R v Walicki

[2008] NSWSC 777

CITATION:	R v WALICKI [2008] NSWSC 777
HEARING DATE(S):	28 July 2008
JUDGMENT DATE :	30 July 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
DECISION:	Not guilty by reason of mental illness
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Trial without jury - Murder and wound with intent to murder - Mental illness of accused - Special verdicts
LEGISLATION CITED:	Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990
CATEGORY:	Principal judgment
PARTIES:	REGINA - Crown Linda Jane WALICKI - Accused
FILE NUMBER(S):	SC 2008/00002546
COUNSEL:	J Kiely SC - Crown J Stratton SC - Accused
SOLICITORS:	Solicitor for Public Prosecutions - Crown Legal Aid Commission - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

Wednesday 30 July 2008

2008/00002546 REGINA v Linda Jane WALICKI

JUDGMENT

1 HIS HONOUR: Linda Jane Walicki (the accused) has been indicted upon three counts charging, respectively, the murder of Michael Walicki (her father), the murder of Kathryn Walicki (one of her sisters) and wounding with intent to murder Susan Walicki (her mother). Upon her election and with the consent of the prosecutor, the trial has been heard without a jury. To each count she has pleaded not guilty. The entirety of the evidence has been received by the consent tender of documents. The Crown is represented by a Deputy Senior Crown Prosecutor and the accused is represented by Senior Counsel. There is no contest between the parties and it is the submission of both counsel that the appropriate verdict on all counts should be not guilty by reason of mental illness. As will appear and for the reasons following, I accept that submission.

2 The evidence includes an agreed statement of facts which is extracted from the statements and reports which accompany it. Whilst there are some differences in the recollection of detail and the recounting of observations by various witnesses, the differences are insignificant. I accept the expression of facts and the content of documentation. Nothing will be gained by recitation of all this material and it will suffice to summarize my findings concerning the basic facts and circumstances of the offences and the mental state of the accused at the relevant time.

3 The accused is the third born child of the six children of her parents. As at 5 July 2007 she resided in premises which had been the family home for some 25 years. It was a substantial two storey brick residence. Over a long period before that date the accused had manifested signs of perceptible mental disturbance and her parents had sought treatment for her. I shall return to relate some of this history but it is convenient to focus on the charges by noting events commencing from the evening of 4 July.

4 In the early part of that evening the accused was having what family members described as panic attacks and was turning “towards aggression”. She appeared unwilling to eat and her mother fed her. She oscillated between requesting to be taken to hospital and then proclaiming that she was not sick. At about 8 pm she left the house and her father, sister Kathryn and brother Peter followed and accompanied her. She simply walked up and down the street in which the residence was located.

5 Whilst walking she spoke “a lot of weird stuff”. She pointed to a spot on the ground and said that they had to stay there and hold hands for 30 minutes. A suggestion that she sit down on a bench was met with a response that it was not safe. She expressed a conviction that someone was behind a fence waiting to “get us”. Quite unreferenced to any discussion she commenced to make enquiries about the workings of guns. Her father responded in order to try and divert her attention. She was reluctant to return to the house because “people were going to come and steal her and kill us all”.

6 Eventually she was persuaded to go inside and she was later observed to be violently striking the keyboard of her computer.

7 Sometime after midnight she came into Peter’s bedroom, wakened him and demanded to know the password for his email account. His failure to respond immediately was met with an outburst of uncharacteristically vulgar language. The parents came to the scene but the accused again tried to leave the house but was restrained and relieved of keys which she had obtained. She continued screaming and uttering obscenities.

8 The accused’s mother persuaded her to take some medication (Valium) and after this she appeared to calm down but she did not seem to sleep.

9 After daylight on the morning of 5 July, her mother fed her some scrambled eggs and reminded her that she had an appointment to see a psychiatrist Dr Lucire. The accused said that she couldn’t go but she was coaxed into entering the car. On the journey she asked to go home but, accompanied by both her parents, they arrived at a car park adjacent to the doctor’s office. The accused expressed fear that there was a bomb in the car park but she accompanied her mother to a toilet which was on the way to the office. As Susan Walicki went to enter a cubicle the accused commenced to beat her with her fists. A bystander came to her aid and, alerted by the commotion, Michael Walicki attended and took custody of the accused.

10 Mrs Walicki fetched Dr Lucire who came down and took the accused, who refused to mount an escalator, to a nearby coffee shop. Dr Lucire told the parents that she could not make a diagnosis without a consultation in her rooms and she advised that the accused be taken home and to return to see her in the following week.

11 I interpolate that there was tendered a copy of a notification to the New South Wales Medical Board signed by Drs Furst and Guiffrida, psychiatrists at Justice Health, concerning Dr Lucire’s assessment and treatment of the accused. The evidence does not include any response by Dr Lucire. It does include a letter authored by Dr Lucire dated 4 November 2006 addressed to “The Magistrate” in which she expresses opinion about increasing depression, psychosis and akathisia as a result of side effects of drugs which were then being administered to the accused at Banks House, a psychiatric unit attached to Bankstown-Lidcombe Hospital. The letter claims that a particular drug was “unlawfully given” and that the accused was psychotic, had a religious mania which could be schizophrenic and “will not recover” on the medication which was then being administered. There was a hearing by a visiting magistrate with a view to a community treatment order pursuant to mental health legislation but it is an agreed fact that the letter from Dr Lucire was not put before the magistrate. I refer to this matter to observe that I am not in a position to resolve the obvious underlying dispute which can be identified from the notification by Justice Health and Dr Lucire’s letter, nor is it necessary for me so to do in order to reach verdicts on the indictment.

12 I return to the narrative of facts. The accused and her parents arrived home after her mother had gone to see their local GP, who in turn had contacted Dr Lucire who indicated that she was happy to see the accused in the future on a twice weekly basis. After the return home Susan Walicki felt a need to get out of the house and she went outside to mow the lawn and Kathryn, her daughter, came to assist. The accused and her father remained inside.

13 I am satisfied to the necessary standard that whilst in the house the accused armed herself with a long bladed knife and with requisite intent inflicted multiple stab wounds on her father and that he died as a result thereof. The accused then came out of the house and, in a regression to the language of childhood, said “Mummy, Mummy, something bad has happened but I don’t know what it is, can you come in and have a look”. Susan Walicki entered the house and saw her husband lying on the floor in a pool of blood. As she bent over him the accused made a frenzied attack, stabbing her mother in the back with the knife. I am satisfied that the multiple stabbings then inflicted were woundings and were accompanied by the intent as charged in the third count of the indictment.

14 Susan Walicki, although severely injured, managed to evade the accused by making her way through a back door and she went to Kathryn who had resumed the lawnmowing. The accused came out of the house and started to chase Kathryn who ran inside. The accused followed her. I am satisfied that whilst inside the house, the accused with the same intent inflicted multiple stab wounds upon Kathryn who died as a result of those wounds.

15 The remaining issue is the mental responsibility of the accused for these acts at the time of the killings and the wounding. It casts considerable light upon the issue to consider the conduct of the accused as observed immediately thereafter.

16 A next door neighbour, a Mr Galloway, had come to assist Susan Walicki who was lying on the ground. Whilst he was so doing the accused simply walked from the house carrying the knife. She looked at Mr Galloway who thought that she appeared calm and she walked away. Later he noticed her still carrying the knife and she walked past the driveway to his house. He noticed her approach a white Mazda sedan and get into the front seat. Obviously, he then turned his attention to trying to assist the critically injured Susan Walicki.

17 The Mazda sedan was being driven by Mr Borg, another resident of the street. The accused had signalled him to stop which he did. She spoke to him through the passenger window. She said, “Are you here to pick me up?” And he replied, “Do you need a lift?” She said, “Are you here to take me?” And he said, “I don’t think so”. But she got into the passenger seat of his car. He noticed blood on her clothing and on her arm. He asked her, “Where are we going?” And she replied, “Aren’t you the person taking me to Croatia?” He said, “Oh, I don’t think so” and she responded, “You mustn’t be the person I’m waiting for”. She then got out of the car.

18 This exchange and the remarks of the accused are self evidently bizarre and they are even more so with the inexplicable reference to Croatia. The evidence is that the accused’s father was Australian born but of Polish descent and her mother comes from several generations of Australian born ancestors. Whilst the conduct and words of the accused cannot be judged by rational standards there is no clue as to why she would consider that she would be going to Croatia.

19 Shortly afterwards the accused again entered Mr Borg’s car. She declined his enquiry as to whether she would like to go to hospital but in answer to his further query she said that it would be good to go to the police station. Before they could set off, she again alighted from the car. At this time Mr Borg saw a police vehicle arrive and he approached it and reported what had happened to the officers.

20 After the accused left Mr Borg’s car she ran to another vehicle which was being driven by Mrs McCubben, another resident of the street. Mrs McCubben locked her car preventing entry by the accused who then walked on down the street. She was stopped by Constable Sheldrick who drew his pistol and ordered her to lie on the ground. She complied and was placed under arrest.

21 As other police were arriving, the accused was making intermittent remarks. She referred to having “butchered” her family. She exhibited some confusion about the number of victims. Later the accused was taken by ambulance officers to Liverpool Hospital. As she had been arrested, she was escorted by Constable Beltrami. He took a note of conversations which the accused had with Ambulance Officer Mannion. The text of the exchanges offers compelling examples of the accused’s irrationality. The initial notes read: (M refers to Ambulance Officer Mannion and A to the accused):

“M Why did you go to Rozelle for?
A Because I was pregnant.
M How old is the baby?
A She’s dead.
A Where the fuck am I?
M You’re at the hospital.
A I don’t want to be at the fucking hospital.
M Who did this to your hands?
A This bitch Danny did them.
M Do you know Danny?
A She’s a whore. I know her face she’s fourteen.”

22 The accused has never been pregnant and the evidence does not identify “Danny”. The constable noted further conversation:

“M How did these cuts happen to your hand?
A Because I was rapped (sic) today. I just want a fucking knife. I want more killing.
A short time later the accused said:
A I’ve been at Kogarah before for fucking too many people.
M What suburb do you live in?
A Marrickville.
M What street?
A Fucksville.
Short time later the accused said:
A More I need more. The fucking knife, the fucking knife. In the front door.”

23 Constable Meekin who had arrived at the scene with Constable Beltrami followed the ambulance to the hospital. After they arrived there, he saw the accused with Ambulance Officer Hume and a triage nurse. I extract from the agreed statement of facts a description of what Constable Meekin saw:

“He observed that the accused became anxious and started to yell and scream:
‘A I hate religion, fuck, fuck, fuck. My name is Joy I want to go back to Marrickville. My name is Joy and I live in Marrickville.
A Today is Sunday. My pain is not that bad I should be able to go home.
A do you know what would be scary; the end of the world, a good place to go would be with all the murderers and rapists’.
Following these statements by the accused she then started to scream and laugh. After several minutes she appeared to become angry and said ‘I want to die, die, die, die, die, die I want her to die the bitch; I want the bitch to die. My mans a bastard, its disgusting, die, die, die, die, die, die, die, die.’
Following this outburst the accused then started to kick and scream and shake uncontrollably. The accused was restrained by hospital staff and then sedated.”

24 As I have mentioned, the evidence of family members is that the use of crude language was not part of the accused’s ordinary behaviour.

25 That an incipient mental illness was becoming florid was detectable for some time before the events of 4 and 5 July 2007. Among other signs and symptoms the accused was considered by a number of people, both family members and friends, as having developed a religious mania. She was known to be approaching people with unacceptable zealotry. She had, over a period of time moved between a number of sects of Christianity, her final association being with a Pentecostal ministry called “Hope Central”, which was part of the Assemblies of God. To them she attempted to make very large donations but on being apprised of relevant circumstances the church refunded the money.

26 It is not necessary to elaborate on these aspects nor upon the accused’s encounters whilst employed as an apprentice chef. Neither is it necessary to discuss a failed relationship which the accused had with a young man nor with those with whom she shared accommodation when living away from home (at one time she shared a house with her sister and another) save to say that it was a common experience for all these people to observe that there was “something wrong” with the accused.

27 She had returned to the family home in about August 2006. It was after this return that her mother became aware that she harboured a thought that she was possessed by an evil spirit. The accused sought to “talk about Jesus all the time” and she went on long walks at strange hours, calling in and speaking to people about Him. Her behaviour was of such concern that on 24 October 2006 Susan Walicki approached the police and as a consequence of her call the accused was taken to be assessed at Banks House. She was diagnosed as schizophrenic and on 1 November 2006 a visiting magistrate ordered that she be detained for 14 days. On 15 November the accused again appeared before the visiting magistrate and the evidence includes a “Form 20” under the Mental Health Act 1990. This pro forma indicates by a series of ticks the findings of the magistrate that the accused was then on the balance or (sic) probabilities suffering from a mental illness characterised by (a) delusions; (b) hallucinations; (d) severe disturbance of mood and (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms (including (a) (b) and (d) as stated).

28 The further finding was indicated:

“Owing to that illness and the continuing condition of the person and the likely effects of any likely deterioration in that condition, I further find that there are reasonable grounds for believing that, care treatment or control of the person is necessary:
(a) for the person’s own protection from serious harm.”

29 However, further in the document under the heading “Final Orders” it is recorded:

“I find the patient not to be a mentally ill person under the Mental Health Act 1990 for the following reasons no active characteristics of the illness present and no longer likely to harm herself”.

Immediate discharge was ordered.

30 At about this time, concern about the mental health of the accused had led to the arrangements for her to be seen by Dr Lucire. The evidence includes some oblique references to an association of Michael Walicki with the cult of Scientology and its apparent reluctance to recognize any benefit which might flow from the practice of psychiatry. Despite these references it appears that it was Michael Walicki who sought out Dr Lucire who was a qualified and practising psychiatrist. There are also references to his beliefs in the maintenance of health by particular diets and the acquisition for his daughter of some non-psychiatric medicines. There is nothing which demonstrates that any act or omission by Michael Walicki in the pursuit of his asserted beliefs was of any causative consequence to the mental condition of the accused at the time of the acts of killing and wounding.

31 As I mentioned at the outset, counsel have expressed themselves to be “ad idem”, the Crown Prosecutor candidly stating, “the fact is that she’s not guilty by reason of mental illness”. In response to my enquiry about the McNaughten test, whether the accused did not know the nature and quality of her acts or whether she did not appreciate that they were wrong he indicated, “both”.

32 The assessment by counsel of the unanimous thrust of psychiatric opinion as focussed upon the events of 5 July was plainly correct. I extract some significant passages from the opinions.

33 Dr Furst, earlier mentioned, is a consultant forensic psychiatrist retained by Justice Health. His report of 3 October 2007 was specifically prepared in relation to an upcoming bail hearing but he was advantaged by having participated in the care of the accused from 11 July 2007 only a few days after the central events. His report included:

“Ms Walicki’s psychotic illness appears to have developed over the last two years ago, and which has continued to the present date. Her illness has been characterised by paranoid delusions, religious delusions, and delusions of reference, auditory hallucinations, and marked disturbance of mood and affect. It is highly likely that she killed her father and younger sister and stabbed her mother in response to her delusional beliefs that she was going to be killed, that her family were involved in this, and that they had to die with her. In my opinion she has the defence of mental illness open to her and is very likely to become a forensic patient requiring ongoing rehabilitation and a gradual reintegration into society.
Although there has been substantial improvement in her condition over the past 12 weeks, she continues to present with acute signs of illness, including a belief that she will be tortured and killed, that a catastrophic event will take place in September, and a recent episode of self-harm; which was an attempt to avoid these perceived outcomes.

Clearly, Ms Walicki remains at high risk of suicide and high risk of violence.”

34 Dr Olav Nielssen was retained by the accused’s solicitors and saw her on 30 August 2007 and 17 October 2007. His report of 28 October 2007 identified source documents made available to him. In particular he had access to treatment notes by Dr Lucire which he stated had been obtained pursuant to a search warrant. The date of first consultation by Dr Lucire which he records as 14 November 2007 is clearly a typing error and should read 14 November 2006.

35 He expressed a diagnosis of schizophrenia and an opinion in these terms:

“The diagnosis of schizophrenia is made on the basis of a history of at least two years’ decline in social performance associated with the advent of abnormal behaviour and bizarre beliefs that are typical of acute schizophrenia. The documents show that Ms Walicki experienced hallucinations of voices she took to be the voice of God for at least six months prior to her admission to Bankstown Hospital in October 2006. She was treated with a potent antipsychotic medication for the two weeks she spent in hospital, but had only minimal treatment in the form of tiny doses of chlorpromazine in the period between her discharge and her arrest.
The notes made by Ms Walicki’s treating psychiatrist Dr Lucire, on 3.7.07 indicate that she was acutely mentally ill at that time. The accounts of her behaviour around the time of her arrest and in the period immediately after her arrest confirm that she was acutely mentally ill when she stabbed her father and younger sister to death and seriously wounded her mother.
I believe Ms Walicki has the defence of mental illness open to her, as she was acutely mentally ill at the time of the stabbings. She was in the acute phase of the chronic mental illness, schizophrenia, which is recognised in law to be a disease of the mind. She had the defect of reason that the messages she was receiving were from God that led to the delusional belief that she and her family were in acute danger. At the time of the stabbings she was unable to reason with sense or composure about the consequences of her actions because of the gross disturbance of logical thinking and emotional regulation arising from her severe mental illness.”

36 Dr Bruce Westmore saw the accused on 1 February 2008 at the request of the Office of the Director of Public Prosecutions. He tendered a provisional diagnosis of schizophrenic illness and an alternative of schizo-affective disorder. He stated that the course of her illness would eventually determine definitive diagnosis. His opinion was expressed:

“Ms Walicki is a twenty six year old woman who appears to have developed her first acute psychotic episode in 2006. She had auditory perceptual disturbances, religious delusional beliefs and a severe behavioural disturbance characterised by ‘manic’ type symptoms. She was admitted to Banks House from 24 October until 15 October (sic -November) 2006. Diagnosed with schizophrenia she was treated with antipsychotic medication.
An attempt was made to place her on a community treatment order but that was apparently resisted by a private psychiatrist. Her treatment in the community continued with the assistance of a general practitioner and the private psychiatrist. Her father/?family may have resisted her being treated with medication because of her father’s beliefs in Scientology and the treating psychiatrist appears to have been of the view that her psychotic symptoms were the result of medication she had been prescribed.
Unfortunately, she appears to have been ineffectually treated or under treated and as a result her psychotic illness persisted. In the context of her psychosis she attacked family members, killing her father a younger sister.
In her history to me she stated that at the time of the homicides she was fearful in her mood, she had disturbances of her biological functions and she was hearing voices telling her that she should harm herself and that she had to die. When asked specifically did she remember what she was thinking at the time of the homicides she said, ‘I was thinking I was hearing voices say, kill your family and I was thinking, yeah, I have to do that’. Tragically she acted on those auditory perceptual disturbances and two family members died as a result.
Since being appropriately treated Ms Walicki’s mental illness has shown some positive response and is moving towards remission.
She is fit to be tried at this time and she would be able to raise the defence of mental illness in relation to the charges of murder she currently faces. She was suffering from a disease of the mind (an acute psychotic illness, probably schizophrenia) at the time the homicides occurred. She was acting on auditory hallucinations and probably delusional beliefs in relation to herself and the deceased. Her illness would have totally deprived her of the capacity to know that she ought not to do the act in relation to her father and younger sister. She was suffering from a defect of reasoning as a result of her mental illness.
She requires continuing psychiatric care and most importantly, she needs to remain on medication under proper medical supervision.”

37 Both Dr Nielssen and Dr Westmore are well known forensic psychiatrists of high repute.

38 Given the evidence and these opinions, I am abundantly satisfied that it is established on the balance of probabilities that the accused was mentally ill at the time of the killings and the wounding, being afflicted by a defect of reason from a disease of the mind which prevented her from appreciating the nature and quality of her acts and that they were wrong.

39 I therefore find special verdicts of not guilty by reason of mental illness on each count of the indictment.

40 Pursuant to the Mental Health (Criminal Procedure) Act 1990, I order that Linda Jane Walicki be detained at the Bunya Unit, Cumberland Hospital and thereafter in accordance with the directions of the Mental Health Review Tribunal until released by due process of law.

41 I direct the Registrar of the Court to forward to the Mental Health Review Tribunal a copy of this judgment, a transcript of the proceedings and the trial evidence.

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