R v Trucano
[2010] VSC 271
•17 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0020 of 2010
| THE QUEEN | |
| v | |
| DENYS MARTEL TRUCANO | Accused |
---
JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2010 | |
DATE OF JUDGEMENT: | 17 June 2010 | |
CASE MAY BE CITED AS: | R v Trucano | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 271 | |
---
CRIMINAL LAW – Murder – Proceeding under Section 21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Not Guilty by reason of mental impairment – Psychotic with symptoms of schizophrenia at time of offending – Custodial Supervision Order imposed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Gibson | Office of Public Prosecutions |
| For the Accused | Mr P. McClure | Doogue & O’Brien |
HIS HONOUR:
On 7 April 2010, Denys Martel Trucano pleaded not guilty to the murder of his father, John Trucano. The matter proceeded before me as a hearing pursuant to s 21(2)B of the Crimes (Mental Impairment and Unfitness to be Tried) Act (the Act). The provision allows the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred.
The pre-requisite to the judge’s role in hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment (see s 21(4) of the Act). Mental impairment is defined in s 21 of the Act in these terms. Section 20 Defence of Mental Impairment, sub-s (1):
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 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.
Sub-section (2) of s 20 provides:
If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
As it is the second limb of the definition of “mental impairment” that the Court is concerned with in this case, if the trial judge is 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 by reason of mental impairment may be recorded; if the trial judge is not so satisfied, an order that the charge be heard by a jury must be made.
The facts surrounding the incident are contained in the depositions which were tendered on the trial as Exhibit 1. The facts may be briefly stated. They are in précis form set out in the summary of prosecution opening read by Mr Gibson of counsel who appeared for the prosecution.
The accused is 31 years of age. He was born on 25 August 1978. At the time of these events, he was living with his mother and sister in Box Hill North. The accused is the youngest of three children. The accused’s parents separated in 1980 and the deceased remained living in the matrimonial home up until his death. The deceased was violent to other family members including the accused, particularly in his teenage years.
Between 1997 and 1999, the accused was diagnosed as suffering from chronic paranoid schizophrenia. He has been regularly hospitalised. He has been a patient at Upton House and the Koonung Clinic. He was a patient at the clinic in September 2009.
From Saturday 29 August until Friday 4 September, the accused was showing signs of disturbed behaviour. His mother, Maria Trucano, became quite concerned about his mental health. He had left home on Saturday 29 August without warning. He did not take his medication or house keys with him. He did not contact his mother until Wednesday when he rang and asked to be collected from his father’s house. His absence from home had been reported to the police.
When he was taken home by his mother, he did take his medication but appeared to his mother to be experiencing a psychotic episode. At some time during Thursday, the accused again left home without his keys, wallet or phone, only to ring at 2.00am asking to be collected from his father’s house. When he returned home a short time later, he was not wearing any shoes or shirt. He appeared, to his mother, to be in a weird state. The accused had a poor recollection of the events over the previous week.
Arrangements were made for the accused to attend his doctor at Koonung Clinic at about 9.15am on Friday. On Friday morning, 4 September, he left home with his mother who was to drive him to the clinic, but on the way the accused, who appeared to be upset and angry, changed his mind and asked to be taken to his father’s house in East Doncaster. His mother was afraid that the accused might jump out of the car and disappear again, so she took him to his father’s house. She dropped him off there at about 9.40am. He rang and asked to be collected at about 9.50am. He was collected by his mother about 10.00am and told her that he had killed his father.
In the intervening time when outside the garage, he had stabbed his father in the throat, chest, heart and stomach and cut off his father’s left ear. He took the body into the pool room adjacent to the garage. He cut his own thumb during the attack. The accused washed his hands and used the garden hose to clean up the driveway. When the police arrived at the home at 10.30am, the deceased was found in the pool room. The accused’s pocket knife was lodged in his chest.
When the accused was interviewed at about 3.26pm, he admitted what he had done and the following passages from the record of interview probably best set out the tenor of the interview, commencing at Question 124:
Yep, and then what did you do then?---I don't know, I asked, I can’t recall, but I asked Mum to drive me to Dad’s.
Why was that?---Because I was going to kill him.
When did you make that decision?---This morning.
Were you at Mum’s place when you made that decision?---Yes.
Why did you make that decision?---It’s hard to say but I sort of heard a voice in my head and it said, 'Kill your father, your dad. You should kill your dad' or something like that. And then I heard my mother just say, 'Thank you.'
Now these voices you heard them inside your head?---Yes.
So your mother didn’t actually say to you, 'Thank you', you only heard her say 'Thank you' inside your head; is that right?---No she actually said, 'Thank you.'
What are you saying, that you told your mother what you were going to do?---No.
Well what did she say 'Thank you’ to?---I don’t know.
All right, OK, so it’s not a situation where you told Mum, 'I’m going to kill, I’m going to go and kill Dad' and she said, 'Thank you'?---That's right.
All you can recall is her saying, 'Thank you' but you don't know what to?
---No.Why did you think this thought came into your head?---I don't know.
And so what did you do after this thought came into your head?---I asked Mum to drive me to Dad’s.
Yeah?---And she did.
Did you think how you were going to kill your father?---Yes.
How?---Well I saw a pocket knife and I grabbed that and decided I would use that.
Where did you see this pocket knife?---It was on the counter at Mum’s.
Who does it belong to?---Me.
Where did you get the pocket knife from?---At - from my Dad gave it to me.
When was that?---When I was about six or seven.
And you’ve always kept it since then you have?---Yeah.
And where, where was it, on the bench did you say?---Yeah.
What was it doing there?---Nothing.
Who put it there?---I think I did.
When did you put it there?---A few days ago.
So you’ve grabbed that knife before you go into the car?---Yes.
To go?---Yeah.
Where did you put the knife?---In my, in my pocket.
Yeah OK, what were you wearing?---A tracksuit.
Yeah?---A tracksuit and a singlet T-shirt.
What colour T-shirt?---Blue.
All right, what about on your feet?---Runners.
What type of runners?---Dunlop black runners.
So did Mum drive you to Dad’s?---Yes.
What had you told your mum you wanted to do?---I just told her that I wanted to see him.
All right, and, and, in - if she would drive you there, is that?---Yes.
Yeah, she agreed to do this?---Yes.
What did you think about in the car on the way there?---Nothing. She was a bit upset and said I needed to go to the doctor.
Why do you think she said that?---Well I’m not sure, no.
What did you say to her when she said this to you?---I said, 'No everything will be fine.'
And so you, you didn’t want to see a doctor?---No.
Was there any reason for that?---Well yes.
What's that?---Well they, well they always put me on medication.
All right, yeah and you don’t like that?---No.
Why is that?---I don't know.
All right, so do you know what time you left to go to Dad’s place?---Well somewhere round nine o’clock.
Did you drive straight there?---Well my mum drove me straight there, yeah.
What type of car does Mum drive?---A Toyota Corolla.
And what happened when you got to your Dad’s place?---Mum left in her car, yeah.
And what did you do?---I walked up the driveway and stabbed my dad.
All right, what was your state of mind when you actually - when you got out of the car?---I don’t know, I was just determined to do it.
Did you go to the front door?---No.
OK where was Dad when you got there?---He was at - in the garage.
And where’s the garage? I haven’t had the benefit of actually going around to the address?---It’s, it’s at the top of the driveway.
All right, so you have to walk up a driveway?---Yeah.
Which leads to a garage?---Yeah.
And dad was in the garage?---Yeah.
And did he see you arrive?---Yes.
And what did he do?---Nothing.
Well did he walk down towards where you were or did you walk up towards him or?---He went - he - he went - he went to go and - got something from the letterbox, yeah, and then walked back up there, that’s when I stabbed him.
And so Mum’s dropped you off outside the address?---Yes.
Dad’s in the garage?---Yes.
Then he walked down the driveway to the letter box?---Yes.
Towards where you were?---Yes.
Did he get any mail out of the letter box?---I'm not sure.
Was he standing at the letter box?---No, he walked back up the driveway.
And so he’s walking back up the driveway after - well, did he collect anything from the letter box?---Umm, I’m not sure.
All right. Did he - was he facing you or did he had his back to you?---He was facing me.
As he was walking up the driveway?---Yes.
So he’s walking backwards up the driveway, was he?” There is no audible reply.
“Or were you ahead of him?---I was at this stage ‘cause I walked up the driveway.
Right, OK, yeah. And then he walked down?---Yeah.
And then he walked back up?---Yes.
After going to the letter box?---Yes.
And so you were at the top of the driveway?---Yes.
He’s walked down to the letter box?---Yes.
Then walked back up towards you?---Yes.
And so he’s walking towards you and then what happened?---I had my knife ready, I stabbed him in the throat.
So at that stage did you take the knife from your pocket?---When he was walking down the driveway to get something from the letterbox.
All right. When you took the knife out what did you do with it?---Opened it up to get ready and held it in my hand in my pocket.
OK. When he walked towards you, what did you do then?---When he didn’t walk towards me I approached him and, right, and I stabbed him.
So you walked across towards him and he’s walking up the driveway, is that right?---Yeah, well once he was up the driveway.
All right, at the top of the driveway?---Yeah.
Near the garage?---Yeah.
Then you walked towards him?---Yeah.
And you stabbed him?---Yeah.
Where did you stab him?---In the throat, in the chest, in the heart and in the stomach.
The question which then arises is what was the accused’s mental state at the time he killed his father? The material was put briefly but adequately set out in the prosecutor’s opening and I repeat it here.
14. ACCUSED'S MENTAL STATE:
A. Dr Ali Asacour, forensic medical officer who attended upon the accused at 13.30 hours on 4 September 2009 at the Box Hill Police Station for the purpose of assessing his fitness to be interviewed by police,. The accused did not speak. No reason was given. As a result no assessment as to his fitness could be made at this stage. An independent third person was recommended.
B. Dr Remy Glowinski, consultant psychiatrist at the Koonong Community Mental Health Centre prepared a report dated 27 November 2009 at the request of the Homicide Squad. (See page 54 depositions.) He deposes to the history of the accused's mental/psychiatric history. In particular he refers to the following matters:
i)receiving significant psychiatric treatment since 1997;
ii)previously being diagnosed as suffering schizophrenia, depressive episodes and alcohol abuse;
iii)9 psychiatric admissions to Upton House between 1998 and December 2007, all as an involuntary patient;
iv)11 separate episodes of active case management between the aforesaid hospitalisations commencing in October 1997;
v)lengthy periods as an involuntary patient under a Community Treatment Order pursuant to the Mental Health Act;
vi)History of overdoses and threats of suicide within the context of "acute psychosis" and hospital admissions had followed;
vii)History of threatening harm to both parents, the last threat having occurred in 2002, there had been no reported episode since that time;
viii)Voluntary patient at the Koonong Clinic since December 2008;
ix)Medications prescribed: Risperidone, Fluoxetine and Diazepam;
x)History of non-compliance with prescribed medication as evidenced from the number of past involuntary treatment orders;
xi)History of alcohol abuse;
xii)The accused last attended the Koonung Clinic on 12 August 2009, 3 weeks prior to the offence. The accused had up to that point been attending regularly and “presented as being in remission with regards to the positive psychotic symptoms of his schizophrenic illness.” Due to his on-going depressive symptoms, an increase of Fluoxetine dosage from 20 milligrams to 40 milligrams was recommended on 12 August with review by a clinic doctor a month later;
xiii)The Koonung Clinic notes confirm the concerns expressed by the accused's mother. (noted in paragraph 10 of this Opening.)
C. Dr Danny Sullivan, Consultant Forensic Psychiatrist interviewed the accused on 19 December 2009 at Thomas Embling Hospital. He had unsuccessfully attempted to confer with the accused a week later but - a week earlier. Dr Sullivan reported the following:
i)Current (as at 19th December) medication included: Olanzapine (antipsychotic sedative); Lorazepam;
ii)he denied any unusual beliefs or auditory hallucinations or other symptoms. This was in contrast to later indicating a range of psychotic symptoms;
iii)Thomas Embling medical records indicate that on receipt into custody, the accused reported he had experienced auditory hallucinations to kill his father which were "too strong to resist". That by killing his father he was bringing “peace to the world”. He gave an account that he was involved in a war against machines and that his father was trapped in the body of a machine, that by killing him he was releasing him from the machine, that his father had thanked him following his death, he spoke of being controlled by external forces;
iv)the accused spoke of not having taken medication for the week before the offence and indicated that he had only taken medication erratically for the months prior to the offence;
v)the accused was certified under the Mental Health Act 1986 on 15 September 2009 and transferred to Thomas Embling on 17 September 2009;
vi)28 September 2009, the accused was exposing himself to others because God had told him to do it;
vii)11 October 2009, the accused believed he was a five star general. That he was under the control of Satan and that he had saved his father from Satan by killing him. He reported intermittent past thoughts of killing people;
viii)15 December 2009, he stated that he had previously falsely claimed to have experienced auditory hallucinations.
Dr Sullivan’s Opinion.
i)Likely diagnosis is of “paranoid schizophrenia, manifesting bizarre persecutory and grandiose delusions, auditory hallucinations and psycho-social deterioration.”
ii)Provisional diagnosis is of poly-substance abuse.
iii)He does not did not appear cognitively impaired but seems to be functioning in the low average range of intellect.
iv)As to the criteria set out in s.20 of the Crimes (Mental Impairment and Fitness to be Tried) Act, Dr Sullivan opined that the accused was not unaware of the nature and quality of the conduct. However he further opined that “on balance” a mental impairment defence was available based on (a) the bizarre and persecutory delusions the accused had expressed about his father soon after the killing; (b) the accused being incongruous in express mood; and (c) persisted in expressing psychotic beliefs and behaving in a disordered fashion.
D. Dr Maria Andrzjeweski. Consultant Psychiatrist, Forensicare
Opinion: “I believe Mr Trucano was psychotic with symptoms of his schizophrenia at the time of the alleged offence and due to these symptoms he was not able to understand that his actions on this day were wrong.”…”In light of this, I believe it would be appropriate for a mental health defence to be made available to Mr Trucano”.
I had received on the trial reports from Dr Glowinski, Dr Danny Sullivan and Dr Maria Andrzjeweski. Dr Andrzjeweski gave evidence before me and confirmed what was in her report.
The accused also had, as emerges generally from the material, a significant history of poly-substance abuse and probable addiction, although those matters do not appear to have any direct relevance to the matter now before the Court. It should also be noted that the accused had a significant history of non-compliance with taking his medication.
On the evidence before me, I am satisfied that the defence of mental impairment has been made out and direct that a verdict of not guilty because of mental impairment be recorded. That finding is pursuant to s 21 sub-paragraph 4(a) of the Act. The ground of mental impairment is that pursuant to s 20, sub-s 1, sup-paragraph (b) of the Act, that Denys Trucano at the time he killed John Trucano did not know that the conduct was wrong. That is, he could not reason with a moderate degree of sense or composure about whether the conduct as perceived by reasonable people was wrong.
I therefore declare that, pursuant to s 23(a) of the Act, the defendant is liable to supervision under Part 5 of the Act.
I have received a certificate pursuant to s 47 of the Act and a report pursuant to s 41 of the Act from Dr Maria Andrzjeweski as to your diagnosis and treatment plan. I have noted the contents of that report which will be placed on the Court file.
Pursuant to s 26(1), I make a supervision order in relation to you. I make a Custodial Supervision Order committing you to the custody of the Victorian Institute of Forensic Mental Health.
The nominal term of the Custodial Supervision Order will be 25 years.
0
0
0