R v Resnik
[2007] ACTSC 96
•5 December 2007
R v RESNIK [2007] ACTSC 96 (5 December 2007)
CRIMINAL LAW – self-defence – relationship with not guilty by reason of mental impairment
Criminal Code 2002 (ACT) ss 28, 29
Crimes Act 1900 (ACT) ss 323, 324
Zecevic v Director of Public Prosecution (Vic) (1987) 162 CLR 645
No SCC 316 of 2006
Judge: Madgwick J
Supreme Court of the ACT
Date: 5 December 2007
IN THE SUPREME COURT OF THE )
) No SCC 316 of 2006
AUSTRALIAN CAPITAL TERRITORY )
R
v
BENCHAMAS RESNIK
ORDER
Judge: Madgwick J
Date: 5 December 2007
Place: Canberra
THE COURT ORDERS THAT:
The accused is judged not guilty.
Introduction
The accused is charged with the manslaughter of Christopher John French at Canberra on 1 August 2006. There is no doubt that the accused wielded a knife at the time the deceased received a fatal stab wound from the knife in his chest. He died very quickly from internal injuries. The accused nevertheless pleaded not guilty, asserting that she was acting in self-defence. The accused elected to have trial by judge alone.
However, under ACT law the prosecution may, with the leave of the Court (in this case, earlier given by Higgins CJ before trial) have the Court consider whether the accused should be acquitted by reason of mental impairment.
The case for the prosecution is that the accused used an excessive degree of force in self-defence so that, even if (which was all but conceded) she acted in self-defence, that does not exculpate her from the manslaughter charge. Alternatively, the Director of Public Prosecutions (the DPP) agrees that the accused should be acquitted but only on the basis of mental impairment. The accused accepts that, if the DPP persuades the Court that a justifiable level of violence in self-defence was exceeded, she should be acquitted on that alternative basis.
In this case the practical consequences for the accused probably differ little, whichever be the basis for her acquittal. However, formally, an acquittal for mental impairment statutorily guarantees that she will be under the close control of the mental health authorities. As a matter of practicalities, it is inconceivable that, in either event, the closest attention would not be paid by the mental health authorities to whether she is a danger to the community and to her very close supervision.
The Case Statement filed by the DPP alleged the following:
Christopher French, and the accused were in a relationship in the months prior to 1 August 2006. On the evening of 31 July 2006, the accused was at Mr. French’s home, [at] Ainslie Village. Also present was another Ainslie Village resident, Stephen McCarthy, a friend of Mr. French.
At sometime between 2am and 3.30am on 1 August 2006, an argument developed between the accused and Mr. French. This was overheard by neighbours. Mr McCarthy was asleep on the floor at Mr. French’s at this time. Mr McCarthy stated that he awoke to hear the accused saying something like ‘help me’ and saw some physical altercation between the victim and the accused, but went back to sleep.
Mr. McCarthy recalls being later woken by the accused and that she said something like ‘get an ambulance’ and something about having cut Mr. French’s throat.
Mr McCarthy then left the accused and Mr. French in his room and went to speak with security staff who called an ambulance.
When the ambulance officers attended … they found Mr. French lying on the floor of his room with his head in the accused’s lap. A knife was also observed to be on the floor of the room. The ambulance officers examined Mr. French and determined that he was dead.
The accused spoke with the ambulance officers and told them that she had a knife and she made movements indicating what she did with that knife.
Police were then called to Ainslie Village and took the accused to City Police Station where she was interviewed and charged. An examination of Mr. French’s room was conducted by forensic officers.
A post morte[m] concluded that Mr. French dies as a result of a single stab injury to the left chest wall.
The deceased was aged 36 when he died. He and the accused had had a sexual relationship over several years. He was a heavy and daily drinker with a history of violence towards the accused. It is likely that in the struggle between him and the accused before he was killed, he was disinhibited by alcohol, of which he had probably consumed a great deal in the twenty-four hours preceding his death.
The accused is of Thai origin and was aged 43 when the deceased died. She was considerably smaller than the deceased. She had had for a number of years a chronic mental illness diagnosed as schizoaffective disorder with chronic residual psychosis. She had been the subject of a psychiatric treatment order since 1998. Her illness was characterised by, among other things, various delusions and hallucinations. These included a chronic delusion that there was a malign entity called “Barbar” which was antipathetic to her and which sent her messages through otherwise innocuous television programs.
The deceased died in his room at the hostel of a single stab wound to his chest, under his left armpit, there inflicted upon him. The knife was wielded by the accused and the wound implied at least a “moderate” degree of force.
An “objective” view of the claim of self-defence
What actually occurred immediately preceding the deceased's death is probably what the accused told the police and demonstrated to them in an interview soon after. On that question, little weight can be attached to the evidence of the third person in the deceased's room at that time, Mr McCarthy: he had the idea, based on no evidence and almost certainly wrong, that the deceased had stabbed himself.
The accused’s version, as best one can piece it together from her distraught account to the interviewing police officers (and, earlier, to an ambulance officer), was that she was defending herself against an actual assault by the deceased. He was dragging her across the room by her hair, apparently with a view to throwing her out. She took a kitchen knife and waved it from side to side in front of her, and she must have struck him with it. She had no intention to stab him. It also appeared from her presentation to the complex's security officer and the ambulance officers who attended that she did not seem able to accept that the deceased was dead, which by then he obviously was. The accused referred in the account to the police, soon after the killing, to the deceased’s previous violence to her and to her fear of more violence than he was actually visiting upon her. He had claimed to have learned in his Army days an unarmed combat technique of killing a person by heavily resting the underside of his forearm across the adversary's throat. (Mr McCarthy confirmed this.) The accused indicated that he had in the past performed such a manoeuvre on her, thereby denying her breath, shifting his arm and doing it again.
From Mr McCarthy’s evidence, it may well have been that the accused had irritated the deceased with strange and delusional talk and he may well have been trying to eject her from his room. It is also very possible that the accused was calling for help and that her cries woke Mr McCarthy who, whatever his condition may have been, went back to sleep, not long before he was again forcefully woken by the accused beseeching him to get an ambulance.
There is no doubt that there was a history of violence between the accused and the deceased and that the deceased was, apparently, at least more often the aggressor. Mr McCarthy had been the deceased man’s best friend. He said that the accused had, on other occasions, handled a knife in unusual and perhaps threatening ways but had never used a knife against the deceased.
It is settled law that, once the fact (or reasonable possibility) that a person is acting in self-defence is accepted, the issue of whether the degree of force used in so acting was more than reasonable, is not to be judged “on golden scales”. As Wilson, Dawson & Toohey JJ said in Zecevic v Director of Public Prosecution (Vic) (1987) 162 CLR 645 at 662-3:
in the context of self-defence [the fact-finder] should approach [the] task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
If that were all, the Crown might reasonably simply be said to have failed to negative the accused's claim to have been acting in self-defence and further, to have failed to show beyond reasonable doubt that she used excessive force in defence of herself. It is not beyond the bounds of possibility that the accused was a frightened victim of an assault, was in considerable pain and at a physical disadvantage, and was flailing about with a kitchen knife with a predominant aim of scaring her assailant into desisting from his cruel, painful and degrading treatment of her. In the course of that activity, she might accidentally have stabbed the deceased. Despite the traditional Australian abhorrence of resort to a knife as a weapon, even in self-defence (an abhorrence which I share) it might not have been unreasonable for the accused, under attack, to grasp for any potential weapon at hand in order to scare off her assailant.
It is on such a thesis that counsel for the accused submitted that I should acquit the accused. The attraction of the submission is obvious but it would be too easy and artificial simply to approach the case in that way. The case has another unavoidable dimension.
A more “subjective” view of self-defence
The accused some days later described the events surrounding the deceased’s death to her treating psychiatrist, Dr Bonner, who had gained her trust. Dr Bonner recounted this conversation in a subsequent report:
Ms Resnik’s description to me of the events leading up to and around the alleged attack upon the victim involved probable chronically psychotic material. She said the following statements in response to questions regarding the sequence of events leading up to and around the alleged attack:
1)‘He (the alleged victim: Christopher John French) had sex with me in my sleep all the time’, ‘I can tell by my vagina when I wake up’
2)‘He (the alleged victim: Christopher John French) said “barbar” as he came towards me’
3)‘Barbar is like the teletubbies. He hypnotises people from the TV. Barbar have controlled him’
4)‘He (the alleged victim: Christopher John French) said barbar before he pulled my hair’
5)‘When I swung the knife there was a cold round sensation in my vagina. Then it was gone’
6)‘There was an invisible presence in the room’
7)‘His (the alleged victim: Christopher John French) shirt changed colours again and again. There was no blood on it’.
According to Mr Gardner, her long-time treating psychiatric nurse, she had been more apt to lose touch with reality when under pressure, including when subjected to violence by the deceased.
It is likely that the deceased, intending to agitate the accused further, uttered the word “Barbar” to her. According to Mr McCarthy, the deceased had some history of like behaviour.
It is, in my view, likely that the accused at least believed that the deceased had said some such thing and that the effect of this actual or believed utterance of that name was to terrify her and cause her to believe that the deceased was possessed by an evil, dangerous and threatening spirit. It is likely that she then had a mental impairment within the meaning of s 28(1) of the Criminal Code2002 (ACT) (the Code) – see [24] below for its terms. Conformably with that finding, in my view it is also likely that the accused thrashed about wildly and desperately with the knife, intending to do serious harm to the possessed person of the deceased.
In my opinion, however, a reasonable doubt must nevertheless remain about that latter conclusion.
That is so because, firstly, it is contrary to the accused’s own demonstrated account, tendered by the prosecution, soon after the deceased was killed. The accused was clearly considerably distressed as she gave that account and there was no sign that she was in any way dissembling or suppressing information. Secondly, there is no suggestion of any previous beserk attack or counter attack by the accused upon the deceased, despite the history of his violence to her and his taunting her in relation to her beliefs, presumably including about Barbar. The only evidence is that there was some violence between the two. Thirdly, she appears to have caused only minor cuts to the deceased’s arm apart from the fatal wound. A wild and desperate counter attack with a knife by a terrified and deranged woman would seem unlikely to have produced such little incidental damage to her assailant. Fourthly, Dr Bonner could not dismiss the possibility that after the deceased’s death and before she saw Dr Bonner, the accused may have delusionally embroidered her recollection of what had occurred. Fifthly, accepting that the accused perceived her predicament at least partly under the influence of a delusion, it is not a necessary corollary that she attacked ferociously: terrified people do not always overreact or even use as much force to defend themselves as their felt terror might warrant. Finally, the only direct evidence of how the accused wielded the knife was her own video-recorded demonstration to the police, and the circumstantial material is not strong enough to dispel a reasonable doubt that that demonstration was accurate.
Thus in my opinion the Crown has not shown that the behaviour of the accused was, in all the circumstances, unreasonable. The present case was certainly not one where the accused would have had any opportunity for calm or detached, or indeed any, deliberation or reflection (cf Zecevic supra).
It would follow that there should be a verdict and judgment simply that the accused is not guilty as charged.
Interaction of mental impairment and defences such as self-defence
The interaction of mental impairment and other bases for denying guilt does not, in this case, compel any other conclusion. Sections 28 and 29 of the Code provide:
28Mental impairment and criminal responsibility
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6) The prosecution may rely on this section only if the court gives leave.
(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must –
(a)for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b)for any other offence—find the person not guilty of the offence because of mental impairment.
29 Mental impairment and other defences
(1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.
(2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.
The arguments presented by counsel in this case have, among other things, served to indicate that there may be many complexities and difficulties in applying these provisions. I therefore intend to say nothing of more general application than is necessary for the decision in this case.
Section 28(1) is the only source of authority for, and of requirement of, an acquittal on the stated ground of mental impairment. Section 28(7) requires that such impairment be the “only” basis for a conclusion that an accused person is “not criminally responsible for an offence” (emphases added). The statutory assumption is that, but for the mental impairment, the accused would be found to have committed an offence. However, here, for the reasons I have given, that assumption has been belied: because the accused fairly raised a claim of self-defence and the prosecution was unable to prove beyond reasonable doubt that that claim, as known to the law, was unjustified, there was no offence which could otherwise be found.
Likewise, s 29(2) – whatever its proper interrelationship with ss 28(7) and 29(1) – is predicated upon the premise that the trier of fact be satisfied that the accused carried out conduct “because of” a delusion caused by mental impairment. While I am satisfied that the accused suffered, at the relevant time, from such a delusion, I am not satisfied that she carried out her conduct because of it. She may very well have done the same thing if she were not deluded: the deceased was cruelly and painfully assaulting her. In the statutory context, no expansive view of the posited causal connection, in favour of the prosecution and tending to prejudice an accused person’s liberty, albeit on protective rather than punitive grounds, should be taken.
An acquittal under s 28(7) because of mental impairment has legal consequences beyond those of a simple acquittal. The person so acquitted is liable to loss of liberty, and control by, the Mental Health Tribunal, which control may itself include an infraction of the person’s actual liberty. Sections 323 and 324 of the Crimes Act 1900 (ACT) (Crimes Act) provide:
323Supreme Court orders following special verdict of not guilty because of mental impairment—non-serious offence
(1)If an accused has been charged with an indictable offence other than a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court may—
(a)make an order requiring the accused to submit to the jurisdiction of the tribunal to enable the tribunal to make recommendations as to how he or she should be dealt with; or
(b)make any other orders it considers appropriate.
(2)If—
(a)the Supreme Court makes an order under subsection (1) (a); and
(b)the tribunal notifies the court of its recommendations;
the court shall, in consideration of the tribunal’s recommendations, make any further orders it considers appropriate.
(3)The orders the Supreme Court may make under subsections (1) and (2) include the following:
(a)that the accused be detained in custody until the tribunal orders otherwise;
(b)that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.
324Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
(1)If an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court shall order that the accused be detained in custody until the tribunal orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.
(2)If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.
The mental impairment may be constituted by what was at the relevant time a merely temporary mental impairment: s 27 of the Code. A person may have been quite incapable of comprehension of his/her conduct (cf s 28(1)) on account of such mental impairment but nevertheless instinctively acting in self-defence in a way that a person without mental impairment might well have done.
Granted that ss 28(5), (6) and 29 of the Code and the relevant provisions of the Crimes Act and the complementary mental health legislation envision a scheme for protective rather than punitive loss of liberty, nevertheless, it remains the case that these provisions touch a citizen’s liberty. They should not, in my opinion, be construed so as to threaten it in circumstances that are not unambiguously clear or apparently necessary.
Section 28(6) in terms permits the prosecution only to rely on s 28 itself, and not the entirety of Division 2.3.2, headed “Lack of capacity – mental impairment” and comprising ss 27 to 29 inclusive. Let it be assumed nevertheless that, despite the terms of s 29 being such as to confer a right on the person who has carried out some conduct to rely on mental impairment to deny criminal responsibility, the prosecution might also rely on s 29. The legislature appears to have given effect to considerations such as I have just mentioned by requiring that a delusion caused by “mental impairment” as defined must have been the cause of the commission of the relevant conduct.
In my view that has not been shown here. The accused “carried out [her] conduct” because the deceased was physically hurting her. That she probably had the delusion that he was possessed by an evil spirit did not bring about a situation where it could, within the meaning of s 29, be said that she acted as she did “because of” that delusion.
Moreover, s 29(2) operates to limit use of a delusion as a defence. The accused is not seeking to rely on the delusion as a defence. It is one thing for the prosecution to prove, and for the accused also to assert, that a likely delusional state was one of the circumstances in which the accused wished to defend herself. It does not follow that she is seeking to rely on the delusion “as a defence”, nor that the accused is asserting actual mental impairment of a kind such as would exclude criminal responsibility. Nor is the DPP seeking to rely on the delusion of itself. The DPP seeks to rely on the underlying mental impairment which caused the delusion. But that cannot be done because of my findings about self-defence and s 28(7).
Conclusion
For these reasons, I find the accused not guilty. There will be judgment accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 5 December 2007
Counsel for the Prosecution Mr A Doig
Solicitor for the Prosecution ACT Director of Public Prosecution
Counsel for the Defence Mr J Harris SC with Mr J Sabharwal
Solicitor for the Defence Legal Aid Office (ACT)
Date of hearing 5, 7-8 November 2007
Date of judgment 5 December 2007
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