be detained in custody until he is released by due process of law. In other words, he will remain in custody and be held as a forensic patient and come under the supervision of the Mental Health Review Tribunal.
In coming to my decision as to the appropriate verdict, I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. His case will be reviewed by the Tribunal as soon as practicable and, if further detained, his case will be reviewed at six monthly intervals. If at some stage the accused is released, it may be on conditions that if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained.
My conclusions are:
(a) I am satisfied beyond reasonable doubt that the acts of the accused Carlos Lopez on 29 July 2012 caused the death of each of Olga Novosadek, Raul Novosadek and Pablo Novosadek.
(b) I am satisfied on the balance of probabilities that at the time of those killings the accused was labouring under such a defect of reason from a disease of the mind that he did not know that what he did was wrong.
Verdict
I find the accused not guilty by reason of mental illness with respect to Counts 1, 2 and 3, being offences against s 18 of the Crimes Act 1900.
In respect of Counts 4 and 5, being offences against s 530 of the Crimes Act 1900, I find the accused not guilty.
Orders
I make the following orders pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990:
(1) Order that Carlos Lopez be detained at the Psychiatric Ward, 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) Direct the Registrar of the Court to notify the Minister for Health of this judgment and order.
(3) Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation:
(a) A copy of these reasons for verdict and orders;
(b) A transcript of these proceedings;
(c) A copy of each of the exhibits tendered at the trial.
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Decision last updated: 21 March 2014
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