R v Sevi - [2010] NSWSC 387

No judgment structure available for this case.

CITATION: R v Sevi [2010] NSWSC 387
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21/04/2010, 27/04/2010, 28/04/2010, 03/05/2010

JUDGMENT DATE :
4 May 2010

JUDGMENT OF: Buddin J

DECISION: 1 In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the charge of murder by reason of mental illness.
2 In accordance with s 39(1) of that Act, I order that Gary Peter Sevi be detained in the 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.
3 I direct that, as soon as practicable, the Registrar notify the Minister for Health and the Mental Health Review Tribunal of this order.

CATCHWORDS: Trial procedure - offence of murder - trial by judge alone - whether "defence" of mental illness available

LEGISLATION CITED: Criminal Procedure Act 1986
Crimes Act 1900
Evidence Act
Mental Health (Forensic Provisions) Act 1990

CATEGORY: Principal judgment

CASES CITED: R v Coleman [2010] NSWSC 177
R v Jennings [2005] NSWSC 789
R v Porter (1936) 55 CLR 182
Stapleton v The Queen (1952) 86 CLR 358

PARTIES: Regina
Gary Peter Sevi

FILE NUMBER(S): SC 2008/166941

COUNSEL: P Barrett (Crown)
P Winch (Accused)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)
S O'Connor (Legal Aid Commission NSW) (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 4 MAY 2010

2008/166941 – R v GARY PETER SEVI

JUDGMENT
Introduction

On 21 April 2010 Gary Peter Sevi (the accused) was arraigned upon a charge that between 9 and 11 February 2008 at Newtown he murdered John Vincent Maher (the deceased). To that charge he pleaded not guilty but guilty of manslaughter. As a result of some of the evidence which emerged during the course of the trial, the Crown sought, and was granted leave to amend the charge so that it read “between 7 and 11 February 2008”. No objection was taken to the amendment sought by the Crown. Mr Winch, who appeared on behalf of the accused, indicated that the plea was entered upon the basis that, although the accused accepted responsibility for having killed the deceased, at the time that he did so he was substantially impaired within the meaning of s 23A of the Crimes Act 1900. The Crown did not accept that plea in full satisfaction of the indictment. The trial of the accused then proceeded as a trial by judge alone after the accused made an election, pursuant to s 132(1) of the Criminal Procedure Act 1986, to be so tried. The accused indicated that before making that election he had received the advice of counsel. As the section also requires, the Crown indicated its consent to the course which was proposed.

Background to the fatal incident

2 The Crown called a number of civilian witnesses in its case, namely Robert Connare, Lindsay Steel, Mark Schroder, Paul Cowhey, Zoran Pralica and Tiffany Rea. The first five witnesses were neighbours of the deceased whilst Ms Rea was a friend who visited him on an occasion shortly before his death. Those witnesses all gave evidence as to when, and the circumstances in which, they had last seen the deceased. Only one of them was cross-examined and then only very briefly.

3 As the factual background is not in issue, it can be briefly stated. The deceased lived at 702/31-35 Station Street, Newtown, which is a ‘bed sitter’ apartment that is located on the seventh floor of an eight-storey Housing Commission unit complex. The deceased resided on his own, although he would often have different people stay at his apartment, including the accused. At the time of the fatal incident, the accused was living in the deceased’s flat.

4 At about 10.00pm on Monday 11 February 2008, police were called to the deceased’s flat by his neighbours. Upon their arrival, police were met by some of the deceased’s associates who expressed concern that they had not been seen him for several days and that they could not raise anyone from his unit. This was thought to be unusual as the deceased’s dog, which accompanied him wherever he went, was still inside the unit.

5 Police detected a foul odour emanating from the unit. There was no response when they knocked on the door. Police then forced entry through a window and found the body of the deceased lying face down on the kitchen floor. A crime scene was established and an examination of the unit was conducted. It was apparent that the deceased had sustained multiple stab wounds to the upper body and that his body was in the initial stages of decomposition. A search of the unit was then conducted. Some of the accused’s belongings, including a suitcase which contained his personal papers, were located.

6 Shortly thereafter, Dr Duflou, a government forensic pathologist, attended the scene. From his initial examination of the body, he estimated that the deceased had been dead for up to 36 hours.

7 The following day (12 February) Dr Duflou conducted a post-mortem which revealed that the deceased had sustained ten stab wounds to his upper torso and neck. While most of those wounds were relatively shallow, two of them had penetrated deep into the torso. One stab wound had a track length of 90mm which had penetrated into the right ventricle of the heart. Another had a track length of 105mm which had penetrated through both the left leaf of the diaphragm and the left lobe of the liver. The deceased had also sustained a significant V-shaped laceration to the back of his head and his skull had been extensively fractured. Dr Duflou was unable to say whether those injuries had been caused by one or more blows. He also discovered a number of significant lacerations to the deceased’s left hand which in his opinion were typical of defensive injuries. Dr Duflou concluded that death had been occasioned by the “combined effects of blunt force injury to the head and multiple stab wounds to the trunk”. Dr Duflou’s report, together with various photographs taken at post-mortem as well as a diagram depicting the deceased’s injuries, were introduced into evidence.

8 Police then commenced to search for the accused but initially were unable to locate him. However, on 13 February he was arrested just before 1.25 am by police officers from Nowra in respect of outstanding warrants. Investigators from Newtown detectives were notified of his arrest and in due course they attended Nowra Police Station.

9 When asked by police to give his version of events the accused said that “I just snapped, he was insulting my family, making me out to be an idiot, I have blackouts sometimes it’s scary, it’s what happens when I’m on the ice.” He then participated in an electronically recorded interview in which he readily admitted his involvement in killing the deceased. The interview was played during the course of the proceedings. That enabled me to have the opportunity of observing the accused whilst he answered the questions which were asked of him. His presentation during the interview, it may be observed, was somewhat unusual. At times his voice was almost inaudible and some of the things which he said were difficult to follow. Moreover, not everything he said was able to be recorded. Ultimately, the accused requested that the interview be terminated because he had “had enough”. The interview itself was very lengthy and ran to 907 questions. Because it contains a considerable amount of repetition, it is necessary to set out only parts of the interview. I have underlined some of the responses which the accused gave because they provide some insight into his state of mind at the time of the offence.

.....

DETECTIVE SENIOR CONSTABLE JONES

Q66 And about what time was this?
A I don't know, it would've been about 9.00 or 10.00, something like that.

…

maybe I'm pickin' up the wrong vibes or the wrong message…I just, I don't know, I just snapped

Q80 Where was, where was John? When you were on the lounge where was John?
A Well, he was, 'cause I heard him, I heard him sayin' things in the toilet about army stuff and…he come out and I just got up and just looked at him and I didn't say nothin' to him when he …he .... like changed, changed…subject.

Q81 Mmm.
A And I don't know, it was, probably about 30 seconds later or something, I don't know, he just started goin' really, you know, talkin' quick and I just…I just wanted him to stop and shut up.

…

Q105 Yeah.
A I think it, I don't know where I got it…from the sink or it was hangin' up, I’m not too sure.
…

When I'm asleep I can still hear

voices, you know

like you know with it, but I thought I might've been hearing things or misconstrued

Q646 Yeah.
A … missing truth, you know, took it the wrong way , and then that just sort of like to me confirmed it…and I just went, you know.
…
Q654 … What did you think then, after you hit him, how did you feel? What, what went through your mind?
A Well…

Q655 I know these are hard questions.
A …I’m not sure. I thought, fuck, why did I just do that for and then, then he, and then he started goin’, Sorry, sorry, and then, I don’t know, something’ else just took over and I, you know, something a flashback just come back from me dad , and I…

Q661 And, and what made you go and grab that knife?
A I don’t know. Like he was, and like, you know, it was, it was hurt with it, like slingin’, slingin’ off at me dad what his job was you know.

Q662 I understand that.
A And, I don’t know, it was just like a, I don’t know…so I don’t know what you call it, impulse or anger, or I don’t know, or…

Q758 Yeah. O.K. And, so, how did you leave the unit?
A I think I was gunna kill myself .

Q759 Did you?
A Yeah.

Q760 O.K.
A …I just couldn’t, I couldn’t.
…

Q804 Yeah. And so you said that this happened, so you were asleep on the lounge and you, and you came to with John screaming, screaming things at you, and when you came to and you heard what was going on, did you, were you, were you completely conscious, did you know what was going on? Did you, how did you feel?
A Like I said, I, it was, I could hear him slandering my dad and it was just like, How dare you talk about my, my, my, my, my dad, he’s dead, he didn’t even know him.

Q805 Yeah.
A And that, that was just a rage straightaway, you know, it was just, when I get angry me blood just goes on fire.

Q806 So how did you come to? Were you aware of what was going on?
A Me?

Q807 Yeah.
A Like I said, I was like, half asleep and half…

Q808 Half asleep, O.K. I get you.
A …

Q809 Yeah. And what was your intention when you hit him over the head?
A Just to shut his, shut him up.

Q810 Yeah. So, if he shut up when you hit him over the head, ‘cause you said he was semi-conscious, why did you then continue to stab him?

A I stabbed him because he, because he said, Sorry, sorry, and the way he said, Sorry, sorry, so…

Q811 Mmm.

A …he, he, he had said it. He was like, you know, like let me know that he did say it…

Q812 Mmm.

10 The accused had earlier told police that after killing the deceased he had caught a train from St Peters Station and had ended up in Kiama. Senior Constable Daniel Gamble gave evidence that an examination of CCTV footage revealed that the accused was seen to board a city bound train from St Peters Station at 7.16 pm on 8 February 2008. He was seen to alight at Kiama station at 1.41 am on 9 February. He was observed to then remain in that vicinity until about 4.40 am when he appeared to go to sleep on a bench at the station. At 6.06 am he was seen boarding a north bound train from which he alighted at Dapto Station at 6.35 am. He told police that he had spent his time until his arrest living on the beach at Kiama and travelling from there to Nowra.

11 The accused made the following formal admissions pursuant to s 184 of the Evidence Act.

1 The deceased, John Vincent Maher, died in Unit 702/31-35 Station Street, Newtown, New South Wales, between 7 and 11 February 2008.

2 John Vincent Maher’s death was caused by blunt force injury to his head and stab wounds to his trunk.

3 I am the person who inflicted the injuries to John Vincent Maher which caused his death.

12 In addition, Mr Winch conceded that no issue would be taken with the fact that the Crown was able to establish that the accused had the relevant intention, at the time that he inflicted the fatal injuries, and thus prove its case for murder. He conceded that the evidence, and in particular the medical evidence, established beyond reasonable doubt that the accused had acted with at least an intention to inflict grievous bodily harm upon the deceased.

13 Subject to what follows about the accused’s mental condition, I formally record that I find that each of the elements of the offence of murder which the Crown is obliged to prove beyond reasonable doubt have been made out.

14 I should observe that the Crown raised at the outset of the proceedings the possibility that an issue of provocation, pursuant to s 23 of the Crimes Act, may arise. Not only did Mr Winch not seek to rely upon provocation, but he readily acknowledged that the Crown had excluded the reasonable possibility that the accused had been so acting. That was an entirely appropriate concession for two reasons. First, it is most unlikely that the words which apparently caused the accused to lose his self-control, were actually uttered by the deceased (although the accused in his delusional state may well have believed that they had been). Secondly, there was absolutely no basis upon which the “ordinary person” requirement in ss(2)(b) of s 23 could have been met. Accordingly, I put that issue to one side.

15 In the final analysis, the sole issue requiring the court’s determination turns upon an assessment of the accused’s mental condition. In approaching this issue, I gratefully adopt the approach which was taken by Kirby J in R v Jennings [2005] NSWSC 789. His Honour said:

The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial.

M'Naghten

McNaghten

Here, Mr Jennings told the police that he knew that when he wielded the knife he was attempting to stab the victim. And, of course, he did stab the victim. The issue, therefore, is whether, as a matter of probability, he did not appreciate that what he was doing was morally wrong, and that because of mental illness which deprived him of the ability to reason and form judgments. Where the defence is made out, the appropriate verdict is "not guilty by reason of mental illness" (s38 Mental Health (Criminal Procedure) Act 1990) ("the Act"). The person, however, is not then released. In accordance with s39 of the Act, a person, the subject of such a verdict, is detained "in such place and in such manner as the Court thinks fit until released by due process of law". A person subject to an order made under s39 becomes a forensic patient under the jurisdiction and supervision of the Mental Health Review Tribunal, which makes recommendations to the Minister (Mental Health Act 1990, s81).

M'Naghten

R v Ayoub

2. That such impairment was so substantial as to warrant his liability for murder being reduced to manslaughter .

There will be an abnormality of mind, for the purposes of this defence, where an accused's capacity to understand events or judge whether his actions were right or wrong or control himself, deviates from what may be regarded as normal, given that there is variation in the different ways in which people function. However, the abnormality of mind must arise from an underlying mental or physiological condition. It is not enough if the accused's inability is merely transitory, although it does not have to be a permanent condition.

I should, in this context, say something about the relevance of drugs and alcohol. If a person were to become psychotic by reason of drugs or alcohol, and kill someone while so affected, the partial defence would ordinarily not be available, and that (sic) because the effects of the self induced intoxication would ordinarily be short lived. The action of killing someone, while so affected, would ordinarily not be the consequence of an abnormality of mind arising from an underlying condition. Rather, on that example, the effects of the alcohol and drugs, which induced the killing, would be transitory.

M'Naghten

16 It is common ground, as Kirby J observed, that the issue of mental illness must be addressed before any consideration can be given to the issue of substantial impairment. Similarly, as Kirby J recognised, “the effects of ….self-induced intoxication are to be disregarded” by reason of s 23A(3) of the Act.

17 In considering the second limb of the M’Naghten test, it is convenient to recall what Dixon J (as his Honour then was) said in R v Porter (1936) 55 CLR 182:

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. (at 189-90)

18 See also Stapleton v The Queen (1952) 86 CLR 358 at 367.

The psychiatric evidence

(a) the reports

19 Dr Stephen Allnutt, on behalf of the accused, and Dr Samson Roberts, on behalf of the Crown were requested to examine and prepare psychiatric opinions in respect of the accused. They were each also called to give evidence during the course of the trial. From that material, the following details about the accused’s background emerged. The accused was 46 at the time of the fatal incident. He was one of five children and he spent his early years in Victoria. It would appear that his childhood was fairly disrupted and that his family moved quite frequently. There was disharmony between his parents and they eventually separated. The accused apparently had a strained relationship with his mother but was very close to his father. He described their relationship as being that of “best mates” and told Dr Allnutt that he “never really got over his death”. He also said that “he put up a ‘barrier’ against the rest of the family for disrespecting his father”. Tragically, both his brothers and one of his sisters have committed suicide. The accused has been employed as a spring maker but in recent years has worked only intermittently. He has had few relationships in his life, with the last one ending in 1995. All the indications are that he is something of a loner and that he has experienced significant periods of homelessness.

20 The accused provided an extensive history of illicit drug usage. He began using cannabis at the age of 16 and used it daily for about 20 years. He commenced using speed following his father’s death and then began using ice regularly from 2005 onwards. He said that he had been using 0.3 to 0.4 grams of ice daily for a period of two years prior to the offence, although I note that for some of that period of time he had been in gaol. The accused also reported having abused alcohol for a period of 20 years and maintained that he was accustomed to consuming up to four litres of wine on a daily basis. He also reported periods of alcohol related amnesia.

21 The accused told the psychiatrists that he believed that for years he had been suffering from depression. He told police that he had been taking medication for his condition. He told Dr Roberts that he had never attempted suicide but acknowledged having had “suicidal thoughts”. He gave an account of “hearing words in different voices”. He also told him that “he would talk to people in the house [in which he previously resided] through his mind and that they would talk back to him through his mind”. He said that “he had thought that people were listening in on him [and that] he heard words like ‘jump’ and [believed] that a voice is telling him to jump”. He provided a similar history to Dr Allnutt whom he told that he heard words like “jump” in his head. The accused told Dr Allnutt that he related the voice telling him to “jump” to an occasion when his brother had jumped to his death. He also told him that “sometimes he would be watching television and he would hear a voice in the background. These voices were different to his thoughts as if there was someone in his mind, speaking with different tones. The voices occurred every day.” It appeared that he heard voices more frequently after consuming ice. He also described having suffered panic attacks after hearing voices.

22 The accused had apparently known the deceased for about 15 years. He said that the deceased had permitted him to move in with him following his (the accused’s) release from gaol some three weeks before the fatal incident. According to the accused, they had consumed drugs together on a regular basis during that period.

23 The accused provided each of the psychiatrists with an account of the fatal incident. Those accounts were for all and intents and purposes not only consistent with each other, but also with the version which he had provided to police in the recorded interview.

24 Dr Allnutt in a report dated 6 February 2009 provided the following opinion about the accused:

He provides a history of psychotic phenomena in the form of auditory hallucinations and referential ideas in the time preceding the alleged offence and long history of substance abuse. …

It is probable that in the material time leading up to the alleged offence that he was experiencing fluctuations in his mood, likely secondary to intoxication and withdrawal to amphetamines and substances. He reported hearing voices at the time, which, if present would have been consistent with a drug induced psychosis at the time of the alleged offence. …

25 He concluded that it was open to the accused to raise the partial defence of substantial impairment.

26 On 3 April 2009 Dr Allnutt spoke to the accused’s mother. She informed him that there was “a strong family history of manic depression and schizophrenia” and confirmed that three of her five children had indeed committed suicide. She also said that when the accused was young she had separated from his father because he (the father) had been suffering from a mental illness. She said that for many years thereafter she had had only limited contact with the accused. She was informed that he had been living on the streets after his father died. She said that in 1989 she had found him living on the streets in Wodonga. For a while thereafter he had lived with her before permanently disappearing from her life.

27 In a supplementary report dated 15 April 2009 Dr Allnutt expressed the following opinion:

Having regard to my report already sent to you dated 6 February 2009, I believe there are grounds to be of the view that your client has suffered an “underlying condition” and thus was vulnerable to experiencing an “abnormality of mind”; this view is based on the significant family history of manic depression and schizophrenia (his mother stated she had five children and three of them had committed suicide due to manic depression); a family history such as this suggests a significant underlying genetic vulnerability to mental illness; his prior psychiatric history in the time preceding the alleged offence with psychotic presentations, in addition to this at the time that I saw him on 31 October 2008 he continued to manifest unusual perceptual disturbance in the absence of substances and it is possible that he now has mental illness triggered by substances but independent of substances. On balance I believe there are grounds for the Court to conclude that he had an “underlying condition” and that was probably schizophrenia.

28 Dr Samuels in a report dated 3 June 2009 provided his opinion which is in the following terms:

At the time of my assessment of him [at the prison hospital at Long Bay] on 22 May 2009, [the accused] gave an account reflective of the presence of psychotic symptoms over a period of several years, consistent with a diagnosis of Schizophrenia. Whilst it is possible that his condition was initially precipitated by his use of stimulants, this cannot be stated with certainty. The protracted period of his condition and the persistence of symptoms well beyond cessation of substance use, support the diagnosis of Schizophrenia. Furthermore, his condition has persisted despite treatment. …

In considering [the accused’s] mental state at the time of the offence for which he is before the Court, the interplay of conditions known to be operant [sic] at the time is taken into account. [The accused] is considered to have been experiencing psychotic symptoms at the time of the offence for which he is before the Court. Namely, he was experiencing the belief that people were talking about him. The impression given is that [the accused] was experiencing auditory hallucinations with respect to the perceived comments made by [the deceased] in relation to his father. It is unclear as to whether his account of being out of control is best considered reflective of the psychotic symptom known as Passivity Phenomenon, namely the perception that one’s body is under the control of an external force, or disinhibition and impairment of impulse control conferred by substance use. A combination of these factors may have been at play. [The accused’s] mental state at the time was further affected by the significant degree of intoxication conferred by the substances that he described having consumed in the period preceding the events. …

Based on the information provided by [the accused], the multiple conditions affecting him are considered to have adversely impacted on his cognitive functioning at the time of the offence to such a degree that he is considered to have been unable to fully comprehend the extent of the aggression committed by him. Nor is he considered to have had the requisite cognitive capacity at the time of the event to form the impression that the level of aggression undertaken would have reasonably been expected to lead to death. Furthermore, it is evident that the motivation behind the attack perpetrated on [the deceased] was based in psychotic phenomena.

In summary, it is my opinion that [the accused’s] cognitive capacity was so affected by the combination of factors at play at the time of the offence, that he would be considered to have been of diminished capacity at the time of the offence. Furthermore, on the basis of the information provided, a defence of mental illness may be available to [the accused]. This is based on the following grounds:

1. [The accused] acted on the basis of delusion;

2. He described an irresistible impulse to respond to his delusional belief;

3. His mental illness prevented him from objectively assessing the quality of his actions;

4. His mental illness deprived him of the ability to assess the consequences of his actions.

29 In a report dated 23 November 2009 Dr Allnutt expressed the following opinion about Dr Roberts’ report:

began apologising concluding that he had snapped,

In my view, it would be best articulated that he had an underlying condition, schizophrenia which caused an abnormality of mind, auditory hallucination to which he reacted in an aggressive manner believing the victim to have said negative things about his father (due to an impairment to understand events caused by the auditory hallucination) and in this context lost his capacity for control. …

There is a strong likelihood that he experienced and [sic] auditory hallucination, and if the court accepts this, then I believe a defence of substantial impairment would be most applicable.

30 It was upon the basis of Dr Allnutt’s opinion that the accused entered the plea to which I referred at the outset of these reasons.

(b) the oral evidence

31 Before giving evidence Dr Roberts had the chance to read the records about the accused maintained by JusticeHealth, an opportunity he had not previously had. He then gave the following evidence:

Q. From your examination of him and the history he provided, were you satisfied that he had been experiencing psychotic symptoms?
A I had no - I was not given the impression [the accused] was being anything but frank with me. He gave straightforward responses to the questions that I posed. He gave an account which was considered reflective of psychotic symptoms, and it was sufficiently original, albeit not unique. It did not appear to me that he was embellishing upon a description he may have heard elsewhere, or imagined or what he would imagine would be a reasonable account of psychotic symptoms.

…

Q. Did he provide you, firstly, with a history that was consistent with the material contained in the police brief. Particularly, as to the nature and extent of the injuries sustained by [the deceased]?
A. He initially explained the nature of the injuries and later, during the course of that part of my assessment, it became evident that he was recounting what had been told to him and what he had seen in certain documents. It was evident on speaking to [the accused] that he was quite surprised about the nature and extent of the injuries that had been inflicted on [the deceased], and he indicated that it had been his impression that his conduct would not have caused such injuries. He did not believe that he had used such a degree of force. He did not believe - he was actually surprised at the number of stab wounds that had been inflicted, and he indicated he did not consider that the nature of the assault would have resulted in death.

Q In your experience people who are not suffering a mental condition sometimes tend to minimise - when speaking of their actions, tend to minimise their conduct?
A. That's correct.

Q. In [the accused’s] case, did he seem to you to be trying to minimise his conduct, or minimise his actions, or was it something else?
A. My impression was that [the accused] was genuinely surprised and somewhat shocked at the nature of the injuries received by [the deceased]. In my experience, people who attempt to minimise or deny the extent of their conduct when presented with irrefutable evidence of what actually went on would typically accept it after a period of particular - and would generally not continue to show surprise in an extended period down the track.

Q So that surprise, was that reflective of his mental condition or mental state at the time?

A. That was my interpretation, yes.

Q. In your report you said that there were multiple conditions affecting [the accused] at the time of doing the acts that resulted in the death of [the deceased]?
A. Multiple condition?

Also, what would be worth taking into consideration is the fact that in people who use substances to such an extent as described by [the accused] there is often a degree of cognitive impairment, whilst sometimes quite subtle can be of significance.

Q That is permanent cognitive impairment you are talking about?
A. Correct, such as alcohol induced brain damage or effect of using high doses of stimulant drugs.

Q. So, is it your view there is likely to be existing in [the accused] some substantially cognitive impairment as a result of the use of alcohol and drugs?
A. I expect there would be some cognitive impairment. I don't believe it would necessarily be substantial.

….

Q. Do you say, leaving aside the ingestion of alcohol and methylamphetamine, that his experiencing of psychotic conditions of the hallucinatory type symptoms, might have resulted in him doing what he did in any event?
A. It might have. I can't say with certainty.

….

Q. And is it your view that the motivation behind his attack on [the deceased] was based in psychotic phenomenon?
A. Yes, it was. That was my view at the time and remains my view. The impression - the initial impression [the accused] gave me at the time of the assessment was that [the deceased] was in his immediate vicinity and had made disparaging comments in relation to [the accused’s] father. It was only on more detailed questioning it became evident that [the deceased] was not even in the same room and that [the deceased] never met [the accused’s] father and only had limited information about [the accused’s] family. In that context it was, to me, somewhat - was completely implausible that [the deceased] (sic) would have awoken from sleep, heard someone making disparaging comments of no relevance whatsoever about a relative of no immediate relevance being heard from a separate room. And that basis was my conclusion that [the accused] was acting in response to psychotic symptoms.

…

Q. Is it still your view that at the time of doing the acts that resulted in the death of [the deceased] that he was suffering, that [the accused] was suffering from mental illness?
A. Yes.

Q. That that mental illness was what resulted in him carrying out those acts?
A. Yes.

Q One aspect of [the accused’s] conduct that I would ask you to consider is what you understand was his conduct in the short term period after [the deceased] was attacked, that is that [the accused] reported having remained in the flat for an hour, or hours, considering what he was to do next. And reference was made to that in his interview with police. And following that, he leaving the flat and going to railway stations and then catching trains. Have you considered those things in the context of [the accused’s] mental condition?
A. As I recall, there was a period occurring which [the accused] appears to have realised his predicament, followed by a period of very disorganised behaviour, both in terms of him leaving the flat and catching various trains and ultimately finding himself down the south coast on a beach. The impression that I was given was that it was not a planned approach to the fleeing of a crime scene, and there were aspects of it that left me with the impression it was quite disorganised.

Q. Given the disorganised nature of it, does that have any bearing on your assessment of whether he was suffering from mental illness at the time or his understanding of the wrongness of his actions at the time?
A. A diminished ability to plan, organise oneself, or even execute a plan one may come to is a typical feature of mental illness. Certainly his conduct what not, in my view, reflective of someone who was taking an organised approach to fleeing a crime scene, leaving no trail, and ensuring that he was of limited likelihood of being apprehended. I considered it overall reflective of mental illness.

32 In cross-examination Dr Roberts gave the following evidence:

…

Q And so that it's your position, is it, sir, that either of those determinations are available to the court. That is not guilty by grounds of mental illness or that he was substantially impaired?
A. In the final statements of my report, having just glanced at it, I left it as a possibility that [the accused] may have a mental illness defence on the basis of those factors that I documented …. If all four factors are considered to have been operant (sic) at the time the court may consider a mental illness defence to be available to [the accused].

Q Just to be clear, a mental illness defence is a defence of not guilty on the grounds of mental illness?
A. That's correct.

Q. If the court were not to be of the view all four were made out and that not guilty of mental illness was not available, am I right in considering that you would be of the view that the defence of substantial impairment or abnormality of mind would be available?
A. That's correct.

Q. And the underlying condition that you point to which is required for the substantial impairment is, of course, is it not the schizophrenia?
A. Correct.

33 Dr Allnutt gave the following evidence:

Q And in summary you found that there was a family history, according to her at least, of manic depression and schizophrenia?
A. Yes.

Q. And you gave an opinion at the end of that report that you felt there were bases to put a defence of substantial impairment to this Court, didn't you?
A. Correct.

Q. In summary, you were of the view, were you not, that he, [the accused], at the time of the offence was suffering an underlying condition; is that right?
A. Yes.

Q. And that was--
A. That was schizophrenia.

Q. Schizophrenia. And were you, in a sense, confirmed in the firmness of that diagnosis by the conversation you had with [the accused’s] mother?
A. That's correct.

Q. Is that because there is some genetic link that's to be found in the literature between people in families suffering from such illnesses as schizophrenia?
A. That would be one of the significant factors, yes.

Q. You note at the time you saw [the accused] on 31 October 2008 that he was continuing to manifest unusual perceptual disturbances in the absence of substances?
A. That's correct.

Q. And that is of significance in your view; is it not?
A. That's correct.

Q. That he, in your view by that time, 31 October, now had a mental illness, perhaps triggered by substances, but independent by that stage, independent of--
A. Yes. When I first saw him, my initial impression was this was probably a drug induced or amphetamine induced psychosis. Amphetamine induced psychosis can induce a schizophrenia-like syndrome of symptoms that can persist for quite lengthy periods of time. At that time, in my differential, it would have been schizophrenia, but having received information from the mother where there was really strong evidence of a really strong vulnerability to mental illness, such as schizophrenia, I thought it was fair to conclude that there was probably significant internal vulnerability to schizophrenia and that it more likely was the case that he has a tendency to manifest schizophrenia uncovered by substances.

Q. And you understand, doctor, that in terms of the substantial impairment defence, the question of intoxication is a question to be ignored?
A. Yes.

Q. Do I take it, therefore, that in your opinion the intoxication was not itself the active cause of the disturbed perceptions, but that there was at that time also an underlying condition of schizophrenia; is that right?
A. Correct.

However, in a case like this it's a difficult determination to make

…

Look, the two arms of the mental illness defence kind of lie on a spectrum of severity, and in a case like this it's difficult to know where to place the line. I think it's quite a subjective decision - it's very subjective in this case and experts might differ as to where they draw the line

Clearly he understood the nature and quality of his actions immediately after the act, and if the mental illness was still active, he should not have known that - if that was still active at the time. He might not have known the nature and quality of his actions because he was highly emotionally aroused at the time and overreacted, and also intoxicated. But I think the evidence is not so strong that one can say that due to a disease of the mind he lost the capacity to know the nature and quality of the act.

With regard to the wrongfulness of the act, there is evidence that afterwards he was aware that what he'd done was wrong

his justification was delusionally driven and this is where it's difficult to determine

But it's a difficult determination to make and it's a grey - it's a marginal case with regard to determining those two

If I could make one correction

Q Yes.
A In my fourth paragraph I said he began apologising, it wasn’t him that apologised, it was the victim .

Q On page 2 of your report ?
A On page 2, paragraph 4, it wasn’t the victim, the victim never apologised, it meant he never apologised, the victim apologised. So I would delete: “Began apologising concluding he had snapped”. But the impression one gets from the evidence is that soon afterwards he has an awareness of wrongfulness and that’s the point I was trying to make.

Because you now understand it to be the fact that the deceased began apologising, and as the facts have unfolded that, as it were, incited an additional attack from [the accused]?

Correct. And that in a sense then does go to, to some degree, to mental illness defence, because it is also evidence of the degree of conviction that he believed that the person had insulted his father. He saw “sorry, sorry” as the victim apologising for having said what he thought he had said

34 In cross-examination he said:

Q. You say that, as I understand it, the distinction that you're able to make between him having mental illness in terms of the M’cNaghten rules is that you consider that his conduct after or shortly afterwards is indicative of an understanding of the wrongfulness of his actions?
A. Yes.

So there are two options: There's the option that you have put forward, and that's an option, or an explanation, and there's the explanation that he realised what he'd done was wrong, he was emotionally distressed and distraught at that realisation and decamped and travelled around the train, probably wondering what to do. It's difficult to know which one of those is applicable here, I'd say that's probably an evidentiary matter for the Court to determine. So that's my point.

What I'm saying is I don't believe he suffered a disease of the mind that impaired his capacity to know the nature and quality of his actions. There was an added layer that came on. There were two added layers: One was that he was disinhibited because he probably was intoxicated, and the other one was that he was probably really angry. And when people are acting in anger, they often don't recall the offence, sometimes, or they can describe exactly that, which is: I didn't realise what I was doing at the time. That's not necessarily primarily because of a disease of the mind, I accept it might be secondarily because of the disease of the mind because of the emotion that he felt which was one of rage and anger. But I don't think the disease of the mind deprived him of the capacity to know the nature and quality of his actions. …

Q. You're quite satisfied he had an underlying condition, namely, the schizophrenia?
A. Yes.

Q. Which is another way of expressing it would be to say that he had a disease of the mind at the time, namely, schizophrenia; is that right?
A. Well I think the Courts would define that as a disease of the mind, yes.

The final submissions

35 The Crown submitted, that the opinion of Dr Roberts, expressed both in his report and his evidence, should be accepted. The consequence, so it was contended, was that a special verdict of not guilty of murder by reason of mental illness, pursuant to s 38(1) of the Mental Health (Forensic Provisions) Act 1990, should be returned. Furthermore, it was submitted that the concession made by Dr Allnutt in his evidence (in the passage which is underlined) served to undermine his initial opinion that the accused’s conduct in the aftermath of the killing demonstrated that he knew, at the time of the killing, that what he was doing was wrong. Mr Winch, in final submissions, candidly acknowledged the force of that argument. Moreover, Mr Winch recognised that the effect of Dr Allnutt’s evidence upon this issue was also, in any event, decidedly equivocal. His submission in that respect was based upon the answers that appear in the passages which have been extracted from Dr Allnutt’s evidence and which, for convenience, appear in bold type. In light of those considerations, Mr Winch submitted that:

[d]espite the defence opening submission and the stance of Dr Allnutt, the psychiatrist called by the defence, it is conceded that on the evidence as it emerged in these proceedings and given that the level of proof is on the balance of probabilities, the Court would likely be satisfied that the defence of not guilty by way of mental illness has been established.

Determination

36 Although by the end of the proceedings, the parties were in agreement as to the appropriate order which should be made, it is still necessary for me to reach my own conclusion about the matter. Nevertheless, I should observe that, in my view, the concessions made by Mr Winch in final submissions were entirely appropriate given the manner in which the evidence ultimately unfolded. The truth of the matter is that the difference in the opinions of the two experts was decidedly marginal. Furthermore, in my view, particular care must be taken in a case such as the present, in placing too much emphasis upon the conduct of the accused in the aftermath of the fatal incident as providing any reliable indication as to the state of his knowledge concerning the wrongfulness of his actions at the time that he killed the deceased. Upon this issue, were it strictly necessary to determine the issue, I would prefer the opinion of Dr Roberts for the reasons which he advanced. I am fortified in that view by the acceptance by Mr Winch of the impact upon Dr Allnutt’s opinion which arose from his misunderstanding of that part of the evidence to which reference was made earlier.

37 There can be little doubt that the accused’s conduct was the product of his schizophrenia, a condition which appears in his case to have arisen from the coincidence of both genetic and environmental factors. That said, although I have some misgivings about the opinion expressed by Dr Roberts that the accused did not know the nature and quality of his acts, I nevertheless readily accept, on the balance of probabilities, that the accused was labouring under such a defect of reason from a disease of the mind that he did not know, at the relevant time, that what he was doing was wrong.

38 In arriving at that conclusion, I have had due regard to s 37 of the Mental Health (Forensic Provisions) Act which is in the following terms:

If, on the trial of a person charged with an offence, a question is raised as to whether the person was, at the time of commission of the offence, mentally ill as referred to in section 38, the Court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings and must include in its explanation:

(a) a reference to the existence and composition of the Tribunal, and

(b) a reference to the relevant functions of the Tribunal with respect to forensic patients, including a reference to the requirements of this Act that the Tribunal may make an order for the release of a person detained in accordance with section 39 only if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

39 As to the functions of the Tribunal see R v Coleman [2010] NSWSC 177 [at paras 69-79]

40 Given the conclusion at which I have arrived, it is unnecessary to consider the question of substantial impairment, although I observe that the evidence upon that issue appears to be all one way.

Orders

41 In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the charge of murder by reason of mental illness.

42 In accordance with s 39(1) of that Act, I order that Gary Peter Sevi be detained in the 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.

43 I direct that, as soon as practicable, the Registrar notify the Minister for Health and the Mental Health Review Tribunal of this order.

44 Finally, I would like to take the opportunity of extending my sympathy to Mr Maher’s family, who would undoubtedly be deeply affected by this tragic event.

**********

07/05/2010 - Word "deceased" replaced with "accused" - Paragraph(s) Paragraph 8

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Citations

R v Sevi [2010] NSWSC 387

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

4

R v Jennings [2005] NSWSC 789

R v Falconer [1990] HCA 49

CITATION:	R v Sevi [2010] NSWSC 387 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21/04/2010, 27/04/2010, 28/04/2010, 03/05/2010
JUDGMENT DATE :	4 May 2010
JUDGMENT OF:	Buddin J
DECISION:	1 In accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990, I find the accused not guilty of the charge of murder by reason of mental illness. 2 In accordance with s 39(1) of that Act, I order that Gary Peter Sevi be detained in the 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. 3 I direct that, as soon as practicable, the Registrar notify the Minister for Health and the Mental Health Review Tribunal of this order.
CATCHWORDS:	Trial procedure - offence of murder - trial by judge alone - whether "defence" of mental illness available
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900 Evidence Act Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	R v Coleman [2010] NSWSC 177 R v Jennings [2005] NSWSC 789 R v Porter (1936) 55 CLR 182 Stapleton v The Queen (1952) 86 CLR 358
PARTIES:	Regina Gary Peter Sevi
FILE NUMBER(S):	SC 2008/166941
COUNSEL:	P Barrett (Crown) P Winch (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Crown) S O'Connor (Legal Aid Commission NSW) (Accused)