R v Srdan RUJAK

[2007] NSWDC 129

CITATION:	R v Srdan RUJAK [2007] NSWDC 129
HEARING DATE(S):	18/06/07, 19/06/07
JUDGMENT DATE:	19 June 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	The accused is found not guilty by reason of mental illness of all charges.; I order that the accused be detained in the Mental Health Pod at the MRRC or other place as may be determined by the Justice Health authorities or the Mental Health Review Tribunal and that he undergo such psychiatric or other reviews as may be determined to be necessary prior to his release on such terms as to ongoing treatment and other conditions as are deemed to be appropriate in the light of those reviews particularly to ensure the safety of members of the public, as well as the accused, is not endangered.; I direct that the Registrar of the Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders.
CATCHWORDS:	Trial by Judge Alone - Not guilty by reason of mental illness - Special verdict
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Criminal Proceedings) Act
CASES CITED:	R v Presser (1958) VR 45 R v Minani [2005] NSWCCA 226 Hawkins v The Queen (1994) 179 CLR 500 R v Porter [1933] 55 CLR 182
PARTIES:	R Srdan Rujak
FILE NUMBER(S):	06/11/0879
COUNSEL:	Mr. R. Kimbell (Crown) Mr R. Mayne (Defence)
SOLICITORS:	Ms. A. Ilardo Ms. D. Tipper

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JUDGMENT
Indictment

1 On 18 June, 2006 the accused, Srdan RUJAK, was arraigned on an indictment which contained the following counts:

Count 1: On 4 April 2006 at Goulburn in the State of New South Wales, did maliciously cause Christopher TONG to contract a grievous bodily disease, namely Hepatitis C, with the intention of causing the said Christopher TONG to contract such grievous bodily disease.

The accused pleaded not guilty to this count which was brought under section 36(a) of the Crimes Act 1900.

In the alternative:

Count 2: On 4 April 2006 at Goulburn in the State of New South Wales, did maliciously inflict grievous bodily harm upon Christopher TONG.

The accused pleaded not guilty to this count which was brought under section 35(1)(b) of the Crimes Act 1900.

Count 3: On 4 April 2006 at Goulburn in the State of New South Wales, did attempt to maliciously cause Gregory HUGH to contract a grievous bodily disease, namely Hepatitis C, with the intention of causing the said Gregory HUGH to contract such grievous bodily disease.

The accused pleaded not guilty to this count which was brought under section 36(b) of the Crimes Act 1900.

In the alternative:

Count 4: On 4 April 2006 at Goulburn in the State of New South Wales, did assault Gregory HUGH, thereby then occasioning to him actual bodily harm.

The accused pleaded not guilty to this count which was brought under section 59 of the Crimes Act 1900.

Count 5: On 4 April 2006 at Goulburn in the State of New South Wales, did attempt to maliciously cause Lesley BURROWS to contract a grievous bodily disease, namely Hepatitis C, with the intention of causing the said Lesley BURROWS to contract such grievous bodily disease

The accused pleaded not guilty to this count which was brought under section 36(b) of the Crimes Act 1900.

In the alternative:

Count 6: On 4 April 2006 at Goulburn in the State of New South Wales, did assault Lesley BURROWS, thereby then occasioning to her actual bodily harm.

The accused pleaded not guilty to this count which was brought under section 59 of the Crimes Act 1900.

Count 7: On 4 April 2006 at Goulburn in the State of New South Wales, was armed with an offensive weapon, namely a knife, with intent to commit an indictable offence, namely to assault medical staff at the Chisholm Ross Centre.

The accused pleaded not guilty to this count which was brought under section 114(1)(a) of the Crimes Act 1900.

Election: Trial by Judge alone

2 Pursuant to section 132 of the Criminal Procedure Act 1986, the accused elected to be tried by a Judge alone. He had, before making the election (exhibit 1), sought and received advice from solicitors, namely, Ross Mayne (Trial Advocate of the Legal Aid Commission) who is an Australian legal practitioner.

3 The election - made with the consent of the DPP - was made on 12 June 2007 ie., prior to the date fixed for the trial. The Prosecutor’s consent (per Mr Kimbell of the DPP) is noted on that form of election and dated 15 June 2007. The trial commenced on 18 June 2007.

Specification of findings of fact and principles of law to be applied

4 Pursuant to sub-sections 133 (2) and (3) of the Criminal Procedure Act, I am required to specify the principles of law applied by me and the findings of fact on which I have relied. These matters are set out below.

Preliminary issue: Fitness to be tried : Presser criteria

5 I have read the reports of Drs Roberts (exhibit 14), Allnutt (exhibits 16 and 17) and Giuffrida (exhibits 18 and 19). Those reports clearly canvassed the accused’s mental capacity and fitness for trial as does the accused’s solicitor.

6 Dr Allnutt (reports 18 October 2006 and 3 June 2007) was of the view that the accused had the capacity to understand what he was charged with, in particular stabbing a number of doctors and hospital staff. Dr Allnutt considered that the accused had the capacity to plead to the charges, understanding the options of those pleas and the consequences to him that he was likely to be able to give instructions as to his version of the facts and to understand and participate in the court proceedings with some limitations, in particular the substantial effect of any evidence.

7 Further, Dr Allnutt was of the opinion that the accused had the capacity to decide on what defence he would rely upon.

8 Dr Giuffrida also confirmed that the Presser criteria had been satisfied.

9 Both Drs Allnutt and Giuffrida were present in court on the first day of the trial and interviewed the accused. Both stated that their comments in relation to the accused remained apposite.

10 I am satisfied and find that the accused is fit to be tried.

11 Pursuant to section 13 of the Mental Health (Criminal Proceedings) Act, I now proceed to consider the evidence against him and whether the Crown has proved its case against him beyond reasonable doubt.

Evidence in relation to each of the elements

12 Mr Mayne, solicitor for the accused and an experienced trial advocate with the NSW Legal Aid Commission, has conceded that there is evidence, which is not disputed by the accused, from which I could find that all the basal facts necessary to find each of the counts proved beyond reasonable doubt.

13 Consistently with the decision of the Court of Criminal Appeal in R v Minani [2005] NSWCCA 226 (Spigelman CJ., Hunt AJA, and Howie J), even where there is no dispute as to the facts, including where there is an agreed statement of facts, I need to make each of the findings necessary on whether the elements of the offence have been satisfied beyond reasonable doubt to establish the guilt of the accused of the crime charged.

14 I have reviewed all the evidence in the light of the helpful schedule prepared by the Crown in relation to each of the counts. I am satisfied on the evidence that:

- the events in relation to each of the counts occurred on 4 April, 2006 at Goulburn in New South Wales;
- that the persons named in the indictments were the persons assaulted or affected by the actions of the accused;
- from the conceded facts (which are in any event corroborated by the statements made by the accused to the various psychiatrists) that he was aware that he had hepatitis C which is a ‘really serious bodily disease’;

15 Further, I am satisfied by the evidence of Professor Haber (exhibit 20) that the contraction of hepatitis C virus constitutes really serious injury given its effects, its persistence and its impact on a medical, physiological and psychological levels and the nature of the treatment and length of time required for that treatment.

16 I am also satisfied that all relevant procedures were followed by the police in relation to the collection and identification of evidence and the conduct of the ERISP with the accused on 28 August, 2006.

17 The elements of each of the counts are as set out below. Counts 1, 3, 5 and 7 are crimes of specific intent. The alternative counts, 2, 4 and 6 are not.

18 The way the issue of intent should be dealt with in a trial by judge alone was referred to in R v Minani esp. at [32] following Hawkins v The Queen (1994) 179 CLR 500 at 510.

“ In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused’s act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent.”

19 Here in answer to the first question in relation to all the counts I am satisfied that it was the acts of the accused which caused the matter the subject of each of the counts.

20 The real issue in this case is whether the accused had a mental illness which answers question 2 and if not, if he had the specific intent needed in relation to the remaining counts.

21 In my view it is clear that the accused:

- Planned to cause that disease to be contracted by, or inflicted on, the persons named in the various counts on the indictment;
- Intended to occasion to the persons named actual bodily harm; and
- Knew what he was doing in terms of using the needle and syringe

22 However, the evidence of all three psychiatrists is that, at the time, the accused did not have the capacity to know the wrongfulness of his actions. His thinking processes were irrational (Dr Allnutt) and defective arising from his disease of the mind -namely, the chronic paranoid schizophrenia – Drs Roberts and Guiffrida.

Elements

23 The relevant elements and the need to be satisfied beyond reasonable doubt as to the element of intent in each count is as follows:

Count 1 (maliciously cause Christopher TONG to contract a grievous bodily disease):

(1) The accused caused another person to contract a grievous bodily disease; and
(2) The act was done maliciously.

“Maliciously”

: Every act done of malice, whether done … with intent to injure some person or persons, … and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, … of every indictment … where malice is by law an ingredient in the crime’.

In the alternative:

(maliciously inflict grievous bodily harm upon Christopher TONG)

(1) The accused inflicted grievous bodily harm, upon a person; and
(2) The act was done maliciously.

Grievous bodily harm:

body injury of a really serious kind.

(attempt to maliciously cause Gregory HUGH to contract a grievous bodily disease, namely Hepatitis C, with intent)

(1) The accused attempted;
(2) To cause another person to contract a grievous bodily disease; and
(2) The act was done maliciously.

In the alternative

(assault Dr Hugh, thereby then occasioning to him actual bodily harm)

(1) The accused assaulted the victim; and
(2) As a consequence of that assault, the victim suffered actual bodily harm.

Assault:

any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

Actual bodily harm: the term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling.

(attempt to maliciously cause Lesley Burrows to contract a grievous bodily disease with the intention …)

(1) The accused attempted;
(2) To cause another person to contract a grievous bodily disease; and
(3) The act was done maliciously.

In the alternative

(assault Lesley Burrows, thereby then occasioning to her actual bodily harm)

(1) The accused assaulted the victim; and
(2) As a consequence of that assault, the victim suffered actual bodily harm.

(armed with an offensive weapon, namely a knife, with intent to assault medical staff at the Chisholm Ross Centre)

(1) The accused was armed with a weapon or instrument; and
(2) The accused intended to commit an indictable offence (to assault medical staff at the Chisholm Ross Centre).

Armed:

in relation to a weapon, or instrument, or an offensive weapon, or instrument, that is a dangerous weapon, includes bearing or having the immediate physical possession of the weapon, or instrument.

means:

(a) a dangerous weapon, or
…
(c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm.

Intent:

A person intends an event if they decide to bring it about by their act or omission and if they foresee an event as the inevitable consequence of their act or omission, they intend to bring about that result even if was not the purpose of their act.

Evidence

24 The Crown brief on evidence was tendered without opposition. That included:

1. Crown summary of case

2. Signed admissions by accused dated 12 June 2007

3. Christopher TONG - 5 April 2006; 11 May 2006

4. Gregory HUGH - 20 April 2006

5. Lesley BURROWS - 25 September 2006

6. Kerry FITZSIMMONS - 21 April 2006

7. Robert Geoffrey LEGGETT - 19 April 2006

8. Narelle JONES - 19 April 2006

9. Milanka RUJAK - 17 July 2006

10. Senior Constable Sarah Jane WILKINSON - 21 September 2006

11. ERISP conducted with the accused on 28 August, 2006

12. Lisa-Ann WEDERVANG - 28 May 2007.

13. Dr Katherine TURNER - 5 June 2007.

14. Dr Samson ROBERTS, Consultant Forensic Psychiatrist - 12 June 2007.

15. Form of election.

16. Dr Allnutt - report dated 18 October 2006

17. Dr Allnutt - report dated 3 June 2007.

18. Dr Michael Giuffrida, Forensic Psychiatrist, 7 March 2007

19. Dr Michael Giuffrida, Forensic Psychiatrist, 7 March 2007

Various parts of these statements relevant to the elements of the counts were read in Court.

20. Professor Paul Haber report dated 12 June, 2007.

Admissions

25 The accused makes the following admissions:

(1) That the accused was diagnosed with Hepatitis C on or about 2001;

(2) The accused was aware he had Hepatitis C as of the 3/4/2006;
(3) That Doctor Christopher Tong contracted Hepatitis C as a consequence of the acts of the accused on the 4/4/2006;
(4) That Hepatitis C is a virus that is regarded as “really serious bodily disease” and or “really serious harm”.

Accused: ERISP

26 The accused did not give evidence. An ERISP was conducted with him. Many of the answers given by him were consistent with the account he gave to the three psychiatrists who examined him.

27 I find that the accused was aware of his condition, namely schizophrenia and psychosis (ERISP Q/A 111) and that he was aware of his need to take medication for that schizophrenia and that he was dangerous without the medication (Q/A 114-117). He was also aware that he had Hepatitis C and that he had had that condition since about 2000 or 2001 (Q/A 163/164).

28 I also find that the accused intended to hurt the doctors involved in the assaults, that he planned on assaulting them and hurting them (Q/A 125); further, that he intended to “hurt them good and properly” (Q/A 130) and that he was going to do that by passing on a disease through the syringes, namely Hepatitis C (Q/A 131/132).

29 In an interview with Dr Roberts, Mr Rujak stated that he had been planning his actions over the proceedings week. He was able to describe where he got the syringes in the Chisholm Ross Centre as well as the knife from the supermarket.

30 The apparent reason for his actions were that the accused believed that the doctor’s were trying to get rid of him with medications and that he thought his life was in danger (Q/A 157/158). He formed that intention when he was in psychosis (Q/A 189).

31 He said that the primary reason he had for stabbing the doctors and nurses was the voices and that he believed they had something to do with the agency which deals with the microchips (Q/A 286).

DNA

32 DNA testing was carried out on the needle and the inside of the syringes as well as various items of clothing belonging to the complainant. There were also DNA tests carried out on reference samples from Leslie Burrows, Christopher Tong, and the accused.

33 The accused had the same DNA profile as the DNA recovered from the inside of the syringes and the stained area of the long sleeved shirt. That profile was expected to occur in fewer than one in ten billion individuals in the general population.

Psychiatric evidence

34 The Crown relies on the report from Dr Sampson Roberts Consultant Forensic Psychiatrist, dated 12 June 2007 (exhibit 14).

35 Dr Roberts’ conclusions (Exhibit 14, page 20) is that Mr Rujak’s mental state by virtue of his psychotic illness, schizophrenia, was influencing his reasoning with respect to the wrongfulness of his act.

36 Dr Roberts agreed with Dr Allnutt’s conclusion (page 9) that he was suffering a defect of reasoning by virtue of schizophrenia of the paranoid type. His view was that the offender was not cognisant of the wrongfulness of the act.

Dr Allnutt

37 Dr Allnutt provided two reports dated 18 October 2006 and 3 June 2007 (exhibits 16 and 17).

38 In his first report Dr Allnutt said that the accused was manifesting symptoms consistent with a schizophrenic illness which were active at the material time. Those included persecutory delusions, auditory hallucinations, and probably ideas of reference. To that extent, Dr Allnutt’s view was that the accused met the legal definition of a ‘disease of the mind’. He had a significantly impaired capacity to reason and was experiencing a defect of reason.

39 However, Dr Allnutt thought that the accused maintained the capacity to reason about the nature and the quality of his actions, to understand that he had Hepatitis C, that he could infect others with Hepatitis C, and that if he withdrew blood he would extract Hepatitis C into his blood and by piercing the skin of someone else that they would be infected with Hepatitis C.

40 Dr Allnutt was also of the opinion that the accused’s defect of reason was of a nature and severity that it would have impacted significantly on his capacity to know the wrongfulness of his actions.

41 In his second report of 3 June 2007, Dr Allnutt said that there had been some improvement in the accused’s mental state since he originally saw the accused. However, the accused continued to manifest ongoing delusional beliefs and probably auditory hallucinations and he presented as mentally unwell.

42 Dr Allnutt wanted the opportunity to reassess the accused’s mental state on the day of the trial and to confirm his improvement as to fitness.

43 Dr Allnutt amplified his earlier opinion that the accused was experiencing a “defect of reason”. He defined the psychosis as a mental illness that, by it’s nature, impacted on a persons capacity to be aware that their thoughts might or might not be irrational; further, to make erroneous and irrational interpretations of the environment and at times to act on those interpretations.

44 Viewed against the background of this case, Dr Allnutt was of the view that the mental illness, while it caused a defect of reason, was not of a nature and severity to impact significantly on the accused’s capacity to know the nature and quality of his actions. He understood what a syringe and needle might do. He was aware that he had Hepatitis C and that if he stabbed others with a syringe with Hepatitis C blood others might contract that.

45 However, Dr Allnutt was of the view that the accused was “significantly compromised in his capacity to know the wrongfulness of his actions”. His thinking process was irrational such that he was incapable of reasoning about the wrongfulness of the matter.

Dr Michael Giuffrida

46 Dr Michael Giuffrida, Forensic Psychiatrist, provided two reports: 7 March 2007 (exhibit 18) and 7 March 2007 (exhibit 19).

47 Dr Giuffrida diagnosed Mr Rujak as suffering from chronic treatment resistant paranoid schizophrenia and to be fit for trial.

48 In his second report, Dr Giuffrida was of the opinion that Mr Rujak was labouring under a defect of reason, namely, the delusional belief that the two doctors and nurse had collaborated in a conspiracy to place a microchip in his head; that the doctors were using this to monitor and control his thoughts and his actions. The doctors and nurse were therefore the direct focus of his long-held bizarre delusional beliefs.

49 The defect of reasoning arose from the disease of the mind, being the chronic paranoid schizophrenia such that Mr Rujak did not appreciate that what he was doing was morally wrong.

Crown case

50 The Crown concedes that the evidence would establish that the defence of mental illness would be available to the accused on the evidence.

Defence case

51 The defence concedes that the evidence establishes that the accused committed the various acts the subject of each of the complaints but submits that on the evidence the defence of mental illness is established.

Opinion/expert evidence

52 I am satisfied that the expert evidence here can be relied on to establish that the defence of mental illness is available to the accused and should be accepted as applicable in the factual circumstances of this case. Each of the three psychiatrists have come to essentially the same conclusion based on their respective interviews with the accused and reviewing various prior hospital and medical notes and reports. Each refer to the accused’s schizophrenia, variously described as his chronic paranoid schizophrenia, his persisting intractable and irrational delusions, persecutory beliefs and, in some cases, hallucinations to the effect that he is the victim of a government conspiracy which has included having microchips placed in his head and controlling his thoughts. Each are of the opinion that he was not cognizant of the wrongfulness of his act.

53 Both Drs Allnutt and Guiffrida had interviewed the accused on 18 June, 2007 and confirmed their earlier views as a result of that latter interview.

Directions

54 If this was a trial before a jury, the jury would be directed, as I have directed myself that:

- The accused is under no obligation to give evidence and that the onus rests on the Crown to establish all the elements of the offence beyond reasonable doubt as to each element of each offence. Further, that the burden rests on the Crown at all stages of the trial. Here that includes satisfying the element of intent in relation to each of the counts.

- The accused’s right to elect not to give evidence or call evidence to rebut the Crown case in whole or in part or to offer an explanation himself. No inferences can be drawn adverse to the accused merely because he did not give evidence. Here evidence as to the accused’s intent is available from the ERISP conducted with him.

- The seven charges are being heard together as a matter of convenience but each should be considered separately in relation to the evidence relevant to each of the counts. A separate verdict is required on each count. A separate consideration of the evidence of intent is required in relation to each count.

- That inferences can be drawn and relied upon from facts found to have been established beyond reasonable doubt provided that they are the only inferences capable of being drawn from those primary facts. That is relevant in this case in relation to the consideration of the accused’s statement at the time of the assaults apologising to his mother.

- With alternative charges, the approach to be adopted is to consider the primary count and, if and only if the accused is acquitted on that count, to go on to consider the alternative count.

- Specific directions should be applied in accordance with the directions given by Dixon J as he then was, sitting in the High Court’s original jurisdiction in a murder case in R v Porter [1933] 55 CLR 182 at 185ff. as to the legal standard of disease, disorder or disturbance of the mind sufficient to establish a ground of irresponsibility for crime, namely that he was unable through the disordered condition of his mind to appreciate that the acts he was doing were wrong.

Consideration

55 I am satisfied on the evidence that the accused did the acts the subject of each of the counts, that he intended to do those acts but, in accordance with the opinion of all three psychiatrists, that he did not appreciate the wrongfulness of his actions and therefore did not have the capacity to form the requisite intent. There is no evidence to the contrary.

56 I therefore find in relation to each count that the accused did not have the necessary capacity at the time of the offences to be able to be regarded as criminally responsible for the acts the subject of each particular count.

Conclusion

57 I find in relation to each count on the indictment that the accused did the acts the subject of each of those counts but was mentally ill at the time when he did each of those acts.

58 Accordingly I find that the accused is not guilty of each count on the indictment by reason of mental illness.

Remand in custody pending court order after special verdict

59 In trial proceedings where a special verdict of not guilty by reason of mental illness is returned, I have the power under s 38 to remand the person in custody, pending a court order under s 39, as to whether they are to be detained or released unconditionally or subject to conditions: s 38. Sch.1[22].

60 Section 39 (2) and (3) prevent a Court from making an order releasing a person unless it is satisfied, on the balance of probabilities, that the person’s safety or that of any member of the public will not be seriously endangered by the person’s release.

61 Here the Crown seeks that the accused be detained given the undisputed facts set out in the various statements. That is not opposed by the accused’s counsel.

Orders

62 The accused is found not guilty by reason of mental illness of all charges

63 I order that the accused be detained in the Mental Health Pod at the MRRC or other place as may be determined by the Justice Health authorities or the Mental Health Review Tribunal and that he undergo such psychiatric or other reviews as may be determined to be necessary prior to his release on such terms as to ongoing treatment and other conditions as are deemed to be appropriate in the light of those reviews particularly to ensure the safety of members of the public, as well as the accused, is not endangered.

64 I direct that the Registrar of the Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of the orders.

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