R v Zeina
[2015] VSC 765
•21 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0100
Between:
| THE QUEEN | |
| and | |
| BAHIJ ZEINA | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 30 March & 21 July 2015 | |
DATE OF JUDGMENT: | 21 July 2015 | |
CASE MAY BE CITED AS: | R v Zeina | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 765 | |
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CRIMINAL LAW – Murder – Accused stabbed acquaintance at least 17 times, mostly in the back, and killed him – Accused acted on delusions when he stabbed deceased – Three psychiatrists opined accused could not reason with moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong – Consent mental impairment hearing – Verdict of not guilty by reason of mental impairment directed – Custodial supervision order – Accused committed to Thomas Embling Hospital – Nominal period of order 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic), ss 20, 21, 24, 26, 27, 28, 41, 42 & 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney QC | Office of Public Prosecutions |
| For the Accused | Ms R. Shann (30 March 2015) Ms A. Beech (21 July 2015) | Lewenberg & Lewenberg |
HIS HONOUR:
Overview
Mr Zeina stabs and kills Mr Cecala
On 19 January 2014, at about 11:02 p.m., Bahij Zeina walked into the front bar of the University Hotel in Carlton. It was closing time. He had with him a knife with a serrated blade of about ten centimetres in length.
Nevio Cecala, who worked as a bar shift supervisor at the hotel, was in the process of cleaning up. Mr Zeina followed Mr Cecala as he walked from the bar into a dishwashing room. In that room, Mr Zeina took his knife and stabbed Mr Cecala repeatedly to the upper body, and mostly in the back. Mr Zeina then fled.
Shortly afterwards, a colleague discovered Mr Cecala doubled over and bleeding but still conscious. He suffered a cardiac arrest but was resuscitated by paramedics and then rushed to the Royal Melbourne Hospital. Sadly, however, Mr Cecala suffered another cardiac arrest and was unable to be revived. He was declared deceased at 11:48 p.m.
At about the moment of Mr Cecala’s death, Mr Zeina was being arrested at Doncaster Police Station. By that time, he had handed himself in and confessed that he had stabbed someone. Later, he was charged with murder. Subsequently, a magistrate committed Mr Zeina for trial in this Court.
Consent mental impairment hearing
On 30 March 2015, the matter came before me as what is sometimes called a consent mental impairment hearing. Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of murder is determined by a jury. However, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic) (“the Act”), if a person is charged with an indictable offence (such as murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.[1]
[1]See s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic).
Mr Tinney QC, who appeared on behalf of the Director of Public Prosecutions (“DPP”), and Ms Shann, who appeared on behalf of Mr Zeina, advised that it was agreed between the parties that the proposed evidence, including the psychiatric evidence, established that Mr Zeina had available to him a defence of mental impairment. This was because the evidence showed that, at the time of the killing, as a result of the effects of his psychiatric illness, Mr Zeina did not know the conduct was wrong – that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[2]
[2]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic).
Having considered the evidence, I accepted the submissions of counsel and found Mr Zeina not guilty of murder by reason of mental impairment. I also declared him liable to supervision under Part 5 of the Act; adjourned the matter to 13 May 2015; and directed that, pending the making of a supervision order, he be remanded in custody in a prison and that the necessary further report and a certificate of available services be prepared.[3]
Final orders
[3]See ss 24, 26, 41 & 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic).
The matter did not proceed in May because the certificate of available services could not be signed as there was, at that time, no bed available at Thomas Embling Hospital.
Ultimately, the matter came back before me on 21 July 2015. By that time, I had received a report from Dr Prashant Pandurangi, a consultant psychiatrist with the Victorian Institute of Forensic Mental Health (“VIFMH”), also known as Forensicare. In Dr Pandurangi’s opinion, Mr Zeina required treatment in a secure hospital setting and that his rehabilitation needs could be met only by a custodial supervision order (“CSO”) rather than a non-custodial supervision order (“NCSO”). I had also received a certificate of available services declaring that a bed was now available at Thomas Embling Hospital.
Mr Tinney tendered reports by Mr Cecala’s family[4] – namely, his partner of nine years Mary (“Teresa”) Franza, his mother Elena Cecala, his brothers Ivo and Odino Cecala and his niece Amanda Cecala. These are moving documents that attest to, among other things, the great sadness and loss the family feels at their loved one’s horrible death. As Mrs Cecala said, for a child to predecease his parents is to reverse the natural order of things.
[4]Pursuant to s 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Consistently with the submissions of the parties, I made the only order that was reasonably open on the evidence – namely, a CSO committing Mr Zeina to the custody of the VIFMH (Thomas Embling Hospital) with a nominal term of 25 years from 19 January 2014, the date of his arrest.[5] I declined to fix a review period for the CSO[6] as there was no evidence supporting the making of such an order.
[5]See ss 26, 27 & 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[6]See s 26(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
On 30 March and 21 July 2015, I gave ex tempore reasons for my decisions but, with the consent of the parties, indicated I would provide more detailed reasons at a later time. These are those reasons.
Summary of evidence
I turn now to a detailed summary of the evidence. This summary is taken largely from the prosecution opening read to the Court and tendered by Mr Tinney, which summary was accepted as accurate by Ms Shann.
Nevio Cecala
Nevio Cecala was born on 30 March 1962. He was therefore aged 51 at the time of his death. He was the eldest child of Vilelmo and Elena Cecala. He had two brothers – Ivo and Odino. Mr Cecala and his brothers were brought up in Melbourne in the Carlton and Broadmeadows areas. Mr Cecala was educated at St Bridget’s Primary School in North Fitzroy and then at the Marist Brothers in East Brunswick and Therry College in Broadmeadows, before completing Year 11 at Geoghegan College in Broadmeadows.
On leaving school, Mr Cecala started an apprenticeship as a fitter and turner before working for seven years or so as a sales representative for a surgical supplies company. He then joined his father in running the Il Piccolo restaurant in Lygon Street, Carlton. The restaurant was sold in the mid‑1990s. From that time, Mr Cecala worked in various hospitality venues in Lygon Street, and ended up working at the University Hotel from 1997 until his death. He was known as a reliable worker at the University Hotel and was promoted to shift manager after a number of years, a position he held until his death.
Mr Cecala was married in the 1990s but returned to the family home after his divorce. He continued to live with his mother in the family home up until his death.
For almost the last ten years of his life, Mr Cecala was in a relationship with Teresa Franza. He had no children of his own but was a father figure to Teresa’s two adult children.
Mr Cecala was described by his long-time friend, Stephen McQuillan, in this way:
I would describe Nevio as a guy who never grew up. He had a heart of gold and he would go out of his way to help anyone out. He was always happy and took nothing seriously. He was always ready to have a joke. Nevio was like this when we were kids and was always the same.
Bahij Zeina
Bahij Zeina was born on 1 June 1983. He was therefore aged 30 at the time he killed Mr Cecala, and is now 32. He is the eldest of four siblings. He was born in Lebanon and moved to Australia with his family when he was a toddler. The family lived in a number of suburbs before settling in Templestowe in the late-1990s. Mr Zeina lived with his family in Templestowe until the time of the killing.
Mr Zeina was educated at Ivanhoe Grammar School before commencing a computer science degree at Latrobe University. He did not complete the degree.
He entered the work force as an analyst programmer at Australia Electricity in 2005. He worked as a software engineer at Infor Global Solutions between 2006 and 2008. He took up a position as a cook and barista at the Lygon Street Café from 2009 to 2013. The café was owned by his brother Gilbert. The business was sold in 2013 and Mr Zeina was left unemployed. He looked for further employment and started receiving a New Start Allowance in May 2013. He was unsuccessful in obtaining work up until the time of the offending.
A drug connection between Mr Cecala and Mr Zeina
Some time prior to 2012, Mr Cecala became involved in the use of “ice” (i.e. methamphetamine), and also in trafficking small quantities of the drug.
Mr Zeina also had a history of drug use. On his own account given to the police, he had until a few years before the events in question been a regular user of ice and “speed”. His use had become more occasional in recent times.
According to Mr Zeina, he met Mr Cecala when both of them were working in different venues in Lygon Street. Mr Zeina became aware that Mr Cecala sold drugs. He said that he purchased methamphetamine from Mr Cecala on a number of occasions in quantities of one “point” (i.e. 0.1 grams), or sometimes more. He said that there had been a couple of occasions on which Mr Cecala had given him drugs which he (Mr Zeina) had considered to be “potentially poisoned or toxic”. On a third occasion, he claimed Mr Cecala had again given him some defective ice that had affected him adversely for six to eight months. He had returned the drug to Mr Cecala and been given a replacement bag.
Months later, two or three days before the incident in question, he had approached Mr Cecala and confronted him about the supposedly defective ice which had poisoned him. He asked Mr Cecala whether someone had given him something to give him (Mr Zeina) that he (Mr Cecala) knew was not right. Mr Cecala denied this repeatedly. Mr Zeina said he was certain Mr Cecala was lying about the matter, which made him angry.
Circumstances of the attack
Mr Cecala worked the evening shift at the University Hotel on Sunday 19 January 2014 commencing at 5:00 p.m. He was the bar shift supervisor in the bar on the ground floor. At 11:02 p.m., Mr Cecala, who by then had commenced to close the bar, was alone in the ground floor front bar area of the hotel. Two other employees were upstairs and one was in the bottle shop area next to the bar.
That evening, Mr Zeina had been at his home address in Templestowe. At some point, he left that address in his mother’s silver Toyota Camry sedan. He drove to the vicinity of the University Hotel and parked directly outside the premises in Lygon Street at 11:02 p.m. He was alone.
Mr Zeina entered the front bar of the hotel through the front sliding doors which had been closed but not locked. He was in the possession of a small folding, partially serrated, single-edge knife with a blade of approximately ten centimetres in length. According to Mr Zeina, he had purchased this knife on the Internet some time earlier.
Mr Cecala walked from his work station behind the bar to a small dishwashing utility room, with a tray of dishes and glasses to be washed. At the same time, Mr Zeina walked through the front bar area and followed Mr Cecala into the dishwashing room. The CCTV footage, which had recorded Mr Zeina arriving at the hotel and his presence in the front bar area, but which did not cover the dishwashing room, showed that he was inside that small room between 11:03:07 p.m. and 11:03:40 p.m., a period of 33 seconds.
During that brief period, Mr Zeina confronted Mr Cecala and used the knife to stab him repeatedly to the upper body, principally in the back. The subsequent autopsy report revealed a total of at least 17 separate stab wounds and other incised injuries to Mr Cecala.
During the struggle, Mr Zeina’s T‑shirt was torn down the front and he sustained minor abrasions and cuts to his arms and hands.
After the attack, Mr Zeina ran through the front bar area and exited through the door into Lygon Street. He ran straight to his mother’s car and drove south in Lygon Street before turning left into Grattan Street.
Aftermath of the attack
Mr Cecala’s colleague, Jackson Rouse, who had been using the upstairs bathroom, heard yelling. He arrived downstairs and saw a male, who must have been Mr Zeina, facing the bar and yelling towards Mr Cecala. At this time, Mr Cecala was doubled over in the back corner near the entrance to the kitchen. The male then ran from the hotel. Mr Rouse ran to assist Mr Cecala, who by now was standing but doubled over, leaning on the counter. There was a great deal of blood on the floor and coming from Mr Cecala’s torso. Mr Rouse ran for assistance and then asked another person to call for an ambulance.
Police and then MICA paramedics arrived promptly at 11:09 p.m. and 11:13 p.m. respectively. Treatment was provided to Mr Cecala, who was conscious but badly injured. Mr Cecala went into a cardiac arrest but was resuscitated and intubated. He was taken by ambulance to the Royal Melbourne Hospital and handed into the care of the staff there shortly after 11:30 p.m.
On arrival at the hospital, Mr Cecala suffered another cardiac arrest. Despite all further efforts at resuscitation, no signs of life were generated in the Emergency Department. Death was declared at 11:48 p.m.
The movements and conduct of Mr Zeina following the attack
Having turned the car into Grattan Street, Mr Zeina stopped and disposed of his torn T‑shirt and the knife in a rubbish bin. Before doing so, he wrapped the knife in a disposable kitchen glove which had been in the car. He then drove to his home address, arriving there between 11:30 p.m. and 11:45 p.m. He immediately went to his brother Gilbert’s bedroom and woke him. He said, “Wake yourself up, I need to tell you something. I’ve done something bad. I need you to take me to the police station.” Gilbert asked, “What’s happened?” to which the reply was, “I’ve stabbed somebody.”
Gilbert then asked their sister to drive them to the police station, which she did. On the way, Mr Zeina sat in the back seat. When asked by his brother what had happened, he said:
I had a 30-minute conversation with this person and in that 30 minutes he lied to me three times. I told him to stop lying or I would cut him, and then he lied another two times, and I knew he was lying and I just wanted him to own up to what he was doing, and if he didn’t know the full effects of what he was doing then to own up to the cause of it.
Also during the trip to the police station, Mr Zeina used his brother’s phone to call Triple-0 and speak to the operator. In the call, Mr Zeina described himself as “the offender” and said an ambulance was needed at the University Hotel where a person had been stabbed in the back more than once.
Mr Zeina and his siblings attended in the foyer of the police station at 11:46 p.m. He said to Senior Constable Lane at the counter, “I’ve just stabbed someone, I’m here to hand myself in.” He was arrested immediately and taken into custody.
The initial police investigation on 20 January 2014
Police examined the scene of the stabbing, which was heavily bloodstained.
In Mr Zeina’s bedroom, police found an empty box for the knife used in the stabbing and two yellow Post‑It Notes with handwriting on them stuck to a computer monitor on the desk. One note read:
Shit cunts are imposing falsities to keep one unresponsive. Nev will die tonight. No sentiment or consideration o (sic) truth or relevance.
The other note read:
Nev the dog was given a choice. He chose death. He poisoned me and failed to admit it. The invader dogs opportune peaceful and reasonable incl[i]nation to try docile one while manipulating + constraining and abusing.
Mr Zeina’s sister Jilnar had a more detailed memory of her brother’s account on the way to the police station. Amongst other things, she heard him say that the person had given him something that “screwed with his system for six to eight months” and that it was given to him intentionally to poison him. He had had a conversation with the man a month ago and the man had not admitted what he had done. He had gone back to see him that night and “the guy was still screwing him around”. He had then hurt him by cutting him.
Police interviews with Mr Zeina
Mr Zeina was interviewed by Detective Senior Constable Bruce Rowe from Manningham Crime Investigation Unit at Doncaster Police Station commencing at 12:27 a.m. Some of his responses have been referred to earlier. Shortly after being informed he was to be interviewed in relation to the offence of murder, Mr Zeina said he had a question: “This murder business, I’m not sure if I’m comfortable with that, because that was not really my intent, so will I be – will I be”. He went on to say that on the occasion of his discussion with Mr Cecala two or three days before the attack he had been intent on violence but “had to consider the possibility that maybe he was not aware of exactly what the effect would be of what he was giving me, so that’s why I had that chat with him instead”. As to what happened on the night of the attack, Mr Zeina said:
Okay, I went there. I wanted to hurt him. I didn’t want to seriously hurt him because he did lie to me and I told him “don’t lie to me about this because this is a serious matter”. My system was messed about seriously for months as a result of that and I gave him the simple choice to be honest with me, I gave him a simple out of this because I was going to pursue the person who did it. I went there a bit angry and it got a bit worse than intended and I stabbed him a couple of times and he started fighting back and it just escalated. It escalated and I ended up stabbing him a few more times. Like after he started grappling with me, and I said to him at one point like, “I don’t really want to hurt you, stop and I’ll let it go”, and I was just going to walk out but he just kept on grappling and attacking and he got stabbed a few more times and then I left.
He told the police how he had disposed of the knife and his ripped shirt in a bin in Carlton somewhere and had then driven to his home and attended the police station with his brother and sister. He said of Mr Cecala that he had been “stabbed multiple times, mostly in the back, one or two in the chest”. He went to say, “And I didn’t really mean it to escalate that much, just got a bit out of hand. It was a thing I really couldn’t forgive because he poisoned my system and he lied about it.”
When police were in the process of informing Mr Zeina that they would seek a DNA sample from him, he said, “Is this actually necessary, because I’ve admitted my involvement? I’ve come here and told you what’s happened.” He agreed to provide a forensic sample and then agreed to go on a drive with the police to show them what had happened.
At about 5:10 a.m., Mr Zeina was taken by police car to the Carlton area. During the drive, Mr Zeina identified the route he had taken to Carlton, where he had parked his car, which was right in front of the University Hotel, the route by which he had departed the hotel after the stabbing and the bin in which he had disposed of the knife and shirt, which were found in a subsequent search.
In his final interview, which was conducted at the St Kilda Road Police Complex, Mr Zeina exercised his right to make no comment to the majority of questions asked, consented to giving his fingerprints and declined to take part in an identification parade, saying, “I don’t see the point in this case, especially since I’ve come here admitting what I’ve done.”
Following the interview, Mr Zeina was charged with murder and remanded in custody.
Autopsy
An autopsy on the body of Mr Cecala was carried out by Dr Heinrich Bouwer on 21 January 2014 at the Coronial Services Centre in Southbank. The examination revealed the cause of death to be multiple stab wounds to the chest and back, compromising heart and lung function and causing blood loss into the chest cavity. There were 13 stab wounds to the back, two to the left arm, one to the neck and one to the chest, as well as other superficial incised wounds. The stab wound to the chest perforated the left lung, right ventricle of the heart and the pulmonary valve, and penetrated the pulmonary trunk. The wound was at least nine centimetres deep. There were bilateral haemopneumothoraces. There were sharp force injuries to the left kidney, the right kidney, the lungs and ribs.
The pathologist determined that the degree of force involved in the infliction of the injuries was appropriately considered severe on a scale of mild-moderate-severe.
Psychiatric evidence
After his arrest, Mr Zeina, who had had no formal psychiatric history, was placed in the Acute Assessment Unit of the Melbourne Assessment Prison. He was placed on the antipsychotic medication Abilify and then Zyprexa.
I received in evidence psychiatric reports from Dr Lester Walton, Dr Katinka Morton and Dr Yvonne Skinner. I also heard viva voce evidence from Dr Morton.
Dr Walton provided two reports. He examined Mr Zeina at the Metropolitan Remand Centre on 4 June 2014 and later at Melbourne Assessment Prison on 10 September 2014. In his first report, Dr Walton said this:[7]
Mr Zeina’s conviction that he had been poisoned by the victim and his absolute surety that he had accurately discerned that the victim was lying to him on the day in question have all the characteristics of deluded ideas. Mr Zeina also gives a convincing history of parallel auditory hallucinations and at least a degree of distortion of visual perception. Thus, in my opinion, his determination to confront the victim, which included a likelihood of punishing him, was the direct product of his then psychosis.
…
Once this man’s seemingly fairly intense hallucinosis is also taken into account, on what I would describe as a fairly fine balance of probabilities on the basis of the information I have to hand thus far, I believe that Mr Zeina, precisely at the time of the stabbing, was not able to reason with a moderate sense of composure as to the wrongfulness of that act.
[7]Dr Walton’s report of 10 June 2014 (although it mistakenly bears the date 10 May 2014) at p 5.
In his second report, Dr Walton noted that since his previous report he had been provided with additional documentation which “consisted of the accused’s voluminous handwritten jottings and some typed diarised entries, well over 500 items in all, as well as prison medical record”.[8] In reviewing the prison medical records, Dr Walton noted that Mr Zeina had been assessed by Associate Professor Carroll as having “[r]esidual psychiatric symptoms in the form of mild thought blocking and delusional beliefs relating to drug deals in the past, [but with] not enough current active psychopathology, nor active risk concerns, to warrant coercive psychiatric treatment”; and that a review in June had resulted in the diagnosis of drug‑induced psychosis leading to the stabbing.[9] He went on to observe that “it would seem to be the situation that Mr Zeina was clearly regarded as psychotic but no precise diagnosis was made”.[10] Dr Walton concluded as follows:[11]
It does seem Mr Zeina has been consistent in his account that he had not availed himself of illicit drugs in the month preceding the emergence of his psychosis and the offending and, if that is accepted as fact, then that effectively precludes a diagnosis of drug‑induced psychosis simpliciter. Thus I am satisfied currently that the appropriate diagnosis is that of schizophrenia, possibly triggered and aggravated by the previous drug use.
While this man certainly has the substrate for a defence of mental impairment in that he seems to be suffering from the mental illness which is the most common cause of the phenomenon, there is at least some uncertainty as to whether or not this man’s acute psychotic episode did result in his being deprived of moral capacity. I have carefully considered that question again and I remain of the view that, on the balance of probabilities, Mr Zeina was not able to reason with a moderate degree of sense and composure at the material time. That remains my view following having reviewed the additional materials.
[8]Dr Walton’s report of 11 September 2014 at p 1.
[9]Dr Walton’s report of 11 September 2014 at p 2.
[10]Dr Walton’s report of 11 September 2014 at p 2.
[11]Dr Walton’s report of 11 September 2014 at p 4.
Prior to writing her report, Dr Morton had access to the two reports of Dr Walton, and she spent three hours with Mr Zeina at the Melbourne Remand Centre on 22 July 2014. Having set out the history of the matter and the symptoms complained of and seemingly suffered for some time, Dr Morton remarked that Mr Zeina had not been diagnosed with a mental illness prior to being remanded in custody and that the delay in presentation with mental health symptoms until after the stabbing was “remarkable”. She went on to conclude, however, that Mr Zeina was suffering from a mental impairment at the time of the killing and that the symptoms met the criteria for a diagnosis of schizophrenia. In particular, she opined as follows:[12]
As to whether Mr Zeina did not know that the conduct was wrong, in terms of not being able to reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong, I do not believe that Mr Zeina was capable. In particular, I believe that his conduct was seen by him as necessary to protect his own life and the well‑being of others. I believe Mr Zeina was acting directly in response to a range of psychotic symptoms, including auditory hallucinations, delusions of thought control, and passivity phenomena. These psychotic symptoms were all consistent with his persecutory delusional belief system which dominated his beliefs about those around him. …
… I am therefore satisfied that Mr Zeina does have a mental impairment defence available to him.
[12]Dr Morton’s report of 1 October 2014 at p 15.
Mr Tinney explained that, as a result of some of the misgivings expressed by Dr Walton and some of the observations made by Dr Morton, it was considered by the prosecution to be necessary to have another opinion. Thus the report of Dr Yvonne Skinner of 3 December 2014. Dr Skinner examined Mr Zeina on 13 November 2014 at the Metropolitan Assessment Prison. She had the reports of Dr Walton and Dr Morton. She indicated that Mr Zeina provided an account to her of psychotic experiences, hallucinations and delusions commencing about five years previously. In summary, Dr Skinner concluded as follows:[13]
[13]Dr Skinner’s report of 3 December 2014 at p 10.
After my examination of Mr Zeina, and considering the extensive documentation, DVDs and reports of Dr Walton and Dr Morton, it is my opinion that Mr Zeina does have a defence of mental impairment. He gives a history that he did not abuse drugs for about eight months prior to the alleged offences except for a few occasions. If this is correct he would not have been suffering from a drug‑induced psychosis, although the psychosis could have been precipitated initially by drug use. Mr Zeina has now been in hospital for 10 months, presumably drug‑free, and continues to describe the same delusional beliefs and hallucinations.
…
I consider that, at the time of committing the offences, Mr Zeina knew the quality and nature of the acts he was performing. He knew that he intended to obtain information from the victim, and he intended to threaten and intimidate him by carrying a knife.
I do not consider that he knew the conduct was wrong in a moral sense, as he believed that the victim was providing Mr Zeina and others with contaminated drugs and was concealing information about the sources of contamination and persons who were persecuting Mr Zeina. He was experiencing auditory hallucinations and delusions of persecution and being controlled, was acting on those delusional beliefs, and thus was not able to act with a moderate degree of sense and composure.
Dr Skinner went on to rule out drug‑induced psychosis and concluded that Mr Zeina was suffering from a psychotic mental illness, probably paranoid schizophrenia, and that he has available a defence of mental impairment.[14]
[14]Dr Skinner’s report of 3 December 2014 at pp 10-11.
I also heard viva voce evidence from Dr Morton. She adhered to the opinion expressed in her report. Dr Morton explained that Mr Zeina said that, at the time of the stabbing, he had believed that Mr Cecala was an agent of an unknown third party who was trying to harm him, so that, in order to save his own life and to protect the well-being of others, he had to confront Mr Cecala. He also described psychotic experiences in which he believed his emotions were being substituted, and his body was being controlled, by “invaders”. He believed the invaders had compelled him to harm Mr Cecala. Dr Morton did not find it surprising that he refrained from telling the police about these matters, since he may have believed they were part of the “conspiracy” against him.
Dr Morton also referred to an earlier documented attendance by Mr Zeina on a general practitioner, in 2013, when he reported having something under his skin and a self-inflicted wound resulting from his attempt to remove it. Mr Zeina also reported to Dr Morton that he had once reported to a doctor that he believed there was a circuit in his cheek, which he had tried to remove with a knife and tweezers.[15]
[15]Transcript of hearing (30 March 2015) at pp 29-30 & 35-36.
Submissions and conclusions on mental impairment
Mr Tinney and Ms Shann both submitted that the evidence supporting the defence of mental impairment was, in substance, all one way. I agreed.
I accepted the opinions of Dr Walton, Dr Morton and Dr Skinner as expressed in their reports and Dr Morton’s viva voce evidence. Given the history given by Mr Zeina, which was not disputed and was corroborated by the surrounding circumstances, it is plain that, at the time of the stabbing, as a result of his psychiatric illness, he was experiencing auditory hallucinations and delusions of persecution and being controlled, was acting on those delusional beliefs and thus did not know the conduct was wrong – that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
Accordingly, in my view, it was inevitable that Mr Zeina had to be found not guilty of murder by reason of mental impairment.
Evidence, submissions and conclusions in respect of final orders
Evidence
As I indicated earlier, Dr Pandurangi provided a report pursuant to the Court’s direction under s 41 of the Act.
In his opinion, the issues specific to Mr Zeina’s behavior giving rise to the killing require “a longitudinal assessment, by a multidisciplinary team, in an evolving therapeutic alliance with him”. This type of treatment, in Dr Pandurangi’s opinion, “will need to be carried out in a secure hospital setting [such as Thomas Embling Hospital], with a concentrated focus on recovery and rehabilitation”. He will also require “a long-term graduated rehabilitation programme towards his vocational, educational and recreational needs”. In Dr Pandurangi’s view, “such comprehensive rehabilitation needs can only be effectively met by way of a [CSO and could not be] achieved, in the community, by way of [an NCSO]”.[16]
[16]Dr Pandurangi’s report of 11 May 2015 at p 7.
While it took some time coming, happily, in conformity with that opinion, the certificate of available services indicated that a bed was available for Mr Zeina at Thomas Embling Hospital.
Submissions
Again, both Mr Tinney and Ms Beech, who appeared for Mr Zeina on this occasion, made submissions consistent with Dr Pandurangi’s opinion. In particular, both submitted that a CSO was the only appropriate order. There was simply no basis for imposing an NCSO.
Conclusions
I accepted that opinion and those submissions. In my view, the only appropriate order to be made in the circumstances was a CSO committing Mr Zeina to the custody of the VIFMH (Thomas Embling Hospital). As required by s 28 of the Act, the nominal term of the order must be for 25 years.
No fixed review period
Finally, Ms Beech submitted that, pursuant to the power in s 27(2) of the Act, I should direct that the matter be brought back for review within, say, five years. In her submission, the fixing of such a review date would give Mr Zeina a goal to work towards, which in turn would aid in his rehabilitation.
Mr Tinney submitted that there was no evidence suggesting the need for a fixed review period.
I accepted Mr Tinney’s submission. In my view, ordinarily, one might expect evidence suggesting the need for a fixed period of review before making such an order. There was nothing in the report of Dr Pandurangi, or elsewhere in the evidence, suggesting the need for a fixed period of review.
A question arose as to whether or not the reports from Mr Cecala’s family filed under s 42 of the Act, and to which I referred earlier, are material to which I should have regard in deciding whether or not to fix a review period and, if so, the length of any such period. The tenor of those reports is that Mr Cecala’s family would be opposed to any fixed period of review. However, I did not need to determine that issue, because I was satisfied that there was no sufficient basis for fixing a review period in the other evidence in any event.
Accordingly, I declined to fix a period for review.
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