R v Woszatka

[2018] NSWSC 1664

Supreme Court

New South Wales

Medium Neutral Citation:

R v Woszatka [2018] NSWSC 1664

Hearing dates:

29 October 2018 & 30 October 2018

Date of orders:

01 November 2018

Decision date:

01 November 2018

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

The Court makes the following orders:

 

(1) Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to the charge of murder.

 

(2) Pursuant to the same provision, a special verdict of not guilty by reason of mental illness is returned with respect to the charge of assault occasioning actual bodily harm, that charge being dealt with pursuant to s 167(1A) of the Criminal Procedure Act 1986 (NSW).

 

(3) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Joel Woszatka is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

 

(4) I direct that the Registrar notify the Minister for Health of these orders.

 (5) I direct that the Registrar notify the Mental Health Review Tribunal of my verdicts and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, and a copy of trial exhibits A28, A59, A65, A82, A89, 1, 2, 3, and 4.

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – alleged murder by accused of his mother – defence of mental illness – long history of mental illness – expert evidence unanimous that defence is available – accused untreated for six months prior to alleged offence – chronic and severe schizophrenia – delusions involving deceased – related charge to be dealt with - not guilty by reason of mental illness

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

The King v Porter [1933] HCA 1; (1933) 55 CLR 182
R v M’Naghten (1843) 8 ER 718

Category:

Principal judgment

Parties:

Regina
Joel Woszatka

Representation:

Counsel:
Mr P Lynch (Crown Prosecutor)
Mr E Ozen (Accused)

  Solicitors:
Solicitor for Public Prosecutions
Ms S Coulson

File Number(s):

2017/00283410

Publication restriction:

None

Judgment

1. HER HONOUR: On the morning of 18 September 2017 Lanell Latta was stabbed to death in her bedroom at her Avalon Beach home. Her youngest son, Joel Woszatka, was arrested later that morning, and subsequently charged with her murder.

2. The accused made application pursuant to s 132(1) of the Criminal Procedure Act1986 (NSW) for his trial to be heard by a judge sitting alone and, the Crown consenting to that course, on 6 July 2018 the Court made the requested order, as is mandated by s 132(2) of that Act.

3. The accused’s trial commenced on 29 October 2018 upon his arraignment on an indictment charging that he did, on 18 September 2017, murder Lanell Chris Latta. He entered a plea of not guilty by reason of mental illness.

4. The Crown case is before the Court largely in documentary format, with the evidence admitted without objection. Ex. A1 to A92 contains all statements and other evidentiary documents and things upon which the Crown relies. The Court additionally heard short oral evidence from Leading Senior Constable Steven Moffat, Geoffrey Robson-Scott, Levon Woszatka, and Detective Senior Constable Jessica Tyrell. The Crown was able to present its case in that way because there is no dispute as to the circumstances surrounding Ms Latta’s death, and no dispute that, at the time of her death, the accused was seriously mentally ill with acute, if also chronic, schizophrenia. The Crown tendered a report (Ex. A65) from Dr Adam Martin, forensic psychiatrist, and called evidence from the doctor, as to that aspect of the matter.

5. The accused’s case also proceeded with the tender of a considerable amount of documentary material, being medical records concerning psychiatric treatment administered to the accused from time to time, from Justice Health (Ex. 1), Manly Hospital (Ex 2, and part of Ex. 3), and other agencies that have been involved with the accused’s care (Ex. 3). A summary of some of the more significant events in the accused’s medical treatment is Ex. 5. Two reports from forensic psychiatrist Dr Olav Nielssen were tendered (as Ex. 4), and the doctor gave evidence to the Court on 30 October 2018.

The Evidence

The Accused’s Early Years and Illness

6. The accused was born on 10 April 1992 to his mother, Lanell Latta, and his father, Benjamin Woszatka. He has a brother, Levon, who is about 2 years older than him. The accused’s parents separated when he was aged about 12 months, and divorced when he was aged about 4 (although there are discrepancies as to the timing of these events in the various accounts of relevant witnesses). Thereafter, the accused spent time with both his mother and father. It appears that his early years were somewhat unstable, as he moved between living with his mother on the Northern Beaches of Sydney and living with his father in the Shoalhaven area.

7. The accused left school prior to completing Year 11 at High School and subsequently commenced an apprenticeship with the intention of qualifying as a chef. His father, with whom he was living at the time, regarded him as a “normal young man” until a time in 2009 or 2010 when, he believed, the accused began to use illicit drugs. The possible first signs of mental instability appeared, with Mr Woszatka reporting that the accused was emotionally “up and down”, ceasing to pay bills or contribute to the household. He did not complete his apprenticeship, and his employment ended. His paternal grandmother, Marcia Christian, saw him become withdrawn and introverted, and she sometimes had to force him to eat.

8. The accused returned to the Northern Beaches to live with his mother around 2011.

9. On 4 February 2015 the accused was admitted to Manly Hospital after arriving in an ambulance self-presenting with “reported bizarre behaviour”. The accused was reported to have contacted police and an ambulance after experiencing homicidal thoughts towards his step-father, and becoming fearful that he may act on them. He had also been involved in an altercation at an Avalon club, striking a friend in the face without provocation, after having heard voices instructing him to do so. Hospital notes (Ex. 1.1) refer to the accused’s condition as a “probable drug induced psychosis” and record his history of daily consumption of cannabis and alcohol. Test results showed him as positive for amphetamines, and the accused reported having used “everything”, including “ice”, cocaine, LSD and “ecstasy”.

10. On 5 February 2015 the accused reported to hospital staff having experienced delusions and ideas of reference for the previous 18 months, without treatment. He expressed persecutory beliefs centred on family, including an assertion that his mother used her hands to “drive a stake in my heart”, a possibly occult activity in which he thought other family members conspired to harm him. The accused said that he feared for his safety from family members, whom he thought had the ability to control him remotely.

11. Ms Latta, whom hospital notes refer to as supportive of her son, reported to staff that, the night before his admission, the accused had told her that God had instructed him to kill her. Two weeks previously, he had been found wandering in Avalon not knowing where he was, or what time of day it was (p 13 of 109, Ex 1.1). His presentation was described by staff variously as “malodorous”, “skinny”, “poorly kempt”, and “barefoot”, and his thoughts and speech as rambling, disordered, and guarded. When questioned the accused is said to have gone “on a long tangent of nonsense” (p.13 of 109, Ex. 1.1).

12. Having been told that he would have to remain in hospital the accused become very agitated, and began posturing with clenched fists, seemingly ready to throw a punch. Security had to be called and eventually he was able to be medicated with Olanzapine. Manly Hospital records noted,

This is a young man who presented to hospital acutely psychotic. Family reports indicate that this process may have been building up for a period of up to 6 months. […] It is very possible that this is a first presentation of schizophrenia.

13. On 6 February 2015 the accused climbed a perimeter wall and absconded from the Hospital, going to his mother’s home. Police were called and he was returned to the Hospital by police.

14. On 13 February 2015 hospital staff reported to the Mental Health Review Tribunal that the accused was thought disordered, and expressing paranoid delusions about his family, witchcraft, and bikie gangs. He was also experiencing auditory hallucinations. He was regarded as having little or no insight into his condition, and requiring four weeks of involuntary admission to stabilise him on anti-psychotic medication.

15. By 1 March 2015 the accused was recorded as remaining “slightly perplexed” but he was calm and co-operative. He had responded reasonably well to anti-psychotics. Discharge was anticipated for 4 March 2015, however, the accused went on day leave with his father on 3 March 2015, and failed to return, travelling to the Shoalhaven area without necessary medication.

16. On 4 March 2015 the accused’s father telephoned Manly Hospital to report that his son’s behaviour had been erratic, and he was “not well”. Arrangements were made for him to attend Nowra Community Health Centre where he would be prescribed Olanzapine.

17. On 6 March 2015 the accused was admitted to the Mental Health Unit at Shellharbour Hospital. His behaviour was unpredictable and violent, and he had assaulted his father and threatened others. Records refer to the accused exhibiting homicidal ideation and paranoia. He was determined by doctors to be psychotic and commenced on Olanzapine. The accused was discharged on 24 March 2015, it appears with a referral to a community mental health team, which was not taken up by him.

18. On 13 February 2016 the accused had an acute psychotic episode and was taken to Manly Hospital. He was referred to the Beaches Early Intervention Centre (“BEIC”).

19. On 18 March 2016 the accused was again admitted to Manly Hospital, having been brought there by Ms Latta, who asked that he be assessed. She reported that he had been insomniac for three days and was unable to stay still. On admission he paced around the Emergency Department picking up rubbish from the floor and closely examining electrical sockets. He appeared perplexed, bewildered, and hypervigilant, and expressed delusional beliefs. He was observed to respond to internal stimuli. It was recorded that the accused had been untreated since he had absconded from Manly Hospital the previous March [presumably, excluding the treatment administered to him in Shellharbour Hospital in March 2015]. A risk assessment identified the risk of “self-harm, violence / aggression, vulnerability) (Ex. 1, p. 9 of 254), and there is another reference to the accused being violent when unwell. The diagnosis was of schizophrenia and treatment commenced.

20. The accused’s symptoms during his hospitalisation included paranoid delusions, showering as many as 40 times each day, and feeling tormented by hearing voices. He was reported to frequently check and touch items, or rearrange the array of items repeatedly.

21. On 12 April 2016 the accused absconded from the hospital and went to his mother’s home. She returned him to the ward. He was subsequently treated with Paliperidone by depot.

22. Towards the end of his stay at the hospital, Dr Annette Albright made an application for a community treatment order (“CTO”) for the accused. She said,

This is now Joel’s 3rd psychiatric hospital admission in the past year for psychosis. He has demonstrated poor insight about his illness and his need for ongoing treatment as evidenced by his absconding from hospital on three occasions and his not following up with treatment and medication after his first 2 hospitalisations. […] There are ongoing risks if his continuing condition is untreated, including risk to reputation, risk to relationships, and risk of misadventure. There is doubt that Joel will engage in follow-up treatment voluntarily. Therefore the treating team is requesting a 6 month CTO with the provision of ongoing depot medication.

23. An order for 6 months was made.

24. When the accused was discharged on 9 May 2016 to his mother’s home he was medicated with Paliperidone by monthly depot injection, and daily doses of Olanzapine and Diazepam. A case worker, Phil McGough from BEIC, was allocated to the accused.

25. The accused’s case worker saw the accused the following day, and regularly thereafter. It was necessary for Mr McGough to go to the accused, as the accused typically did not make, or made and did not keep, appointments at BEIC premises.

26. In November 2016 the CTO was extended for another 6 months, expiring in May 2017.

27. A summary of the interaction between the accused and BEIC is contained in Ex. 3.3, and notes,

Throughout there has been ongoing poor engagement with BEIC due to a likely combination of active avoidance, poor insight, and disorganisation. Limited alliance between BEIC and NOK [next of kin]. Logistical issues; relied on public transport; lives in Avalon. Rarely has credit on his phone and rarely answers calls.

Joel was treated with a depot anti-psychotic under a CTO for the 1st twelve months post patient d/c [discharge].

[…] SE [side effects] from Rx [prescribed medication] persisted, impacting on drive, motivation, and ability to find work. In March 2017 NOK requested cessation of psychotic medication as they felt it was contributing to Joel’s lack of drive and motivation. Meeting with Joel, Mum, and Mum’s partner in March. Family supported trial off Rx. Treatment recommendations and potential risks outlined to family. Joel agreeable to continue with BEIC case manager HVs [home visits].

28. In around May 2017 the CTO lapsed. A BEIC note was made on 6 July 2017, observing that the accused was last given medication in March 2017, subsequently ceasing to take it “against medical advice”. Four home visits were conducted by BEIC staff to the accused from March to September 2017. The accused displayed a lack of drive and motivation, and was observed to be socially and occupationally impaired, regarded as “negative symptoms” of schizophrenia. There were no observed symptoms of psychosis.

Events Surrounding the Death of Lanell Latta

29. After ceasing in March 2017 to take any medication to treat his diagnosed schizophrenia the accused remained living with his mother at an address in Marine Parade at Avalon Beach. The accused occupied one of the two bedrooms in the house; Ms Latta and Ms Latta’s partner Geoffrey Robson-Scott occupied the main bedroom; whilst Levon Woszatka had a self-contained unit in a converted garage to the premises.

30. The accused was not working and, because of his disorganisation and consequent failure to comply with government requirements, the unemployment benefit that was his only source of income was suspended from time to time. Ms Latta and her partner felt that the accused was not making an adequate effort to obtain employment, and was not contributing to the costs of the household. Ms Latta embarked on what Mr Robson-Scott referred to as “a campaign of tough love”, particularly in the six months before her death. The campaign entailed strongly encouraging the accused to look for employment, and reminding him about matters such as counselling.

31. Ms Latta actively sought out suitable employment opportunities for her son but, when she suggested that he apply for particular positions she had found in classified advertisements, he typically became angry. Ms Latta resorted to threats to the accused, telling him she would kick him out of the house if he did not get a job. This “campaign” had led to arguments and a degree of disharmony between mother and son.

32. On the morning of 18 September 2017 Ms Latta and Mr Robson-Scott woke at about 10 o’clock, and Mr Robson-Scott went to the kitchen to make coffee. From the kitchen he heard Ms Latta get out of bed and walk to the accused’s bedroom door. He heard her knock, and the door open. Ms Latta could be heard urging her son to “book that counselling today”, a reference to contacting a mental health service (probably BEIC) to make an appointment to see someone there. She told her son, “Do that today, otherwise you don’t have much time”. Mr Robson-Scott understood Ms Latta to be referring to a deadline she had imposed on the accused to take steps to improve his situation, or move out of her house. The accused responded, although Mr Robson-Scott could not hear what he said. The exchange was not loud, and did not sound heated. Ms Latta then returned to bed.

33. Mr Robson-Scott took the coffee he had made into the bedroom he shared with Ms Latta and sat down at a computer. He could hear the accused in the kitchen, and Ms Latta called out to her son, asking him to bring some coffee into her bedroom. He responded, “You can do that”, and returned to his bedroom.

34. Soon after, at about 10.30am, the closed door of Ms Latta’s bedroom slid open, and Mr Robson-Scott looked up to see the accused standing in the doorway holding a large wide-bladed knife in his hand. The knife was one that Mr Robson-Scott recognised as having been kept in a drawer in the kitchen. The accused walked immediately into the bedroom and directly up to his mother where she lay on her back in bed. He raised the knife to shoulder height and plunged it downwards into his mother’s chest in a back-hand motion, with what Mr Robson-Scott estimated to be a great deal of force. Throwing or dropping the knife to the floor, he walked out of the bedroom. Nothing had been said, and the attack occurred so quickly Mr Robson-Scott had not had time to intervene.

35. Mr Robson-Scott ran to Ms Latta, who had fallen from the bed to the floor, and then chased after the accused’s departing figure. When he caught up to him, in the main living area, the accused turned towards him and threw several punches, striking Mr Robson-Scott in the head and face and causing bruises and lacerations. [This alleged conduct is reflected by a charge of Assault Occasioning Actual Bodily Harm, before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act, and with which the Court must deal, pursuant to s 167 of that Act.] The accused then ran out of the front door and away from the house. He returned a short time later, but ran off again.

36. Mr Robson-Scott returned to the bedroom and went to Ms Latta, whom he feared was dead. There was a great deal of blood on her, and on the bedding and floor around her motionless figure. After realising his mobile phone was not operational Mr Robson-Scott shouted for help.

37. Anna Plowman lived next door to Ms Latta’s house, and was at home that morning, at the rear of her house, speaking with Peter Rayner, who had just arrived to mow her lawn. A little after 10am, Ms Plowman heard Mr Robson-Scott frantically shouting for help, and an ambulance. She and Mr Rayner rushed next door, with Mr Rayner entering the house. Mr Rayner saw Ms Latta on the floor and checked for a pulse. He could feel nothing and thought that she was dead. He returned to Ms Plowman, who was waiting on the lawn, and told her what he had seen. She told him to ring for an ambulance, and he got his telephone and called the Triple 0 Emergency Operator. A recording of that call forms part of the evidence (Ex. A48; A92).

38. Levon Woszatka had left the family home at about 10am on his brother’s pushbike. Returning home between 10.30 and 11am he saw the accused running south down Marine Parade, at a distance of about half a kilometre from their home. He noticed that his brother had some reddening to his neck. The accused slowed down to a jog, and told Mr Woszatka “Mum attacked me”. He said that he was going to “Guy’s”, a reference to the nearby home of his younger half-sister’s father.

29. When Mr Woszatka asked him if he was alright, the accused said only that he was going to Guy’s. Mr Woszatka offered the accused the pushbike but, after appearing to consider it, the accused said no. He then sprinted off down Marine Parade. Mr Woszatka returned home to find Ms Plowman and Mr Rayner at his house, and his mother injured or dead. He also telephoned 000 (Ex. A.41, A92).

30. Tracey Palombo lived at an address in nearby Palm Grove Road at Avalon. At about 10.30 that morning she saw a slim young man dressed in shorts and a tee-shirt walk up her driveway. This was the accused. He was sweating and appeared nervous, edgy, and distressed. He asked for a glass of water, which Ms Palombo obtained and gave to him. She asked the young man if everything was ok or if she could help him, but he responded “I’m fine. I’ve just been out for a run”. He refused her offer of a bottle of water to take with him, and left.

31. Shannon Fletcher, a resident of Elouera Road at Avalon, saw the accused at around 11am walking past her driveway. She noticed him because he seemed agitated or angry, walking with arms by his sides and fists clenched. She thought he looked drug affected or mentally ill. His manner and appearance was such that she felt nervous.

32. At 10:54am at Marine Parade, ambulance officers, who had been alerted to attend by a Triple 0 call logged at 10:40am, arrived at Ms Latta’s house. Police were already there. Ambulance Officer Randell Gatti entered the house and saw Ms Latta slumped on the floor, and Mr Robson-Scott kneeling beside her crying. On examining Ms Latta the officer observed a 4 centimetre laceration to the front of her chest, on the right side. There was a considerable amount of blood. A forged chef’s knife was on the floor between Ms Latta and the bed. The officer could detect no signs of life and determined that nothing could be done to help her. Ms Latta was dead.

33. Ms Latta’s body was examined on 20 September 2017 by Dr Bernard l’Ons, forensic pathologist. Dr l’Ons found a single incised wound to the right side of her upper chest. This wound had completely transected the second bony rib, and passed through the right lung, the right pulmonary artery, the oesophagus, the thoracic aorta and the left lung. There was a great deal of blood in both lungs and lung cavities, and there had been significant blood loss. The doctor concluded that Ms Latta had died as a direct consequence of the stab wound to the central chest structures.

Police Interaction with the Accused

44. The police officers who arrived at Ms Latta’s house in response to the calls to the Emergency Operator made an initial search of the premises for the accused, without locating him. A search for him began in the surrounding area.

45. Constables Brendan Kitchener and James Moorehouse were patrolling the area in a marked police vehicle when, at about 11.30am they observed a dishevelled looking young man wearing knee length pants and a tee-shirt walking along Elouera Road at Avalon. The officers followed him and, although they lost sight of him briefly, they were able to stop him soon after in Ruskin Rowe. When the male was asked his name he responded “Joel”. He was trembling.

46. Constable Moorehouse asked the young man his last name and was told “Woszatka”. The officer then cautioned the accused and asked him, “What happened today”. The accused said,

She came into my room while I was having bad dreams. I lost control. I couldn’t stop moving.

47. The accused was arrested. He was asked about the knife, and said “it’s at the house”. When Constable Moorehouse asked the accused “Did you kill her”, the accused responded “Yes”.

48. An exhibit bag was placed over each of the accused’s hands, to preserve any forensic evidence. When a vehicle arrived to transport the accused to the police station, the accused was asked briefly about what he had earlier said to Constable Moorehouse, with the conversation recorded on a mobile phone (Ex. A89). He was again cautioned, and asked to confirm the conversation. He did so. The accused’s clothing was secured and his feet were covered by evidence bags. He was taken to Manly Police Station.

49. At the Police Station the accused was entered into custody by Sergeant Simon Whitfield. The officer thought that the accused appeared to be ill and, on a brief assessment, he noted him to be “Mentally Ill”. The Custody Management Record (Ex. A31) records,

Possible mental illness – appears to be confused and concerned […] States may have psychosis but unsure if Doctor diagnosed – continued to state he doesn’t believe he has that anymore and is okay”.

50. The record also contains the following observations:

States is not taking any medication – appeared confused in his answer. Stated he was taking anti-psychotic (name unknown) but ceased taking them 3 / 4 weeks ago at Direction of Dr Phil (last name unknown).

States has been told he has psychosis however doesn’t know if he was told that by a Doctor or not.

Seated in dock 2. Appears nervous. Shows little to no emotion even when advised the allegation he has been brought in for.

Appears confused and nervous about situation. Answers all questions, seems to be as honest as possible. Appears to have difficulty with remembering details.

51. At some stage the accused punched a wall in the cell in which he was held, bruising his hand.

52. He was given an opportunity to speak with a lawyer over the telephone. He was then interviewed by Detective Sergeant Justin Hadley and Detective Senior Constable Tyrell. The interview forms part of the evidence (Ex. A35; A82). When asked about his mother’s death, the accused chose not to comment, he said in accordance with the legal advice he had received.

53. The accused was charged with murder, and with the assault upon Mr Robson-Scott, and later refused bail by the Local Court.

Admission to Corrective Services NSW

54. On 19 September 2017 the accused was received into the custody of the Department of Corrective Services. Justice Health clinical notes of that date indicate that at the time the accused was received, at 5.30pm, he had punched a Police cell wall, and was reportedly “hearing voices”. He could not recall what the voices had said. He was not sure whether he had uncles or grandparents.

55. The accused was seen by a psychiatrist, Dr K. Deon, whilst in custody on 25 September 2017. The doctor reported that the accused was “not sure” if he was hearing voices at the time of the alleged offence, but had heard voices in the past. The accused told the doctor that he was not sure whether he had a mental illness, denied having any mental health problems, and did not think that he needed medication. He appeared tense, anxious and guarded, with limited expression, fixed eye contact, no spontaneous speech, and brief responses to questions (often, the response “Not sure”).

56. The doctor considered the accused to be “likely thought disordered”, although with “no clear delusional content”. The accused was assessed as “likely” having schizophrenia and psychosis, with no insight into his illness.

57. On 9 October 2017, the accused was again seen by Dr Deon, who considered him to have prominent negative symptoms and paranoia. Though family members including his grandmother had attempted to visit the accused on several occasions, he had refused to receive the visits, or contact or see his family, and he was preoccupied with his medical records and his “file”. Again, he reportedly had no insight into his condition, and denied he had a mental health issue or required medication. Similar symptoms are reported in a further assessment on 17 October 2017.

58. On 24 October 2017, the accused was referred to the Mental Health Screening Unit at Silverwater Gaol, on the basis that he had displayed psychotic symptoms and was refusing to consent to an increase in medication. He had punched another inmate in an unprovoked attack. Clinical notes under the hand of Dr R Gopal on that date indicate that the accused was reportedly “not sure” of his charges, but thought perhaps it was “assault of his mother and her boyfriend”. He appeared generally vague in his responses, but oriented as to place and time. He was guarded about his mental illness and offending behaviour; thought disordered, with a poverty of thought content; with flattened affect. He was dishevelled and distracted; and considered to possess poor insight, including a denial of any mental illness and a belief that “being around [the] beach and family caused him voices in [the] past”.

59. He has remained in a disturbed state during his time in custody, and has been treated with anti-psychotics, including Clozapine, a medication generally prescribed to persons with treatment resistant chronic schizophrenia. The accused was held for a time at the Long Bay Hospital Mental Health Unit under Mental Health legislation (where he assaulted a second inmate without provocation). In a note he dated 3 and 4 March 2018 the accused wrote,

I accidentally killed my mother due to the fact I was acting out of self-defence I was scared I was going to be killed by them a lot of the time I have obligashion on the outside like helping my gran move my family does not want me in jail.

60. The accused is now in the Hamden Unit at the Metropolitan Remand and Reception Centre. He continues to be treated for chronic schizophrenia.

The Evidence of Dr Martin and Dr Nielssen

61. Dr Martin examined the accused at the request of the Crown, on 24 May 2018. He also reviewed extensive documentary material concerning the commission of the alleged offence, and the accused’s medical history. His report of 29 May 2018 is Ex. A65.

62. Dr Martin found the accused to be a “vague and preoccupied historian” who gave brief responses devoid of detail. He reported having been diagnosed with psychosis and schizophrenia, but did not agree with the diagnoses. Of his mother’s death, the accused acknowledged having caused it, and said,

I just woke up in a bad mood, she came into my room telling me to get a job again, I just had enough.

63. Although he denied having experienced hallucinations, when asked if his mother was trying to harm him he said he was not sure, and conceded that he may have had such thoughts previously. He said,

I was thinking that if I stabbed her, she’d still be alive, but she’d somehow come back.

64. He made reference to his mother being given a new body, but looking the same when she came back. He thought she may show up, and visit him, but then said he didn’t think it would happen.

65. On presentation the accused was unshaven, unkempt, and malodorous, with lank hair and long fingernails. He was coherent in speech, but spontaneity was reduced and his responses were impoverished in content. He was vague, concrete, and ambivalent. His affect was significantly blunted. His insight was very limited.

66. The doctor reviewed the documentary material, including witness statements and notes of the accused’s medical history, the latter containing references to earlier violence and threats of violence by him when in a psychotic state.

67. Dr Martin agreed with earlier diagnoses of schizophrenia, that being a disease of the mind which impacts adversely on an individual’s capacity to reason. Schizophrenia is a disorder of chronic vulnerability to the experience of psychotic symptoms, and is a major mental illness. It is one that carries with it a recognised risk of violence from the sufferer. In the accused’s case, there is evidence that he has in the past carried out acts of unprovoked violence, or expressed thoughts of harming his mother, apparently as a consequence of receiving a delusional command from God to do so.

68. Taking all of the information available to him together, the doctor concluded,

In my opinion, it is highly likely that the alleged offending occurred as a product of a highly disturbed mental state and an enduring mental illness […] probably related to paranoid thinking and hallucinations.

69. Whilst Dr Martin thought that the accused probably acted intentionally and voluntarily, knowing the nature and quality of his actions, he opined that he did so without the capacity to reason with a degree of composure, or appreciate the moral wrongfulness of his conduct.

70. In oral evidence Dr Martin observed that the accused’s illness was a very serious and chronic one, and that its progression had followed a relatively typical path. The disorder had continued, even when treated, and even when the accused had no access to illicit drugs.

71. Dr Olav Nielssen saw the accused on three occasions, on 7 November 2017, 6 December 2017, and 15 May 2018. He, like Dr Martin, found the accused to be a poor historian who provided brief answers to questions with no real detail. His presentation was flat in affect, and it was difficult to obtain information from him about his history, or his current circumstances.

72. Of the circumstances surrounding the commission of the alleged murder of Ms Latta, the accused told Dr Nielssen that “it happened pretty quick”. He said that he thought he had gone into the kitchen intending to poach some eggs, and,

[…] one minute I was standing there and cooking breakfast and the next I was walking into my room…and by the time I turned around I was shaking so much and this had happened (p.3 of Ex. 4, report of 16 May 2018).

73. The accused had a memory of himself running down the street feeling a bit emotional and shaky. He said that he had felt that something else was controlling him, and he thought that stabbing his mother was something he had to do.

74. Taking all of the information available to him, being his own consultations with the accused and the extensive documentary records relating to the accused’s history, and events of 18 September 2017, Dr Nielssen concluded that the accused had a severe form of chronic schizophrenia at the time of the commission of the alleged offences, a condition which endures. He thought it likely that the accused was experiencing symptoms similar to those reported on his earlier admissions to Manly Hospital, which included persecutory beliefs involving his mother, and hallucinations of voices and other psychotic experiences directing his actions.

75. In oral evidence Dr Nielssen described schizophrenia as a disease of the mind involving,

a group of disorders, manifesting with the syndrome of both the acute symptoms of hallucinations and delusions and communication disorder, but also the chronic symptoms of loss of volition, poverty of thinking, neglect of self‑care, disorganization and so forth […] At its heart it's a neurodegenerative disorder where, at diagnosis, the volume of the brain's […] typically, lower than other people that age, and it declines at a faster rate as the rest of us (T35:13-28).

76. Dr Nielssen opined,

At the time of the offence he had a defect of reason in the form of an acute exacerbation of the illness brought on by having ceased treatment with antipsychotic medication six months earlier, while continuing to use cannabis […] the symptoms experienced in the period leading up to his mother’s death and in the months after his reception to prison are likely to have been similar to those reported during his two previous acute episodes of illness.

77. The doctor agreed with Dr Martin that, on balance, it is likely that the accused was aware of the nature and quality of his act in stabbing his mother in the chest but, because of his mental illness, he was deprived of the capacity to comprehend the moral wrongness of his act, or to control his conduct on that day.

Matters of Law

78. The offence of murder is one contrary to s 18 of the Crimes Act 1900 (NSW). In bringing the charge against the accused, the Crown assumes the burden of proving that charge beyond reasonable doubt. To discharge that burden, the Crown must prove that the accused voluntarily did an act (omission to act having no relevance in the circumstances of this case) that caused the death of Lannel Latta and, at the time of doing the act, the accused had the necessary mens rea or state of mind, that being, relevantly, an intention to cause grievous bodily harm to, or kill, Ms Latta.

79. The offence of assault occasioning actual bodily harm charged against the accused contrary to s 59(1) of the Crimes Act, is established where the Crown proves to the criminal standard that the accused deliberately applied unwanted force to the person of Mr Robson-Scott, causing him as a consequence some real hurt or injury that is more than passing or trivial.

80. Setting aside the defence of mental illness for the moment, there is no onus on the accused to prove anything, and it is not for him to prove his innocence. When interviewed by police the accused frequently chose to make no comment, and no conclusion adverse to him may be drawn as a consequence of his choice to do that which is no more than exercising his right to silence. That the accused did not give evidence before this Court is a matter of no significance; he was not obliged to do so and, again, no conclusion adverse to him can be drawn from that feature of the matter.

81. Here, the defence of mental illness was raised at the outset. That is a defence that gives rise to an onus on the accused to prove on the balance of probabilities that he is not criminally responsible for his act. What is required to be shown was set out in R v M’Naghten (1843) 8 ER 718 where the Court said (at 722):

“[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

82. The reference to the accused not knowing that his act was wrong is often referred to as “the second limb” of the M’Naghten test. It was further explained, to a jury, in The King v Porter [1933] HCA 1; (1933) 55 CLR 182 in this way (at 189 – 190):

If through the disordered condition of the mind [the accused] could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

83. Where the defence of mental illness is raised, it is necessary to first consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts: Hawkins v The Queen [1994] HCA 28; 179 CLR 500, at 517.

84. Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides for a special verdict where an accused is not criminally responsible. It is in these terms:

38   Special verdict

(1)  If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

85. There are consequences that flow from the return of a special verdict, as provided by s 39 of that Act, and by Division 2 of Part 5 of the same Act. I am fully aware of those consequences.

Consideration

86. On all of the evidence there can be no doubt that it was the accused who stabbed his mother with a single knife thrust to her chest on the morning of 18 September 2017, with her death directly attributable to that act.

87. There had been some discontent between Ms Latta and the accused in the months preceding the attack, as a consequence of what Ms Latta and Mr Robson-Scott perceived to be the accused’s apathy about employment and contributing to the household, and their determined efforts to have him, as they saw it, make an effort to move ahead with his life. This had earlier led to disputes and arguments.

88. The issue was revived when Ms Latta spoke to her son at around 10am that day, encouraging him to make an appointment for some counselling.

89. He was subsequently heard by Mr Robson-Scott to be in the kitchen, and there is clear evidence that the knife used minutes later to kill Ms Latta had come from a drawer in that room.

90. There is no issue of identification: Mr Robson-Scott saw the accused, whom he well knew, enter the bedroom, walk to the bed where Ms Latta lay and, with apparent deliberation, raise the large knife he had selected in the kitchen, and plunge it with force into his mother’s chest.

91. I am satisfied beyond reasonable doubt that the accused voluntarily took a knife and stabbed his mother to her chest, causing her death. I am also satisfied to that standard that, moments later, the accused deliberately applied unwanted force to Mr Robson-Scott by striking him about the face and head, causing bruises and lacerations.

92. It is necessary then, to turn to issues connected with the accused’s mental state, and the question of whether he can be regarded as criminally responsible for his acts.

93. Having considered all of the evidence before the Court, I have concluded with a degree of certainty that goes beyond the applicable civil standard, that he cannot be held criminally responsible for the death of Ms Latta, or for the assault upon Mr Robson-Scott.

94. It is very clear that the accused has been severely ill since, at least, 2015, when he first presented in a psychotic state to Manly Hospital, harbouring homicidal ideation towards Mr Robson-Scott, and having given voice the previous day to an hallucination that God had told him to kill his mother.

95. Whilst there have been occasional improvements to his condition as it manifested at that time, when treated assertively with anti-psychotic medication, it is also clear that the condition has endured, despite treatment.

96. It is possible, as noted in Manly Hospital records relevant to that first admission in February 2015, that the psychosis the accused was then suffering was drug induced, and it may be that the accused’s use of cannabis and amphetamines was what triggered his schizophrenic condition to manifest in the first place. His condition on 18 September 2017, however, was not drug induced; it was chronic and severe mental illness, which had endured despite treatment and, later, despite the cessation of drug use.

97. In what Dr Nielssen described, with the considerable benefit of hindsight, as “a tragic error”, treatment of the accused orally and by depot injection with anti-psychotic medications ceased in March 2017. The accused himself, in what is evidently a manifestation of his complete lack of insight into his condition, never saw himself as requiring medication, and was content to take it no longer. Ms Latta and Mr Robson-Scott, probably misinterpreting what both Dr Martin and Dr Nielssen referred to as the “negative symptoms” of schizophrenia, believed that the medication was responsible for the accused’s apparent lethargy, even laziness, that stopped him from finding employment and bettering his circumstances. They encouraged staff of BEIC to allow the CTO that had been in place to lapse without renewal, and to cease administering medication to the accused. On that point Dr Nielssen observed,

[…the accused] was on a community treatment order, compelling him to accept monthly injections of a potent antipsychotic medication, at quite a high dose. Understandably, given that his prominent symptoms are what are known as negative symptoms, his family, I imagine, and perhaps even his doctors wondered whether that medication was one of the reasons for his negative syndrome, and as I understand it, it was in negotiation with his treating doctor and his family that they agreed not to continue the CTO and allow him to stop his medication (at T35:40).

98. Once that decision had been taken, the accused ceased taking the “potent” medication, and his condition began to deteriorate. Because the accused displayed many of the negative symptoms of his disease, he presented to his family as unmotivated, and unwilling to look for work. In reality, he was simply too sick to do so. As the months passed, the accused’s condition became more acute, as Dr Nielssen explained in his evidence, at T36:10:

[…] it's clear that there's been a relapse of illness. Notwithstanding the presence of negative symptoms whilst receiving treatment, as the treatment's worn off, and it's taken some months to do that, the more acute symptoms have returned.

99. It is reasonable to conclude that those more acute symptoms included, as they had in the past, persecutory delusions centring on his family and mother, and hallucinations including command hallucinations.

100. The accused told Constable Moorehouse that his mother had come into his room when he “was having bad dreams”, and he had “lost control”. Whilst I am satisfied that his subsequent acts in going to the kitchen, selecting a large sized knife, going to his mother’s bedroom, and then forcefully stabbing his mother, directing the blow to the particularly vulnerable area of the chest, were purposeful and deliberate, I am equally satisfied that the accused did not understand the wrongfulness of that conduct.

101. Similarly, whilst I am satisfied that the accused voluntarily struck Mr Robson-Scott and injured him, I have concluded that he did not comprehend the wrongfulness of that act.

102. If the accused did consider his conduct, his thoughts about it are most likely to have been deluded and disorganised. He acted as he did because of the illness he suffered, and under the sway of the mental chaos it caused.

103. It is notable that the accused’s brother, who saw him just minutes after he had killed his mother and assaulted Mr Robson-Scott, did not think he seemed particularly upset. This presentation is consistent with what the medical experts described as a flat or blunted affect, where an individual appears to be almost without emotion, this being a symptom of the accused’s condition. Other witnesses who saw the accused at around this time noticed him because of his odd presentation: one witness referred to him as agitated or angry; another, edgy and nervous.

104. After the accused was arrested, police officers made similar observations of him. When he spoke to Constable Moorehouse in the short recorded conversation from the back of a police truck, the accused was very flat in affect. He seemed almost emotionless, even when acknowledging his earlier statement that he had killed his mother. He looked dishevelled, confused, and somewhat bewildered, as if unable to comprehend his situation.

105. In his interview with D/S Hadley and D/S/C Tyrell the accused had the same passivity, the same emotional flatness. Although, for the most part, the accused answered questions with “no comment”, and he may be perceived as sensibly asserting his rights in that regard, the interview when viewed against the background I have already set out, is further evidence of his psychotic state.

106. Firstly, it is notable that the accused’s frequent answer of “no comment” is one he had employed previously. It is recorded by staff at Manly Hospital as the answer the accused sometimes gave when questioned about his mental state during his admission there, and was apparently employed by him despite the fact that medical staff were trying to help him. It seems to have been part of the guarded presentation which led to the accused being reluctant to give questioners information, perhaps because of delusional beliefs about the process.

107. Secondly, the brief non-committal answers are consistent with the sort of answers given to both Drs Martin and Nielssen, and with the poverty of thought content to which both referred as symptomatic of the accused’s severe schizophrenic illness. Indeed, some of the answers of “no comment” given by the accused seem to have been offered to entirely harmless questions, that could not implicate him in crime, although being questions that the accused, oddly, may not have known the answer to. For example, when asked how long he had lived at his home address, something one would expect him to know and answer, the accused said “no comment”. He then said he was not sure how long he had lived there.

108. One of the few answers of some substance came when the accused was asked if Ms Latta was his mother. The accused said he was not sure. When asked why he was not sure, he said,

‘Cause I, I don’t remember being birthed and I don’t know. Her face changes.

109. Evidence of the accused’s manner and conduct at around the time of the commission of the alleged offences is consistent with his previous presentations when acutely mentally ill.

110. All of the expert evidence before the Court is to the effect that the accused had a severe and disabling form of schizophrenia, manifesting in symptoms that directed his actions. The experts are unanimous in concluding that, whilst the accused may have understood the nature and quality of those actions, his capacity to reason and make moral decisions about the wrongfulness of his conduct was so impaired that he was deprived of it. Whilst it is open to the Court as the tribunal of fact to reject the evidence of the expert witnesses, it could only do so if there was a rational basis for that rejection. There is no rational basis to do so in the circumstances of this case.

111. I have concluded that the defence of mental illness has been established on the balance of probabilities and, accordingly, the only possible verdict on the whole of the evidence is a verdict of not guilty on the ground of mental illness to the charge of murder. The same must apply to the charge that the Court is asked to deal with pursuant to s 167 of the Criminal Procedure Act, that of assault occasioning actual bodily harm.

orders

112. The Court makes the following orders:

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to the charge of murder.

2. Pursuant to the same provision, a special verdict of not guilty by reason of mental illness is returned with respect to the charge of assault occasioning actual bodily harm, that charge being dealt with pursuant to s 167(1A) of the Criminal Procedure Act 1986 (NSW).

3. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Joel Woszatka is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

4. I direct that the Registrar notify the Minister for Health of these orders.

5. I direct that the Registrar notify the Mental Health Review Tribunal of my verdicts and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, and a copy of trial exhibits A28, A59, A65, A82, A89, 1, 2, 3, and 4.

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Decision last updated: 01 November 2018