R v Toki, Martin

[2009] NSWDC 186

CITATION:	R v Toki, Martin [2009] NSWDC 186
HEARING DATE(S):	12/02/09, 16/02/09, 17/02/09, 18/02/09, 19/02/09, 20/02/09, 23/02/09 and 24/02/09
JUDGMENT DATE:	16 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Count 1 (8/07/07): Not Guilty on the grounds of mental illness. Count 2 (30/08/07): Not Guilty Count 3 (26/09/07): Not Guilty on the grounds of mental illness. In regards to count 1 and 2. HH ordered Mr Toki to be placed in a mental health hospital.
CATCHWORDS:	Criminal Law - Judge alone trial - malicious damage by fire (x3) - sentenced prisoner - fires set in cells - defence concede fire - issues - causation - mental health of accused at time of fire - findings - fires in two cells ignited by accused - psychological profile on date of each fire assessed - mental illness defence made out in 2 charges - finding - punitive approach of depreivation of property and priviledges by custodial authorities exacerbated forces of accused's mental deterioration.
PARTIES:	Regina Martin Tuamuri Toki
FILE NUMBER(S):	2008/0765
COUNSEL:	Crown: M Fox - Crown Prosecutor Accused: S Egan - Public Defender
SOLICITORS:	Mr M. Slattery - O.D.P.P. M.D. Walsh, Goulburn

1. Martin Toki is a sentenced prisoner. While the details of his offence are not before the court, what is before the court is that he is serving a very substantial sentence. He was born in the Cook Islands forty two years ago. From there he moved to New Zealand, aged six and to Australia in his early teenage years. Some time after he commenced his sentence, he was shifted to the segregation unit at the Goulburn Correctional Centre. He is housed in the High Risk Management Unit (HRMU). He told Dr Neilson, “I have been isolated for seven years...in segregation for six years...including four years straight”.

2. Dr Neilson noted Toki was unable to give a coherent account of why he had been kept in isolation. The Crown has not sought to dispute that part of the history given by Toki to Dr Neilson. It was during this later period, of segregation that four fires occurred in cells occupied by Toki. The Crown has charged him with three counts of malicious damage by means of fire the structures, fixtures and contents of the cell he was occupying. The first offence is alleged to have occurred on 8 July 2006 in cell 7(the Cell 7 fire). The second on 30 August 2006 in cell 2(the Cell 2 fire). And the third on 26 September 2007 in cell 12(the Cell 12 fire). To each of these charges, he has pleaded not guilty. He has elected to be tried by judge alone. His election agreed to by the prosecution is exhibit A. In those circumstances, the functions of the trial judge and the functions of the jury fall to me. I must determine the facts of the case. I must also remind myself of the relevant principles of law that must be applied. Bearing in mind the plea of not guilty, I must remind myself the appropriate starting point is to accept what the accused says, that he is not guilty and is entitled to remain so, unless and until if it be the case, the Crown proves his guilt and proves that guilt beyond a reasonable doubt.

3. I remind myself each of the charges has only one essential element. Namely that on the relevant date, the accused did maliciously damage, by means of fire the structures, fixtures and contents of the relevant cell. For the purposes of this offence, I take, “maliciously” to mean “deliberately” or “recklessly”.

4. The findings of fact are made less difficult for me because the defence concede the fact of fire in each of the occupied cells on the relevant day is not disputed. Damage to the structures, fixtures and contents of each occupied cell by means of fire is not disputed. What is in dispute in respect of the Cell 2 fire is the cause of the fire.

5. The accused case is the fire was caused by an electrical occurrence for which he was not responsible.

6. In respect of the Cell 7 and 12 fires and in the event that I found the Cell 2 fire deliberately lit. A defence of mental illness is advanced by the accused.

7. Findings of fact are for me to make. I remind myself in making findings of fact, I may accept part or all of what a witness says. There are some criteria of value in assessing a witnesses testimony. I should remind myself of them. They include observing the demeanour, the attitude of the witness; the way in which he or she answered questions; whether the witness appeared to answer frankly or whether there was some attempted avoidance or obfuscation. Inconsistencies in evidence may be indicators of unreliability. Of course there may be other explanations for inconsistency such as a failure to understand a question or articulate an answer accurately. Where there is supporting evidence, I may the more readily accept a witness. In approaching this case, I must remember to remain impartial. I must put any bias or prejudice I may have to one side. I must look within myself if there is any area of potential bias and if so, put it to one side. I acknowledge there is evidence before me that demonstrates the accused has been in serious trouble with the law.

8. There is also evidence demonstrating that at least from the point of view of the Department of Corrective Services, the accused has been in serious trouble with them. These are matters which must play no part in my fact finding other than backgrounding why it is that the accused is housed in the HRMU. I remind myself to confine my findings to the sworn evidence, exhibits and conclusions of fact open on the direct evidence. I remind myself that such conclusions of fact as I draw from the direct evidence, even if they are to be adverse to the accused, are to be the only conclusions reasonably open on the evidence. I must recognise the difference between speculation and inference. Where more than one conclusion of fact is available then I would be speculating to draw any conclusion of fact from that evidence at all. Nor can I draw a conclusion of fact where there is no evidential foundation for it. Again that would be speculating.

9. I remind myself the fact that the accused gave evidence does not shift to the burden of proof. That burden of proving the guilt of the accused in the way I earlier indicated remains upon the Crown throughout this trial. I remind myself there was no obligation upon him to give evidence. The accused gave evidence in the trial. He could not have been compelled to do so. He has a right to silence. His evidence was subject to cross-examination. I have assumed the accused well knew he would be cross-examined when he gave his evidence. His willingness to give evidence even knowing it would be tested by cross-examination in circumstances where the court would pay particular regard to the testing of the accused evidence is a matter that can be taken into account in his favour. His evidence became evidence in the case. It may or some of it may have pointed towards his guilt or it may or some of it may have demonstrated difficulties the Crown had in proving his guilt.

10. Or it may have been capable of persuading the court of his innocence, not that he had any burden to do so. As with other evidence it may be accepted in whole or part, rejected in whole or part. If I am to reject the accused evidence, it must be upon some rational or reasoned basis.

11. 8 July 2006 was a Saturday. First Class Correctional Officer Ricky Smith had been with the Department of Corrective Services approaching nine years. On this Saturday he was working in the HRMU section of the Goulburn Correctional Centre. At 3.20pm, he was in the meal room with other officers. One of the officers notified those present, “There’s a fire alarm in unit 7”. A number of the officers including Ricky Smith responded. In his statement of 15 July 2007 which was tendered and is exhibit G. He said,

6. “I approached the front of cell 7 and I could see smoke coming out from around the door. This cell is occupied by inmate Martin Toki and he is a one- out prisoner in that cell. I saw Henry open the hatch at the front and myself and other officers retrieved a smoke hood each from the office. I saw Officer Henry and Harmer put their hoods on.”

7. Once the door was opened, heavy smoke came out of the cell. I recall the officers yelling at Toki to get out and there was no response. After about 30 seconds I saw Toki crawl out from the inside of the cell. I recall that Officer Henry and Harmer handcuffed Toki. I recall that he has some breathing difficulties. Harmer and Henry escorted him to the monitor room cell which was near the loading dock

That fire was attended by Darryl John Lawler, a station officer with the New South Wales Fire Brigade. There is a direct brigade alarm by which the fire brigade is notified of the fire. Its records indicate the Goulburn RS2 brigade was notified of the fire at 3.18 on 8 July 2006. Seven fire brigade personnel attended. By the time the fire brigade arrived at 3.26pm, the fire had been subdued.

12. It was described as “moderate”. It was the opinion of the relevant officer in the brigade that the initial form of heat ignition was a match. He regarded the ignition as suspicious. The material first ignited was bedding, blanket, sheet and comforter. The fire was confined to the room of origin. Another corrective services officer, Matthew Henry was also working in the HRMU on 8 July. He also attended cell 7. When he opened the door, there was a large quantity of thick black smoke coming from the cell. When the accused came from the cell he was half hunched over. Once out of the cell, Toki was secured and then monitored by Justice Health staff. At 11.25am on 9 July 2006, Detective(technical) Senior Constable Michael Hando from the Goulburn Crime Scene Investigation Unit attended the fire scene. He examined the cell and exercise yard adjacent to the cell noting the following;

· “There was an amount of fire suppressant powder on the floor of the cell and in the common area of the unit.

· The cell wall, ceiling and inspection window had sustained moderate to extensive fire damage with discolouring evident.

· The main area of damage was in the corner above the foot of the bed and above the bench.

· Flame, heat and smoke patterns were evident on the walls above the floor of the bed, above the bench and on the underside of the white surround.

· The underside of the bench and wall below had not been affected by the fire.

· There was liquid spatter marks and runs on the wall, desks and bed indicating the melting of a material by the heat of the fire.

· The double power point was not damaged and the light switch was only heat affected.

· Outside in the exercise yard there were two blue storage containers and the remains of a mattress bedding, shower curtain, clothing, newspaper and food products.

· The mattress had sustained extensive damage with one half completely consumed by the fire.

· One of the blue containers was a plastic bag containing boxes of matches, White Ox tobacco and Tally Ho papers.

· Also in the blue storage container were personnel documents and items contained in plastic bags.

· There was a portable television, jug, radio and walkman on the floor in the common area. These items were not damaged”

Senior Constable Hando took a number of photographs of this fire scene, which have been tendered in exhibit C and are C1 to 13. As a result of his examination, he concluded the following:

· The area of origin [of the fire] appeared to be towards the foot of the bed and above the bench.

· I was unable to determine the point of origin due to the disturbance of items during fire suppression.

· Taking into account the damage sustained to the mattress, it would appear that the fire commenced on top of the mattress towards the foot end.

· This was shown by the damage sustained to the walls above the foot of the bed, above the bench and underside of the light surround.

· Taking into consideration that matches, tobacco and papers were available, the most likely cause of the fire was from a cigarette or a match.

· I was unable to determine if the cause of the fire was a deliberate act of accidental.

In his evidence, the accused said he started that fire with a match.

13. The 30 August was a Wednesday, First Class Correctional Officer Ricky Smith was again on duty. Again he was in the meal room with other officers when notified there was a fire in unit 7. He and other officers ran down the hallway. He saw smoke coming from Cell 2, occupied by this accused. In his statement, exhibit G, he says the following,

11. “Officer Simpson and myself went to the rear of the cell via the vehicle dock and I picked the fire hose up. At this stage the Initial Response Team from the gaol arrived at the front door. Simpson opened the door and I sprayed water from the hose into the cell, which was well alight.”

12. “I saw the IRT officers, I think it was Officer Murrell and Creswell take hold of Toki and take him through the back of the cell. Once they were out of the way, I went further into the cell and extinguished the fire that had completely gutted the whole cell”.

13. “Soon after officers from the fire brigade attended and took over, fully extinguishing the fire. I then attended to other duties”.

14. “I recall that earlier this day, I had assisted in moving Toki from cell 1 to cell 2. Prior to going into cell 2, the ITR searched Toki and myself and some other officers on shift made a search of cell 2 prior to Toki going in. I can't recall exactly which officers. I recall that there were no electrical items in cell 2. Although Toki is a smoker, he did not have access to matches and staff were required to light up his smoke when he wanted one”.

Correctional Services Officer Henry was also working when the fire occurred on 30 August. His evidence was the accused was upset about not being able to have cigarettes. He was not compliant with directions. He was challenging staff, inviting staff to come into his cell and fight him. Although the move to cell number 2 was routine, on this occasion it was done by the Gaol response team. That occurred about 11am. When the alarm sounded, Henry again attended, sprayed the roof of the cell, Toki was secured and removed from the cell. Henry noted in his statement on 30 August, the accused remained in his cell the entire day showing signs of mood swings and irrational behaviour.

14. Nine officers from the fire brigade attended, including Station Officer Law. They received the alarm at 12.18pm. He completed a report on the fire. He is a fire officer. I do not however recall any evidence establishing Mr Law’s expertise in respect of fires. But both sides treated him as one. I am content to regard him as so being, on the basis of his experience in the fire brigade. In respect of Cell 2 fire, he observed, that the form of heat ignition was from,

“Heat smokers material; insufficient”. He noted the form of material ignited first as books, papers, recreational materials, could be decorations.”

As to the type of materials ignited first, he found it be, “wood, paper, insufficient information available to classify”. He noted the fire was confined to part of the room or area of origin. The fire had been extinguished by 12.35. Detective Senior Constable Michael Hando also reviewed the fire scene on 31 August 2006. His observations in respect of this fire are these,

13. Cell 2 contained a single bed, bench, light and shower constructed with concrete and a combined steel hand basin and toilet. There was a double power point and a light switch above the bench. At the rear of the cell was an exercise yard.”

14. “I examined the cell and the exercise yard noting the following;

· There were charred remnants of a blanket on the foot of the bed, on the top of the bench and on the floor below.

· There was what appeared to be drag marks on the top of the bed consistent with a blanket being dragged away from this area during fire suppression.

· The foot of the bed and front edge of the bench had sustained damage.

· The wall above the foot of the bed had sustained damage with the distinct, “V” pattern extending upwards from the bed where the charred remnants of a blanket were situated.

· The power point and light switch were not damaged and there were no electrical items inside the cell.

· There was an unburnt match floating in the toilet bowl.

· Below the water inside the toilet bowl was an empty box of ‘Paradise’ matches.

15. There were strike marks evident on the side of the box;

· In the front of the exercise yard was an amount of personal items, paperwork and books.

· In the back corner of the exercise yard were fire damaged blankets and sheets.”

Detective Hando took further photographs of this fire scene which has now become exhibit C14 to 26. Detective Hando collected the empty box of Paradise matches and the unburnt match for the purposes of their becoming exhibits, if necessary.

Paragraph 16, as a result of my examination, I have concluded the following;

· The area of origin[of the fire] was at the foot of the bed.

· This was shown by the fire damage sustained to the wall above the foot of the bed and the front edge of the bench.

· I was unable to determine the exact cause of the fire due to the disturbance during fire suppression.

· Taking into account the matchbox located in the cell and the available fuel, the most likely cause of the fire resulted from an ignited match.

· I am of the opinion that the cause of the fire was a deliberate act.

15. I should note that photograph 20 shows a match and pieces of fruit in the cell toilet. If that photograph was taken at a time, and I imagine it was, when the matchbox was there, then the matchbox was beneath, it seems to me, the pieces of fruit. First Class Corrective Service Officers Ricky Smith in cross-examination gave evidence that the accused was not allowed matches. He had also made that proposition in his statement. If the accused wanted a cigarette, it had to be lit by an officer. The accused had been strip searched prior to entering the cell that day. Ricky Smith in a throwaway line said, “Inmates have been known to secrete matches and other items”. At best this is a form of tendency evidence in respect of “inmates”. At the beginning of this judgment I made clear, this offender’s apparent past conduct with prison officers would play no part in my view of the evidence. Nor do I intend to speculate when Station Officer Law was not prepared to go beyond the findings he made as to the origin of the fire. That he was not prepared to go beyond in his sworn evidence the findings he made as to the origin of the fire. The accused’s account of this fire is to be found at the transcript of 19 February 2009 at page 2 commencing at line 42,

“I was cleaning up the cell and water got into the fuse and it sparked up. I grabbed all the sheets and blankets, tried to turn it off and I even pushed the emergency button and I ran to the back there and there was two people next door to them. I was calling out to them if they can bang up and get the officers to come down because a fire had started.

Q. Tell me this, as a prisoner at the HRMU, have you been in the past entitled to have things in your cell?
A. Yeah.

Q. Have you been entitled to have electrical appliances in your cell?
A. Not this day.

Q. Now not now, but in the past have you?
A. Not that day.

Q. Not that day?
A. I had nothing.

Q. Nothing that day?
A. No.

Q. Now what happened after the fire started, what did you do?
A. I was trying to turn the fire out.

Q. I'm sorry you were trying to?
A. I was trying to put it out.

Q. And how did you try to put it out?
A. With the sheets and blankets.

Q. What happened to the sheets and blankets?
A. They caught on fire.

HIS HONOUR

Q. Whereabouts did it start?
A. Where the power fuse was.”

The accused told Dr Neilson, the third fire was an accident. His nomination of the fire as the third fire is not to be seen as an inconsistency. It is unlikely the accused knew anything about the structure of an indictment to be filed against him, some year or so later. For him, the fire in cell 2 was in the fact the third fire. As I earlier observed, there is an earlier fire for which he was not charged. Numerous witnesses were cross-examined by Mr Egan for the defence, testing whether there was any forensic signs of any, or some electrical occurrence occurring at the site of the power point above the work bench/desk, shown in photograph C16 of exhibit C.

16. Another area of testing related to the potential for the power point plates to have been changed in breach of crime scene security. As to the first point, the cross-examination had no success. The power point presents as in pristine condition, undamaged by the fire or power burn. As to the second, there is no evidence supporting any interference of breach of crime scene security. Further an inspection of the wall above the work bench/desk where the power point is located is also consistent with no faulty behaviour of the power point or fire originating there.

17. Exhibit C16 shows the seat of the fire appears to have been towards the foot of the bed against the cell wall. In that sense, I am then happy to accept the opinion of Detective Hando. The account given by the accused of his initial steps to fight the fire, appear inconsistent with it travelling to this point from the area of the work bench. I do not accept his account of how the fire began.

18. In respect of this fire though, the Crown’s case is circumstantial only. The Crown relies upon the following;

· Accused alone in the cell.

· Fire scene near the foot of the accused’s bed.

· Material consumed, wood, paper, books, recreational material.

· Fire Officer Law was unable to determine the initial cause of ignition, “form of heat ignition, smokers material, insufficient”.

· Crime scene examiner Hando was unable to determine the exact cause of the fire.

· Match found in toilet bowl. If it was dry, it would have been a live match. Clearly it was not used to start the fire. When asked in cross-examination, the accused said he did not have matches in cell 2 and the match in the toilet was not his. The accused entered the cell at 11am. The fire was ignited somehow or other by 12.18.

· A matchbox found in the toilet bowl empty along with other refuse.

· There is no evidence the toilet bowl was clean at the time the accused entered the cell. Corrective Service Officers Ricky Smith nearly a year later recalls in his statement, “Myself and some other officers on shift made a search of cell 2 prior to Toki going in. I can't recall exactly which officers. I recall there were no electrical items in cell 2.”

· It was also Corrective Service Officers Ricky Smith’s evidence that the accused was searched prior to going in and was not allowed matches. I can only assume he had no matches when he went into the cell.

· There is no evidence of anyone subsequently supplying the accused with matches.

19. Corrective Service Officers Ricky Smith’s account does not touch upon whether the toilet bowl was inspected and if so, by whom, nor does it deal with the state of the toilet bowl at the time Toki was brought in. From the point of view of those searching, there was nothing in the toilet bowl that inhibited placing Toki in the cell so far as security of the gaol was concerned or so far as what Toki was permitted to have. It probably was something that was simply overlooked, even if it had been seen. Indeed, assume for the purposes of analysis, Toki had access to a dry match box and match and was keen to provide fuel for a fire he was hoping to start, it does not seem consistent with such a purpose, that he would have discarded, into the toilet bowl, a matchbox and a match rather than use them as fuel for the first stages of a fire or some form of kindling.

20. I cannot on the evidence before me, draw any inference adverse to him, in respect of the matchbox or the match. In that sense, my opinion differs from that of the expert, Hando. In all the circumstances, I cannot be satisfied beyond a reasonable doubt the accused deliberately lit this fire. While there is no evidence he smoked, or had an officer light a cigarette for him, the fire officers report is not inconsistent with accidental fire from a falling, glowing portion of tobacco.

21. Correctives Service Officer, Larissa Jackson was on duty at the HMRU on 26 September 2007. She heard the “knock up” system activate, that is a system where the prisoner knocks up prison staff usually in a medical emergency. The knock up call came from Cell 12. Martin Toki was housed in this cell. Her statement was tendered in evidence and became exhibit M. In it she says,

4. “I picked up the handset and spoke to the inmate. I said, ‘Unit 7, cell 12, inmate Toki, what is your medical emergency?’ He replied, ‘Miss, my cell is on fire’. I replied, ‘We are on our way’. I informed the other three desk staff officers about what inmate Toki had said.”

5. “All four of us entered the front of cell 12. As we got to the door, I could smell smoke. I opened the outer cell door and saw Toki crouched down in the corner of the inner cell door. At the back of the cell I could see the shower curtain, mattress and sheet in flames. Toki said to me, ‘Miss hurry up and open the door’. Myself and Officer E Dougall directed Toki to put hands through the hatch so he could be handcuffed.

6. Once handcuffing Toki, he bent down and picked up a shopping bag of his personal belongings off the ground. I opened the inner door with Officer Dougall, grabbing him by the handcuffs. We have then escorted him to the phone cage. I have then obtained a fire extinguisher and a fire hood with Officer Klooer and he attended cell 12. Officer Klooer entered the cell with the fire extinguisher and put out the fire. The cell was full of smoke. The emergency action team came in from the back cell door and cleared the cell.”

7. “The immediate area outside the cell was also full of smoke. After inmate Toki was strip searched, myself and Officer Murray Dougall asked him how he lit the fire. He replied, “With matches”. We asked him where he got the matches from but he didn’t reply. After speaking with Toki, I took in the cell and saw that the lining for the mattress had been burnt, the shower curtain, blankets and bed sheets had also been burnt.”

22. The accused is a smoker, it is the accused’s case that on this occasion, matches were given to him by one of the corrective service officers, one with red hair.

23. Senior Correctional Officer Murray Dougall was also on duty from 8am. He is one of the four members of the Immediate Action Team on duty on 26 September 2007. At 9am, he was alerted via radio to the fire in cell 12. He made a statement on 13 November 2007 which was tendered in evidence and became exhibit H. In that statement he says,

6. “I saw several officers carrying fire hoses and I saw a lot of smoke coming from the rear of cell 12. The rear door of cell 12 was open by Val Garzotto and when the door was opened, I sprayed one burst of CS gas which is a tear gas as a precautionary measure as inmate Toki is a known violent offender. Officer Lewis and myself then entered the cell. As we moved in I heard someone yell, ‘Toki is out of the cell’. Officer Lewis and I then exited the cell through front door into unit 7. I was security manager with Mick Reed, extinguished the fire with his hose.(sic).”

7. “I saw Toki had been placed in the phone holding cell which is at the front of the office to unit 7. I noticed that he was holding a plastic bag that had some of his legal papers, as he told me they were his legal papers. I noticed that Toki was struggling for breath and myself and Officer Lewis then went to the sports yard to get some fresh air. About three or four minutes later, I noticed that Toki appeared to have recovered and we then escorted him to the unit 7 observation cell.”

24. Station Officer Law also attended this fire, the fire brigade received a call at 8.56am from the direct alarm. Eight members of the fire brigade arrived at 9.02. Station Officer Law puts the initial form of ignition as, “cigarette” and the initial material first ignited is paper, including magazine, newspaper, writing paper. Station Officer Law noted in his report, “small fire in cell, extinguished prior to arrival by staff, caused by inmate with a cigarette who set fire to some papers which spread to his mattress”. Exhibit E comprises ten photographs, apparently taken of cell 12 shortly after the fire. They show fire damage to the walls of the cell, to a mattress and other items. Station Officer Law estimated the damage at $200. The accused in his evidence indicated he started two of the fires with matches. It is clear from his evidence that one of the fires he was referring to was the fire in cell 12.

25. There is no contest the fire in Cell 7, (8 July 2007) and the fire in Cell 12, (29 September 2009) were deliberately lit by the accused. There is no contest structures, fixtures and contents of each cell were damaged to some extent by means of the fire. While Station Officers Law’s expertise was not established, he estimated the extent of the damage in the Cell 12 fire was $200. Fire Captain Stathis estimated the dollar loss arising out of the Cell 7 fire at $100. From the photographs I have seen, evidence of these estimates would appear conservative. Nonetheless damage by means of fire of cell structures and contents has been proved. The location of these two fires, Cell 7 and Cell 12 as part of unit 7 of the HRMU at the Goulburn Correctional Centre have been proved to the criminal standard.

26. The defence of mental illness comes into play only once I have been satisfied beyond reasonable doubt the Crown has proved the essential element of each of the relevant charges. The defence seek, what is called, a special verdict. A special verdict when pronounced is one of “not guilty by reason of mental illness”.

27. This is a defence, the accused must prove. The standard of proof required for this defence is the balance of probabilities. That is, it is more probable than not.

28. Before I embark upon the legal concepts of the mental illness defence, I intend to explain to the consequence of a finding, that the accused is not guilty by reason of mental illness. A verdict of not guilty by reason of mental illness would mean that because of the verdict, there is no consequence to the accused arising from the charge other than that he would be oversighted by the Mental Health Review Tribunal. A verdict of not guilty on the grounds of mental illness would normally mean that I would order that he be detained in strict custody in such place and in such manner as to me seems fit until released by due process of law. Due process of law includes not only his continued detention until release but that he would come under the supervision of the Mental Health Review Tribunal. The registrar of this court would notify the Minister for Health and the Mental Health Review Tribunal of every post verdict order made by the trial judge.

29. The Mental Health Review Tribunal consists of a president or his deputy who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task of oversighting a forensic patient’s progress. The functions of the Tribunal are to review the accused’s case as soon as practical after an order is made for his detention in strict custody and they are to make a recommendation to the Minister for Health as to the accused’s continued detention, care and treatment. Only if satisfied of the safety of the accused, or that any member of the public would not be seriously endangered by the accused’s release may a recommendation for release be made.

30. In this accused’s case that could only occur after he had finished his non parole period. If there is such a recommendation then the Minister for Health must notify the Attorney General and at the same time furnish a copy of his notification to the Director of Public Prosecutions. If the Attorney General makes no objection to a recommendation for release within thirty days after being so notified by the Minister for Health then and only then may an order be made for the accused’s release provided that the Minister for Police and emergency services are informed of any date of such release. When release is not recommended the Tribunal’s order continued detention, care and treatment in a place and manner specified by the Tribunal. That is a review as much as I need to do of the functions and potential outcomes available to the Mental Health Review Tribunal.

31. I turn now to what is meant by defence of mental illness. The starting point is to pinpoint the time at which the mental illness defence must operate, before it can provide a defence to damage by fire. The relevant time to be considered is the time when the Crown alleges each fire was lit. Whether the accused had mental health problems before or after that time is not necessarily crucial to the application of the defence other than to assist in determining what his mental state was at the particular time of each incident. The defence must establish that as a result of a defect of reason from a disease of the mind, the accused did not appreciate the nature and quality of his physical act of damaging the government’s property by means of fire or that he did not know that setting such a fire was wrong.

32. The starting point is to determine whether the accused, at the time of each incident was labouring under any defect of reason brought about by disease of the mind. The defect of reason can extend to a defect of memory or understanding.

33. The characteristic is a disorder of a capacity to reason such as one that prevented the accused from knowing that what he was doing was wrong according to the ordinary standards of reasonable people in our community. The defect of reason may relate to his capacity to reason with a moderate degree of sense and composure. That approach is recognised by the law as being relevant to the issue of whether the accused was able to discern whether his act was right or wrong.

34. As to whether the accused did not know the act to be wrong, a question for consideration will be whether through a disordered condition of his mind, the accused could not reason about his situation of dealing with his incarceration in Cell 7 and Cell 12 with a moderate degree of sense and composure. It is then open to find he did not know that what he was doing was wrong.

35. It may be obvious from remarks earlier made rejecting the accused’s account of the fire in Cell 2, that I do not regard him as a reliable historian as to time or as to events. Nor in the circumstances of the accused incarcerations history should such a finding be surprising. The accused has been incarcerated at HMRU(as said) for nine years this year. In evidence he said he had been in segregation for four years all up. On the other hand he told Dr Neilson in January of 2008, “I have been isolated for seven years...in segregation for six years...including four years straight”.

36. Corrective service officers who were asked, could not give specific detail of his time in segregation other than to say, he had been in segregation for a long time. Corrective Service Officer Jackson said he had been on segregation for the majority of his time at HRMU. The account given by Dr Neilson possesses greater detail than the accused’s evidence.

37. I am prepared to accept as more reliable the account given to Dr Neilson. I have estimated that he was accepted into HRMU in about 2001. His evidence is that in July of 2006, he had been in segregation for about two years. That is likely to have been a conservative estimate but he may have meant two years straight. His evidence records a suicide attempt after the Cell 2 fire. He said at transcript 19, 209, page 6, lines 44 to 50,

“Two fires and I tried to hang myself in the yard. When I was in the cell I didn’t handle it. When they took me in for a shower, the back door was open. I ripped the towel and tried to hang myself three times and I dropped. They’ve got this on video and took me down to D ward after that.”

In July of 2006 he was on psychotic (as said) medication. He was having problems. He thought he was having side effects from his medication and then he stopped taking his medication. He told Officer Henry trying to explain what the medication was doing to him. The accused’s sense was that no one in authority would listen. He had difficulty obtaining access to his doctors/psychiatrists. He had approached the ombudsman prior to the fires in Cell 7, Cell 2 and Cell 12. He had complained about having access to his medical practitioners. He could not understand why he had been placed at HRMU. He was on segregation. He was not allowed a toaster, sandwich maker. He did not have a TV and radio. This had been taken from his cell prior to the Cell 7 fire for not complying with medication. (One wonders whether the psychiatrists and other medical practitioners would have approved such a practice). That made him confused, why they took his items, why they were trying to force him to take medication that he believed resulted in side effects for him and in circumstances where the nurse told him not to take it because of the side effects.

38. By the time of the fire in Cell 12, he was deprived of matches. He agreed with the Crown in cross-examination that he was also deprived of tobacco and cigarette paper.

39. There is other evidence suggesting he was allowed to smoke but had to approach the corrective service officers for a light. He also gave evidence of experiencing withdrawals from tobacco. So it may be that he was deprived of his White Ox and Tallyho, although I note that in one of the fires, that was to be found in the box that came from the cell.

40. The accused’s evidence is that in the Cell 7 fire he intended to take his own life because he couldn’t handle what was going on with himself. In the Cell 12 fire, Corrective Service Officer Jackson upset him and he told her was going to light the fire.

41. It would appear Dr Neilson also found the accused lacking in precision and detail as a historian. He noted that Toki was unable to tell him roughly when the three fires occurred but did say they were too close together and one shortly before his transfer from Goulburn to the prison hospital(Long Bay Hospital). The offender’s account of the first fire was he wanted urgent medical help because he was, “pissing blood...shitting blood and coughing blood...I’d had enough”. Whether this is the side effect of the medication he complained of or another unrelated complaint is unclear. Dr Neilson took a history of the accused believing his food was being poisoned.

42. Dr Neilson also opined that the accused being in strict confinement would have been distressed when experiencing a manic state, when his thoughts were racing, when his energy level was high. It was Dr Neilson’s observation from the medical records that Mr Toki is calm and reasonable in his manner after periods of consistent treatment. The doctor was of opinion that it was likely that much of the disturbed behaviour that had resulted in Toki spending years in segregation was due to untreated medical illness and the circumstances of his detention.

43. Dr Neilson’s evidence is that the accused had been discharged from a prior admission at the prison hospital, he thought in December 2005, on a moderate dose of antipsychotic medication which the accused only took intermittently. In these circumstances, the accused probably relapsed. The doctor has assumed at the time of the Cell 7 fire and the Cell 2 fire, the accused was experiencing a relapse of the schizo-effective disorder and probably acutely mentally ill during the whole three months that these two fires occurred.

44. My understanding is that the three month period relates to the Cell 7 and Cell 2 fire period. Dr Neilson expressed himself as confident the accused was acutely mentally ill when transferred to the prison hospital and acutely mentally ill when assessed by Dr O’Dea the week before the third fire, that is the Cell 12 fire. Dr O’Dea found Toki guarded, loud, abusive and threatening, not adequately treated. Dr Neilson, who saw one portion of exhibit F showing the accused shortly after the fire being examined by a nurse and being spoken to by prison officers, noticed two things;

1. The accused was, “hugely fit”. He apparently had been training intensively.

2. The other was a fatuous smile on his face consistent with an abnormally elevated mood.

45. For my part I also noticed the smile in the playing of exhibit F and the fact that the accused only spoke when spoken to. Otherwise he seemed to keep his thoughts and feelings to himself. Of course at that time, the accused was handcuffed and the cuffs were linked to a harness around his waist. The accused told Dr Neilson, “I've been isolated for so long...segregated, tormented...discriminated against for speaking out”. The accused complained about his food being “tampered with..they’ve put some drug in the food and it wakes me up”.

46. Of his general history, the accused sustained a serious head injury as a child requiring hospital admission. He was unsure whether he was a slow learner but referred to special classes to learn to read and write. The accused had been on medication whilst on remand and taken some form of medication for most of his current sentence. He was on a range of antipsychotic medicines including Olanzapine, Quetiapine and Amisulpride but stopped taking these for various reasons including experiencing breast enlargement. When he does not take his medication, his mood becomes elevated. Toki described it as,

“I get so high...I could speak clearly...I think clearly...talk about politics and religion...my mind was racing...I knew exactly what I was saying...I could just click onto what they were going to say...I couldn’t sleep that well but I had plenty of energy to train all day.”

47. Dr Neilson acknowledged he was unable to illicit a clear account of Toki’s state of mind around any of the fires or whether his mood was elevated at the time of the Cell 12 fire. The doctor was unable to establish whether he lit the fire in response to certain thoughts or certain beliefs. There was an admission to ward D in October of 2006, discharged January 2007, in respect of a manic episode. The October 2006 admission could be four to eight weeks after the Cell 2 fire. On 21 October 2007, Toki complained of sleeplessness. He was talking freely and his mood described as good. On 13 November 2007 he gave a history of only sleeping one hour per night. On 21 November 2007, he had persecutory ideas, was volatile, sudden changes in mood and alleged he had been sexually assaulted by an officer.

48. It is unclear whether this complaint is a complaint of a historical assault in an earlier time at HRMU or a complaint of a recent sexual assault at HRMU. On the same date as the complaint was made, the accused gave a history of being very anxious in the yard and to have punched and head butted the walls in his cell. Shortly after this he was transferred to Long Bay Prison Hospital in December of 2007.

49. The psychiatric diagnosis made by Dr Neilson was one of relapsing psychotic illness. Dr Neilson was unable to catalogue it as either bipolar disorder (manic depressive illness) or a schizo-effective disorder, that having features of both schizophrenia and mood disorder. Dr Neilson found the relapsing mental illness had been present since 1999. Dr Neilson was of opinion that if the accused received adequate and consistent treatment, he may have been detained in less restrictive circumstances.

50. Doing the best I can to piece together the accused’s psychological profile on 8 July 2006, the following observations can be made;

· A relapsing psychotic illness of either a bipolar disorder type or a schizo-effective disorder ongoing since 1999.

· A period approaching two years in segregation without programmes, and/or the stimulation of interacting with anyone other than prison staff in an extreme punishment environment.

· Six months or so of partial to non compliance with prescribed medication and a growing impact of that upon his mental wellbeing.

· Limited access to qualified psychiatric practitioners.

· Feelings of confusion, isolation, torment, victimisation, resentment at punishment for non medication compliance.

· Paranoid ideation in relation to purity of food he was consuming, blaming it for deprivation.

· Concern about bleeding through urine, bowel movement and coughing.

· Probable [self] misdiagnosis of sleep deprivation (manic, energetic mood) and bleeding episodes (possible excessive exercise related causing internal tearing).

· Experiencing the manic phase of bipolar or mood swings.

· Serious depression focused upon suicide through fire.

· Probable sleep deprivation through high energy level of manic mood.

I am certainly satisfied on the balance of probabilities that the accused suffered a psychiatric condition on 8 July 2007, whether that psychiatric condition was bipolar disorder or a schizo-effective disorder. On either view it constituted a disease of the mind. I am satisfied as at 8 July 2007 that the accused’s psychotic condition was untreated with medication and had been untreated for some days if not a longer period of time. Those days had followed a period of spasmodic and intermittent compliance with medication.

51. I am satisfied as a consequence of the accused’s non-compliance with medication, his mental health was deteriorating to a point where his capacity to reason sensibly, calmly and with composure was becoming seriously compromised.

52. I am satisfied the punitive approach taken by custodial authorities of depriving him of privileges, avenues of stimulation, pleasure, exacerbated the forces of his mental deterioration. Likewise the custodial authorities actions in increasing tension by such deprivation of privileges also exacerbated the forces of his mental deterioration. I accept Dr Neilson’s opinion, it is more probable than not, he did not know what he was doing was morally wrong.

53. I am satisfied the accused well knew he was lighting a fire with a match. I am also satisfied at the time he did that his capacity to reason with some moderate degree of calmness in relation to the moral quality of what he was doing was so seriously impaired by his psychiatric condition that he did not know that was he was doing was wrong. In respect of the Cell 7 fire on 27 July 2007, I find the defence of mental illness has been proved. In a moment a special verdict is provided by s 38 of the Mental Health (Criminal Procedure) Act shall be announced.

Cell 12 fire, 26 September 2009

54. Doing the best I can to assess the accused’s psychotic condition on 26 September 2009, the following observations can be made;

· The accused was suffering from a relapsing psychotic illness of either a bipolar disorder type or a schizo-effective disorder ongoing since 1999.

· At the time of his return from Ward D to the HRMU he continued an interrupted period of segregation.

· His period in Ward D appears to have commenced in October 2006 for several months.

· A period of partial non-compliance with medication followed his return and a growing impact of that upon his mental well-being.

· Limited access to qualified psychiatrists, practitioners.

· Feelings of confusion, isolation, torment, victimisation and resentment at punishment for non compliance with his medication regime.

· The effect of sleeplessness.

· A florid presentation on 18 September 2007, loud, angry and abusively threatening. That is some eight days prior to this fire.

· Experiencing the manic phrase of a bipolar disorder or the schizo-effective mood swings.

· On 26 September 2007 anger, resentment, feelings of victimisation at the treatment by custodial staff and remarks by the accused to senior officer on duty Corrective Service Officer Jackson reflect his mood and intent.

55. I accept Dr Nielsen’s opinion that the accused has a mental illness defence to this charge.

56. I am satisfied on 26 September 2007 the accused suffered a psychiatric condition caused by disease of the mind. I am satisfied that on 26 September 2007 that disease of the mind was untreated with medication and had been untreated for some days.

57. Before those days began there was a period of spasmodic and intermittent compliance with medication during which time his condition had deteriorated.

58. I am satisfied as a consequence of the accused’s non compliance with medication his mental health was deteriorating to a point where his capacity to reason sensibly, calmly and with a moderate degree of composure was being seriously compromised.

59. I am satisfied the punitive approach of deprivation being taken by custodial authorities exacerbated the forces of his mental deterioration. Likewise the custodial authorities’ actions in increasing the tensions by punishing for non medication compliance in circumstances where he had informed the nurse and she had told him not to take his medication exacerbated the forces of his mental deterioration.

60. I am satisfied the accused intended to and well knew he was lighting a fire with a match. I am also satisfied at the time he did so his capacity to reason with a moderate degree of calmness in relation to the moral quality of his actions was so seriously impaired by reason of his psychotic condition that he did not know what he was doing was wrong.

61. In respect of the Cell 12 fire on 2 September 2007 I find the defence of mental illness has been proved.

HIS HONOUR: Mr Toki, in effect what I have done in the last hour and a half is to give reasons for the three verdicts that I am now about to give. I do not know if you have understood what I have said but just listen carefully to the verdicts that I now read.

62. Martin Toki, on the charge that you on 8 July 2007 at Goulburn did maliciously damage by means of fire, the structure, fixtures and contents of Cell 7 in unit 7 of the High Risk Management Unit of the Goulburn Correctional Centre I find you not guilty on the grounds of mental illness.

63. In respect of the second fire on this indictment, that you on 30 August at Goulburn maliciously damaged by means of fire, the structure, fixtures and contents of Cell 2 in unit 7 of the High risk Management Unit of Goulburn Correctional Centre I find you not guilty of the offence.

64. In respect of the third fire on this indictment that you on 26 September 2007 at Goulburn in the State of New South Wales did maliciously damage by means of fire the structures, fixtures and contents of Cell 12 in unit 7 of the High Risk Management Unit at Goulburn Correctional Centre I find you not guilty by reason of mental illness.

65. In respect of the first and third charges, I order you to be kept in strict custody according to law and I will refer your matters, that is those two matters, to the Mental Health Review Tribunal.

Discusssion about the effect of orders made by trial judge upon the present custodial situation of prisoner.

HIS HONOUR: And I am happy to make the order although it may not have much effect because it may be countermanded by administrative mechanisms. I am happy to make the order for this reason and this can go on the record. But I am concerned that decisions are being made in respect of the accused that I think are counter intuitive in situations where he is not taking his medications. Quite possibly those decisions are being made by Corrective Services staff without seeking advice of mental health experts and as I say are counter intuitive to, firstly getting him back on his medication and secondly exacerbating any mental health condition that he has.

66. I note that better than twenty five per cent of people in custody have serious mental health problems and my view is that there ought to be some closer nexus between their detention even when they are not scheduled and proper appropriate mental health treatment.

67. In this case I have found that an aggravating feature of Mr Toki’s condition which led to him lighting the fires, that is to the deterioration of condition which in turn led to his lighting fires, was the punitive approach. One can understand it from the point of view of Corrective Services, but I do not think that one can understand it from the point of view of treatment of mental health issues.

68. And for that reason I would like to see him placed in a mental health hospital and I am content to order it.