R v T T
[2008] VSC 105
•7 April 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1555 of 2007
| THE QUEEN |
| v |
| TT |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2008 | |
DATE OF RULING | 7 April 2008 | |
CASE MAY BE CITED AS: | R v TT | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 105 | |
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Criminal Law – Intentionally cause serious injury and recklessly cause serious injury – Plea of not guilty – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Defence of mental impairment
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Papas | Office of Public Prosecutions |
| For the Defendant | Mr M. Gleeson | Michael J. Gleeson & Associates |
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TABLE OF CONTENTS
Introduction........................................................................................................................................ 2
Factual background........................................................................................................................... 3
The application................................................................................................................................... 5
The evidence....................................................................................................................................... 5
Consequences under the Act........................................................................................................... 6
Conclusion........................................................................................................................................... 7
Orders................................................................................................................................................... 7
HIS HONOUR:
Introduction
The defendant was presented on two counts arising out of one incident namely intentionally causing serious injury to his brother D and recklessly causing serious injury to B, his niece, on 29 October 2006, at his brother’s house at Sunshine West.
When arraigned the defendant pleaded not guilty to both counts by reason of mental impairment as provided by Section 20 Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (“the Act”).
Statutory framework
Pursuant to s 21(4) of the Act the prosecution and defence have agreed that the proposed evidence established the defence of mental impairment. The Act then provides that the trial judge may hear the evidence and determine whether the defence of mental impairment is established.
The defence of mental impairment is defined in s. 20(1) of the Act in these terms:
“The defence of mental impairment is established for a person charged with an offence if at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that (a) he or she did not know the nature and quality of the conduct or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people was wrong).”
S. 20(2) provides:
“If the defence of mental impairment is established, the person must be found not guilty because of mental impairment”.
It is the second limb, (b), of the definition of mental impairment within s. 20(1) that arises for consideration here; if I am satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, a verdict of not guilty because of mental impairment can be entered. If I am not so satisfied, then an order that the charges be heard by a jury must be made.
Factual background
The defendant is aged 33 having been born in 1974 in Vietnam. Both his parents are deceased; he has two older brothers and one younger sister in Australia, as well as another brother in Europe. He has no children.[1]
[1]Report of Dr Sullivan 23 March 2007 at [5].
He has suffered from schizophrenia, a serious mental illness, for a long time, initially diagnosed in 1996. Since then he has been hospitalised on three occasions and in 2000 he was transferred to the care of his local Area Mental Health Service. Prior to the incident he had been on medication for some time. However it appears that at the time of the incident he had unilaterally ceased taking his medication, clozapine – an anti-psychotic drug used to control his schizophrenia.[2]
[2]Report of Dr Sullivan 23 March 2007 at [9] – [11].
At the time of the incident the defendant was living with his brother D at Sunshine West. D had a de facto relationship with V. The couple have two children, N (born 2004) and B (born 2006). V and the two children live separately to D in West Footscray.
On Saturday 28 October 2006 V and the two children stayed overnight at D’s house in Sunshine West with the Defendant. The next day, at about 7.00 pm the defendant, D, V and the girls sat down and had dinner. The defendant seemed normal during the dinner and was very quiet. After dinner D took the two girls into his bedroom and lay down on the bed with B whilst N was playing in the room.
Between 8.00 pm and 8.30 pm, the defendant came into D’s bedroom without knocking. D noticed that the Defendant’s face was pale and that his eyes were very red. B was on the bed in the arms of D. Without warning the defendant raised his hand and D saw that he had a knife. The defendant then stabbed D in the face and also cut B on the forehead. He raised his arm to strike again and then there was a struggle. Fortuitously and bravely D was able to subdue his brother and prevent further injury to himself and his daughter.
As a result of the attack D suffered serious injury. He sustained a 5cm incision wound to the left cheek, bruising to the face and a sub‑conjunctival haemorrhage to the left eye. B also suffered a serious injury. She suffered a 5cm gaping wound above the eyebrows.
Although the immediate results of the attack were appalling the physical outcome for D and B has, thankfully, been good. D has significant scarring but no long-term impairment. B has, thanks to skilled microsurgery, a relatively inconspicuous scar on her upper scalp which will not carry any ongoing consequences.
At 00:30 on 30 November 2006 the defendant was interviewed at Sunshine police station by Dr Andrew Buck, Clinical Forensic Medicine Registrar of the Victorian Institute of Forensic Medicine who considered him unfit for police interview. Dr Buck reviewed the defendant again later that same day and concluded that he was not fit for interview due to an active psychiatric condition and further said that if remanded the defendant would require formal psychiatric assessment and treatment.[3]
[3]Statement and notes of Dr Andrew Buck dated 1 November 2006 and 30 October 2006 respectively.
The defendant was granted bail on the 26 March 2007 and has since that time been a resident at the Victoria Street program in Brunswick. This is an in-house supervised facility which enables him to mix with members of the community as well as to be under relatively close supervision. It is a condition of his bail that he reside at the Victoria Street Program and there is no suggestion that he has not been compliant with the conditions of his bail. He self-medicates on clozapine which is supervised through the Program.
When asked by the police D said that he didn’t know why his brother attacked him, that he didn’t want him charged, that he wanted him to get proper treatment for his illness instead of going to prison.
V said she feels sorry for the defendant, that she doesn’t want him to go to jail, that she wants him to get treatment and that he needs medication to get better.
The application
As I have said both counsel for the Crown and the defence submit that I should find the defendant not guilty by reason of mental impairment and that such a finding be recorded on the two counts on the presentment.
The evidence on the hearing
The photographs of the scene of the attacks reveal what appears to have been a frenzied attack by the defendant; the bedroom and the defendant being covered with blood and both D and V suffering significant injuries.
Senior Constable Scott, the informant gave evidence. He confirmed that both D and V believe that the attack was solely the product of the defendant’s deranged mind and neither, despite the trauma that they have been through, wishes him to be incarcerated. Rather they think that appropriate medical treatment is the most desirable solution.[4]
[4]T101 Dr Reid of the Community Forensic Mental Health Service prepared a report on 17 December 2007 after reviewing the defendant, Exhibit P2.
Two psychiatrists gave evidence before me. Each had prepared a report concerning the Defendant’s mental state at the time of the offences.
Dr Shannon Reid of the Community Forensic Mental Health Scheme gave evidence, that he examined the defendant on 14 December 2007 and again on 14 March 2008[5] and having reviewed the available material, concluded as follows: firstly that the defendant is fit to be tried and secondly that at the time of the incident the defendant was suffering from a mental impairment that had the effect that he could not reason with a moderate degree of sense and composure as to whether his conduct was wrong.
[5]Exhibit P2.
In viva voce evidence he affirmed this opinion “It appears highly likely that at the time of the conduct constituting the offence that [the defendant] was suffering from mental impairment”.[6] He identified the cause of effect of the conduct as being a relapse of the psychosis produced by his schizophrenic condition.
[6]T12.
He also went on to say that “It appears likely that at the time of the alleged conduct that [the defendant] could not reason with a moderate degree of sense and composure as to whether his conduct was wrong as a result of the effects of his illness”.
Dr Reid also said that he thought that the appropriate course in the event of a finding of not guilty was for the defendant to be supervised[7] under a non-custodial order. [8]
[7]Section 23(a) of the Act.
[8]T16.
Dr Sullivan, a consultant psychiatrist experienced in providing expert evidence concerning the Act, also gave evidence as to the defendant’s mental state at the time of the offences. He saw the defendant on 23 March 2007, prepared a report[9] and gave viva voce evidence. He stated that at that time he assessed the defendant he was fit to be tried however he believed that at the time of the offences the defendant was mentally impaired within the meaning of s. 20(1)(b) of the Act.
[9]Exhibit P3.
It was also Dr Sullivan’s opinion that the defendant would be a suitable candidate for a non-custodial supervision order given the attitude of his very supportive family, his progress on bail, his lack of any history of substance abuse and his compliancy with treatment.[10]
[10]T22.
Consequences under the Act
If the defendant is found not guilty pursuant to s. 20(1) because of mental impairment, s 23 provides that the court must either declare that the defendant be liable to supervision or order that he or she be released unconditionally.
Conclusion
I am satisfied on the evidence adduced that a defence of mental impairment under s 20 of the Act has been made out by the defendant. In those circumstances, I will direct that a verdict of not guilty to both counts because of mental impairment be recorded.
Section 23 requires me to either declare the defendant as liable to supervision or release him unconditionally. The evidence in my view on this matter is clear. The defendant should be the subject of supervision under Part V of the Act.
Orders
(a) I direct that a verdict of not guilty because of mental impairment be recorded in respect of the count of intentionally causing serious injury to D and the count of recklessly causing serious injury to B.
(b) In accordance with s 23(a) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I declare that the defendant is liable to supervision under Part 5 of the Act.
(c) I direct that the Secretary to the Department of Human Services or his or her nominee prepare and file within 30 days a certificate of available services pursuant to s.47 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(d) I direct that the hearing to determine the form of the supervision order take place on 23 May 2008 at 9.30 am.
(e) I order that, pursuant to s. 24(1)(a) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the defendant be granted bail on the special conditions as set out by Justice Teague on 5 November 2007.
(f) I grant liberty to the parties to apply.
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