R v Polanski

[1999] NSWSC 433

CITATION:	R v Polanski [1999] NSWSC 433 revised - 31/08/99
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70017/98
HEARING DATE(S):	3-5/5/99
JUDGMENT DATE:	5 May 1999
PARTIES :	Crown Rafal Polanski
JUDGMENT OF:	Wood CJatCL

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	G.E. Smith (Crown) J. Nicholson SC (Accused)
SOLICITORS:	DPP Legal Aid
CATCHWORDS:
DECISION:	Unfit to Plead

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
No. 700017/98

WOOD CJ at CL

WEDNESDAY 5 MAY 1999

REGINA V RAFAL POLANSKI

JUDGMENT

1 HIS HONOUR: This matter comes before the Court as an inquiry into the fitness of the accused to be tried for the offence of murder of which he has been charged. The case is one in which a question as to his fitness to be tried arose prior to arraignment and the inquiry has been conducted following a direction from the Attorney-General pursuant s 8(1) of the Mental Health (Criminal Procedure) Act 1990.
2   The accused has elected for this issue to be tried by Judge alone following advice which I am satisfied was given to him by his solicitor.
3   As the Court of Criminal Appeal said in Mifsud, unreported, 8 November 1995, for an accused to make such an election he or she must not only receive that advice but must also understand what is involved in the election.
4   Notwithstanding some initial concerns in this regard I am, in this case, satisfied that the accused had sufficient capacity to understand, and did understand, what was involved and gave instructions for the matter to proceed Judge alone. This follows from the evidence of his solicitor, from the report of Dr Thompson and from the accused's indication that he would accept the advice which Mr Nicholson, of Senior Counsel, said was given to him, that it was preferable for the issue to be heard by Judge alone.
5   It is alleged by the Crown that the accused killed one Jozef Zimmer in a boarding house where that man lived during the evening of 18/19 October 1997. In substance, it is the Crown case that the accused, who had been drinking at the Polish Club, from which he had earlier been evicted, went with Mr Zimmer to the boarding home to sleep. There it is alleged that he struck him on the head several times with a fire extinguisher before stabbing him in the back, ransacking the flat and stealing several items of the deceased's property. It is alleged that the accused covered the body of the deceased with a mattress and other items.
6   In an ERISP he admitted to being responsible for striking the deceased with the fire extinguisher but said that he did so in circumstances where he was heavily intoxicated and where he was fearful of being raped by the deceased. Just prior to the attack he said that the deceased had played a pornographic video displaying homosexual conduct between males and had propositioned him for oral sex in return for $50.
7   In order to determine the application I need to instruct myself as to the regime established under the Mental Health (Criminal Procedure) Act.
8   The question of unfitness is to be determined as at the date of trial, in a non-adversarial manner (s 12(2)) and upon a balance of probabilities (s 6). The onus of proof on the question of fitness to be tried does not rest upon any party (s 12(3)). The findings open are that the accused is fit to be tried or unfit to be tried for the offence of murder and, I would add, for the statutory alternative of manslaughter that might arise on the facts of the case.
9   If the accused is found fit to be tried then his trial can proceed as normal (s 13). If he is found unfit then he is to be referred to the Mental Health Review Tribunal (s 14) which is then tasked with determining whether, on a balance of probabilities, he will within a period of twelve months after the finding of unfitness become fit to be tried (s 16(1)).
10   If it comes to that conclusion then the Tribunal must also determine whether he is suffering from mental illness or from a mental condition for which treatment is available in a hospital (s 16(2)). It is required to report its determination to the Court (s 16(3)). If the Tribunal determines that the accused will not be fit to be tried within the period of twelve months then it must notify the Attorney-General and the Director of Public Prosecutions accordingly (s 18).
11   The orders that the Court may make following a determination under s 16(1), that the accused will be fit within twelve months to be tried, are as set forth in s 17 and include orders for bail and detention in a hospital or other place. Where the determination is one of unfitness within twelve months to be tried, then the Attorney-General may, with the advice of the Director of Public Prosecutions, direct that a special hearing be conducted in accordance with ss 18 and 19 of the Act. Alternatively, the Attorney may advise the Minister for Police and Emergency Services and the Court that the accused will not be further proceeded against in respect to the offence charged, in which event the Court must order his release (s 20).
12   If a special hearing is directed then it is to be conducted in accordance with the provisions of ss 19 and 21 to 26 of the Act. The subsequent management of a person in respect of whom a special hearing has been conducted, including the conduct of a further trial in the event of him having been determined by the Tribunal at a later date to be fit, is provided for under ss 24(2) and (3) and ss 27 to 30 of the Act.
13   I have, accordingly, instructed myself in relation to the various consequences of a fitness inquiry as well as the reasons for such an inquiry. In that latter regard it has been recognised that it is unfair to place a person upon trial unless he or she is fit to be tried in accordance with the principles which have been established in that regard.
14   The matters to be taken into account in determining the question of unfitness are as stated in Presser (1958) VR 45 at 48; Dennison, CCA, 3 March 1988, unreported, and more recently in Kesavarajah (1994) 181 CLR 230. Although expressed in somewhat different terms, these decisions show that the accused is to be found unfit, if by reason of a mental illness or a mental condition, a conclusion is reached upon the balance of probabilities that:

(a) he would not be able to understand the nature of the charge that has been brought against him so as to formulate a plea to it;
(b) he would not be able to understand the nature of the proceedings which are being conducted in respect of him; that is, that they are an inquiry as to whether he committed the offence charged;
(c) he would not be able to understand or follow the proceedings; that is, to understand what is going on at the trial or the effect of the evidence given in support of the prosecution case;
(d) he would not have sufficient understanding to enable him to give proper instructions to his legal representatives so that he may properly defend the proceedings;
(e) he would not be able to decide what defence he would rely upon and make that defence, and his version of the facts, known both to his counsel and to the Court.

15   In Kesavarajah the majority also emphasised that the question of unfitness is to be determined in the light of the estimated duration of the trial. In this case, Senior Counsel for the accused indicated that he anticipated a trial of three weeks duration in which issues would be likely to arise as to self-defence, diminished responsibility and provocation, in respect of which the contributory effects of intoxication might also be relevant.
16   The evidence concerning the possible unfitness of the accused in this case is not all the same way. It is, therefore, necessary to record some of his history since that appears to me to be of considerable relevance for the opinions from the expert witnesses which were placed before me.
17   The accused is now aged twenty-four years. His childhood was somewhat disturbed in that his parents were not married until he was five years old; in that his paternity was disputed; in that his father was a man who was violent in drink and totally lacking in parental affection. His parents separated soon after their wedding at which point the father migrated to Australia. Some time later his mother brought the accused out to Australia but the reconciliation, if that is what it can be called, was apparently brief and punctuated by rows and alcohol abuse.
18   The accused was said by his mother to have been a difficult child who could not concentrate at school and who was unable to finish a building construction course into which he had been streamed. He began to use drugs and to drink heavily, according to her. At the age of eighteen years he admitted himself to a psychiatric hospital in Jaroslaw with complaints of anxiety, nightmares, fears of cardiac problems and self-destructive feelings.
19   Psychological testing, while not disclosing any symptoms of frank psychotic disorder, did throw up some results which were suggestive of him having a deficiency of moral and social feelings of a psychopathic kind, of him being socially maladjusted and of having "very high results in the scale of schizophrenia". He was recorded as being a gloomy loner who was at time arrogant and disobedient and at other times calm and co-operative. He was prescribed anti-depressants and was diagnosed as having an "abnormal personality".
20   He struck up a friendship with only one other person, an older drug user and eventually he discharged himself, leaving the hospital with that person.
21   His reported symptoms of delusions in the form of monkeys, snakes and other creatures getting into and attacking his head were noted but they were not confirmed by observations. The history recorded that the possibility of a simulation of mental disorder had not been excluded. Among the matters recorded, however, which are of current significance were his concerns as to his lack of a girlfriend, a circumstance that he blamed on his mother; his masturbatory pre-occupation, which he put down to an excess of hormones; his concerns with impotence; his fears that his “sexual side was not in order”; his inability or unwillingness to undress in front of others and his demands for an appointment with a urologist because he believed there was something wrong, which he was not prepared to disclose, with his genitals.
22   The history he has provided to those who have seen him in Australia, as was also recorded in Jaroslaw, has not always been consistent; for example, as to whether or not he used drugs and as to whether or not he has ever in fact had a girlfriend. So far as it can be relied upon, it suggests that in this country he has worked in various jobs, most consistently as an assistant painter working with a team of fellow countrymen.
23   A statement from one such worker, Pawel Pastenak, which mirrors a report from another worker noted by Dr Canaris, records that from about mid-1997 the accused could be seen repeatedly talking to himself while working, repeatedly using the words "whore", and "dick", sometimes up to five minutes at a time. Mr Pastenak said that the accused did not communicate with his fellow workers in any meaningful or social sense and described his answers as tending to be monosyllabic. He said he observed him to have difficulty establishing any relationships either with other men or women. His work practices were said to be somewhat unsatisfactory, it being noted, for example, that he tended to miss obvious pieces of wall, that when asked to “cut in top and bottom” he cut in the cornice around the ceiling but then rather than finish that work by painting the skirting area, he went to the floor below and began to work again on the cornice; that he did not look at the labels of the paint tins to check their colour or whether they were undercoat or finish, but rather began painting with whatever was nearby; that his clothing smelt of faeces and vomit; that he wore a pair of overalls that had been provided for him, without washing them until they virtually stood up on their own through dirt; that he always hid when changing into his work clothes, and that when instructed to write out proper invoices for his work he omitted the hours of work and described the place of work in terms such as "over the bridge" or "over the water" or "this side of the bridge or water".
24   While in prison he wrote a letter to his mother in which he addressed her as "Dear Arabic woman"; said that he was very worried about her and all the girls that had been raped all over the world; made various inconsistent observations about people feeling incredible bitterness after death yet had then suggested that they saw the earth with open hearts; observed that he did not see any success in "money, in dumb movies, some absurd Muppet show, songs and in many other things", and said that he did not want any grace from the Bible and that nothing much had come out of the Bible's promises.
25   In November 1997 it seems that his mental state first came under notice within the prison system when he reported entertaining feelings of guilt concerning the offence and of having nightmares about it.
26   On 10 February 1998 he was examined by Dr O'Dea who recorded that he had pleaded guilty to manslaughter and was due for sentencing. He noted a history of him feeling depressed, lonely and of being isolated and of worrying about the offence and his predicament. Dr O'Dea found no psychotic symptoms but noted that he was depressed, with flat affect. He placed him on a course of anti-depressants as a trial. It would appear that this medication has continued to the present time.
27   The accused was later transferred to the MRRC where, from about September 1998, he came under the care of Dr Jennifer Thompson. In a report, which she has provided, it was noted that when she first saw him she had difficulty obtaining a history as he appeared depressed and monosyllabic. He complained of hearing voices but on exploring those symptoms he apparently felt that they were strange dreams due to his problems with sleeping. She thought him not to be psychotic but changed his anti-depressant medication to overcome the sleeping problems. She said that she has since seen him on a monthly basis and considered him to be intelligent, to relate well with prison officers and with his cell mate and to have no difficulties with his work cutting cloth for theatre gowns. She thought that his anxiety increased as court dates approached. She said that he was able to discuss the charge, was aware of the difference between murder and manslaughter, knew the function of the court, appeared to understand its processes, knew the function of the Judge and jury and had chosen not to have a jury. She also recorded that he wanted to plead guilty to manslaughter. She thought him fit to be tried.
28   On 28 April 1999 a clinical psychological assessment was prepared by Greta Goldberg following tests she conducted on 19 April. His presentation was recorded as displaying a "distinctly flat affect", the impression given being that he was "withdrawn and/or medicated". His manner was superficially calm and compliant but he displayed fears of failure and general defensiveness on testing.
29   Initially she thought some of his comments were mildly inappropriate and tangential but said that he became more focused as the levels of trust and comfort increased. His full scale IQ of 78 to 88 was assessed to be in the borderline to low average general intelligence range consistent with his poor school performance and limited educational attainment.
30   Some deficits were found in his overall memory functioning and in attention/concentration. The pattern of cognitive tests Miss Goldberg said were consistent with a psychiatrically disordered thought process. His personality profile, she said, was more consistent with a psychiatric population norm than with the prison inmate population norm. Again, consistently with his admission to a psychiatric hospital in Poland, his response to the Draw A Person test suggested to her gender identity problems and heterosexual anxiety since he was unable to bring himself to draw a female.
31   This brings me to the two psychiatrists who have reviewed the accused recently and who gave evidence at the hearing, namely Drs Canaris and Strum.
32   Dr Strum's initial assessment was that the accused was unfit to be tried. The history he took differed in many respects from that obtained by Dr Canaris, but in common they each recorded that the accused had said that he did not have a girlfriend, that he had no sexual experience and that he hated homosexuals.
33   The accused informed Dr Strum that he was going to plead guilty, it being better to do so because "they can drop the charge to manslaughter". He disclosed a knowledge of the role of a solicitor and a Judge and understood the oath to tell the truth. He said he talked to other prisoners about courts and the legal system. He regarded the prisoners as pawns and he said that he knew what he had done was wrong.
34   He informed Dr Strum:

"that he was feeling well. He was not depressed. He was eating and sleeping well. There were no nightmares His memory and concentration were intact. He was not hearing voices. He was receiving no messages from television sets or radios. He was optimistic about the future".

35   In light of that history, it is somewhat difficult to understand why it was that Dr. Strum reached an initial opinion that the accused was, upon the balance of probabilities, unfit to plead; or why it was that he concluded that Dr Canaris had probably been correct in saying, at the time of his interview, the accused was suffering from a schizophrenic episode.
36   The most he seems to have detected was a pre-occupation in the accused with his lack of success with the opposite sex, doubts about his sexuality and some evidence of thought disorder, although even that he recognised could have been due to the difficulties occasioned by working through an interpreter. Dr Strum did, however, question whether the accused could instruct his solicitors or concentrate through a trial if he was actively psychotic. He said that if a six month trial on Phenothiazines could be arranged, it would become clearer exactly how psychotic the accused was.
37   This opinion was formulated without the assistance of the correspondence between the accused and his mother, the statement from Mr Pastenak or the hospital notes. It would seem to have been almost entirely based upon the history taken by Dr Canaris and upon the opinion expressed by that witness.
38   Dr Strum came to a different opinion, however, once he reviewed the additional material that had been available to Dr Canaris, as well as the report of Greta Goldberg.
39   While finding that the thoughts in the accused's letter to his mother somewhat strange, Dr Strum expressed the view they were understandable by reference inter alia to his pre-occupation with religious ideas and his belief that his mother had been raped by his father. He agreed with Miss Goldberg that the accused was probably showing a mild psychotic process, but pointed out that he had proved to be an inconsistent historian so that the veracity of what he said could not be relied upon.
40   Although he said that there was some doubt about it, he now thought the balance of probabilities was tipped in the opposite direction and that the psychotic process of the accused, if genuine, was not sufficient to prevent him from being tried.
41   I find it somewhat difficult to understand why it was that Dr Strum changed his opinion after reading the additional material which, in my view, only tended to reinforce the opinion of Dr Canaris. It seems that Dr Strum did not regard this material, to use his expression, as "corroboration or collateral evidence". I would have thought, quite frankly, that was precisely what it was.
42   I find his explanation as to why the letter to the mother was understandable to be quite unconvincing. I reach a similar view in relation to his opinion that the cluster of bizarre behavioural characteristics of the accused, described by his work mates, were unexceptional. His dismissal of concerns about the accused holding beliefs of an apocalyptic kind, of the instances reported in the history of ideas of reference, of hearing voices and delusions, and of his religiose pre-occupation, to be somewhat surprising since these are the very kind of things one encounters in persons suffering from schizophrenic illness.
43   The conclusion of Dr Strum seems to have been based, at least in part, upon his view that some of the experiences reported were not unusual, or at least were not indicative of schizophrenic illness. It also seems that he based his altered opinion, to a significant extent, upon his assessment that the accused had not been telling the truth because of the differences in the histories he has provided at various times. That is a matter for judgment as to which Dr Canaris had a different view.
44   Dr Canaris examined the accused on 15 February 1999. He had the considerable advantage, which Dr Strum recognised, of being Polish so that he was able to establish a comfortable relationship with the accused. It seems that he was able to extract more information from him than the other expert witnesses were able to do. Those witnesses, it is observed, were either dependent upon an interpreter, or spoke to the accused in English, a language in which his fluency is limited.
45   In the history that Dr Canaris took, the accused blamed many of his difficulties, including his abuse of alcohol which had led to his earlier psychiatric admission, upon the lack of a girlfriend. Dr Canaris received, in this regard, a history which indicated an obsession by the accused with a girl “Alina”, a girl whom the accused had never met but whom he believed had been in the same mental hospital as him and had also come to Australia.
46   Dr Canaris said that he conveyed an unrealistic expectation that she would visit him in gaol and that a relationship would then eventuate which would solve all his problems. Dr Canaris said that the information he gained from the accused in this regard was scattered through a "most tangential and thought disordered account in which he wandered from topic to topic in a vague, directionless and distinctly inappropriate manner", with disrupted, logical linkages between the ideas expressed.
47   Dr Canaris also recorded in a history, that he found somewhat hard to follow, that a friend of the accused controlled the television and that this friend gave him a number that jumped out on the television. Dr Canaris went on to record claims by the accused that the Pope had been to his home to see his family; that there were people such as Galileo and Nostradamus who saw certain things; that the Blessed Sr Faustyna had been speaking to the Pope, and similar matters. This was followed by some references to the Bible and to the belief of the accused that a fearsome king would come in the 99th year in France, that king being a person to whom the accused had spoken, and also that the Son of Man would manifest himself in the Australian Olympics.
48   Dr Canaris thought that these matters displayed evidence of a manifest thought disorder, as well as evidence of delusional beliefs, predominantly of a religiose nature, an utterly inappropriate pre-occupation with a relationship with a girl that the accused had never met, a strongly over-valued propensity to blame all his difficulties on the fact that he did not have a girlfriend, and other matters strongly suggestive of an ongoing psychotic illness.
49   He also thought that the concerns of the accused in relation to his genitals and his desire to see a urologist may have been related to a profound insecurity over his sexuality, which was in turn related to his view that all his problems were attributable to his lack of a girlfriend.
50   Like Dr O'Dea and Miss Goldberg, Dr Canaris observed that the overall affect of the accused was "strikingly flat", an impression which I observed was contrary to that expressed by Dr Strum.
51   The statement from the co-workers, and particularly the letter to the accused's mother, were further indicators, Dr Canaris said, of the presence of a psychotic illness, the latter because of the incoherent and religiose ramblings it contained, the inappropriate way in which the mother was addressed and the absence of any reference to the big issue in his life, namely the fact he was in prison awaiting trial on a serious charge.
52   His earlier admission in Jaroslaw Dr Canaris thought might have been mis-diagnosed in that he may have been suffering from prodromal schizophrenia, that is, schizophrenia in its early stages manifested by:

"messy presentation replete with vague complaints, marked anxiety and sometimes substance abuse which frequently comprises an attempt to self-medicate the dysphoria characteristically associated with the prodromal phase of the illness."

53   In Dr Canaris' opinion the accused was suffering from a chronic psychotic illness, the most likely one of which was chronic schizophrenia possibly with secondary depression. Alternative possibilities were a major depression with mood incongruent psychotic features or a schizoaffective disorder. It followed, in his opinion, that the accused was not fit to be tried because his gross thought disorder, his pre-occupation with the girl Alina and with the bizarre and religiose themes would make it very difficult for him to pay appropriate attention to the proceedings and to give proper instructions to counsel.
54   Moreover, he thought that he might have major difficulty in weighing up the evidence to be presented, making it extremely difficult for him to enter an appropriate plea or to take advice from counsel in that regard. Once in the witness box he thought it highly likely that the accused would respond with material, at best of marginal relevance to questions which were put to him.
55   Dr Canaris expressed concern that the accused had not been trialed on an anti-psychotic drug and thought that after an appropriate interval, suggested to be six months, in which he might be given adequate medication, there was at least a fifty per cent chance of him being fit to be tried.
56   In relation to the other experts who had seen the accused with the aid of an interpreter, he expressed a concern as to the risk of their interviews having been affected by that fact. He suggested that it might have become more an interrogation, in which the interpreter may have tried to do his or her best to make the answers more intelligible thereby making it less likely that features, such as thought disorder or delusional beliefs, would emerge.
57   In a supplementary report dated 21 April, Dr Canaris thought that the co-workers' description of the accused, which was suggestive of profound self-neglect, disorganised behaviour, thought disorder, limited communication skills, social withdrawal, poverty of thought and poor sexual adjustment, were all features strongly consistent with severe chronic schizophrenia.
58   In his evidence he added that while the relatively low IQ of the accused would not have been a problem in itself, if combined with a psychotic illness and thought disorder it may have affected his concentration and ability to give instructions.
59   The matter is one of some difficulty, given the somewhat ambivalent opinions of Dr Strum, his concession that the opinion of Dr Canaris was one that was open to him as a competent psychiatrist, and his concession that he himself retained some doubt himself because of the thought disorder that he suspected to be evident in the accused.
60   I have reached the conclusion that the opinion of Dr Canaris should be preferred to that of Dr Strum and to that of Dr Thompson. I have come to that conclusion for the following reasons:

(a) Dr Canaris had the advantage of speaking with the accused in his own language and of establishing a relationship with him in which he was more likely to have been comfortable.

(b) There is a history in this case of mental disturbance or at least of abnormal behaviour which points to the accused not feigning his present condition, both in the prior psychiatric admission and in the accounts given by work mates as to very odd and disorganised behaviour on his part.

(c) The letter to his mother is bizarre and cannot, in my view, be rationalised on the basis that Dr Strum suggested.

(d) The fact that the accused was responsible for an outburst in the course of proceedings while Dr Canaris was giving evidence when he asked him what he was "fucking on about" followed by various references to "cocks and sluts". While this demonstrated that the accused could follow what was being said by the witness it did reveal inappropriate behaviour, and lack of appreciation of the basis for the evidence and what it was that Dr Canaris, a witness called by his own counsel, was seeking to do. This tended to highlight the problem that Dr Canaris identified concerning his ability to understand the proceedings, and to give appropriate instructions for his defence or to present his version of facts to the jury.

(e) He has given different accounts to different people at different times as to whether he was pleading guilty to murder or manslaughter, or even pleading guilty at all, and during the fitness hearing on Monday afternoon he asked his solicitor whether he was to be sentenced on the following day. These are further indicators that he would have difficulty, if not an inability to understand or follow the proceedings with the requisite capacity of which the authorities speak.
(f) The observations by Drs Canaris and O'Dea and by Miss Goldberg as to the presence of a "flat affect” also mirror the observations recorded in the hospital notes in Poland, yet as I have observed, the view taken by Dr Strum in that regard was to the contrary.

(g) Dr Thompson did not have the benefit of the additional material provided to Dr Canaris, particularly the observations by his work mates and the letter to the mother.

(h) The accused has not had the benefit of the trial on anti-psychotic medication of the kind that Dr Canaris favours, which Dr Strum, at least in his first report, also favoured.

(i) It is difficult to see what gain the accused would have in feigning an unfitness to plead and there are contra indications to that, in the long standing history of abnormal behaviour on his part, which I have mentioned.

61   As I observed, the question to be resolved is a difficult one when faced with opposing opinions of three experienced forensic psychiatrists. However, on the balance of probabilities, for the reasons mentioned, and most particularly because of the distinct advantage which I am satisfied Dr Canaris had in speaking to the accused in his own language, I do prefer his account. I find on the balance of probabilities that the accused is unfit at this time to be tried. I will refer the matter to the Mental Health Review Tribunal. I direct that he remain in custody until the review of that Tribunal is completed and further order is made by this Court.

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Last Modified: 06/30/2000