Re Cooke
[2009] VSC 263
•23 June 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1703 of 2008
IN THE MATTER of an application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
TRAVIS ANTHONY COOKE
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JUDGE: | KING J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2009 | |
DATE OF JUDGMENT: | 23June 2009 | |
CASE MAY BE CITED AS: | In the matter of Travis Anthony Cooke | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 263 | |
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Criminal law – one count of murder – mental impairment – s 21(4) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – trial by judge alone – direct a verdict of not guilty by reason of mental impairment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Grant | Office of Public Prosecution |
| For the Accused | Mr J. Kelly | Leanne Warren & Associates |
HER HONOUR:
On 23 June 2009 Travis Anthony Cooke pleaded not guilty to the murder of Rebecca Lazarus on 4 July 2007 at Boronia. The matter proceeded before me as a hearing pursuant to s 21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). This provision permits the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time that the conduct constituting the offence occurred.
Pursuant to s 21(4) of the Act a prerequisite to the judge hearing such a case without a jury is the agreement of the prosecution and defence that the evidence proposed to be led establishes or is capable of establishing the defence of mental impairment.
Mental impairment is defined in s 20(1) of the Act in these terms:
20 Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a)he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
If the trial judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment, as defined in s 20(1), at the relevant time, a verdict of not guilty because of mental impairment may be recorded. If the trial judge is not so satisfied, an order that the charge be heard by a jury must be made by the court.
The facts surrounding this incident are contained in the Crown opening and adopted by the informant, Detective Sergeant Wayne Frederick Woltsche, in evidence before me. The Crown opening is contained in Exhibit 3 in the hearing.
The accused man, Travis Anthony Cooke, was born on 7 August 1975 and was 31 years of age at the time of the offence. As a child he lived with his parents in Footscray attending Mount Evelyn Secondary College and completing Year 10. After leaving school he completed a traineeship at a hardware store and subsequently worked in a number of jobs over the years. In about 1997 or 1998 he was diagnosed with schizophrenia and ultimately hospitalised for the first time in 1999. His condition deteriorated during his 20s and he was finally unable to work on a full-time basis. He was placed on a community treatment order and subject to supervision by a case manager. Over the years, he had been hospitalised on numerous occasions and was cared for by the Chandler House Community Centre in Ferntree Gully. He was on prescribed medication over that period of time in an attempt to deal with the schizophrenia from which he suffered. In February of 2006 the accused was placed at the Hazelwood Supported Residential Service House at No. 40 Central Avenue, Boronia in room 7.
The deceased young woman in this case, Rebecca Lazarus, was born on 15 June 1982 and was 25 years of age at the time she was killed. She suffered an acquired brain injury as a result of being delivered by an emergency caesarean section. Her mother suffered from cerebral palsy and she was cared for by her father until his death when she was five years of age. Ms Lazarus’ mother was unable to care for her and she was placed in foster care. A number of foster families were involved in her care before she was placed into a number of different government institutions. She completed her secondary education at Rossbourne School in Power Street, Hawthorn. That school was a special education school catering for learning difficulties. She obtained a number of low skilled jobs through Anglicare and on 1 April 2002 Ms Lazarus moved into Hazelwood Supported Residential Services and she lived in room number 14.
Present in court were two of her former foster fathers with whom she clearly had a loving and caring relationship and also her brother who was older than her but had only come to know her of relatively recent time. All three of those persons presented material to the court that demonstrated she was a much loved, much cared about daughter and sister. A good person, a decent member of our community and one that is sadly missed.
Mr Cooke was on prescribed medication during his time at Hazelwood Supported Accommodation Centre. He was prescribed Seroquel of 100 mlg at breakfast time and two 300 mlg tablets at supper-time.
In early 2006 the accused commenced a relationship with Ms Lazarus, although they both continued to reside in separate rooms. On the day in question, to a large degree, nothing out of the ordinary appeared to happen. Ms Lazarus at about 10:00 in the morning arranged to go to Zagame’s Hotel in Boronia with another resident and they left at approximately 10:30 to play the poker machines. Ms Lazarus had a stubby of beer whilst there and they began to speak to another patron by the name of Mr Mathew Bell; Ms Lazarus and Mr Bell were getting on well and they were playing poker machines and talking to each other. Mr Bell purchased some five or six bourbon and cokes for Ms Lazarus over the period that they were at Zagame’s.
At approximately 11:00 that morning Ms Lazarus phoned Hazelwood and asked the carers to put aside her lunch and that of the person who had accompanied her. About 12:45 pm Mr Penny who had accompanied her to Zagame’s and was returning to the hostel was asked to tell the accused man that Ms Lazarus was at the hotel and ask him to join her there. Mr Penny passed that information on at about 1:00 pm. At that stage the accused was at home and still in bed.
Between 2:14 and 2:18 pm on that day, Ms Lazarus who was still at the hotel attempted to speak to the accused man on Mr Bell’s mobile phone. She spoke to both carers and asked that a message be passed on to the accused asking him to come to Zagame’s – which he did, arriving about 2:56 pm. He was wearing jeans and a dark coloured hooded jacket. He appeared to speak to Ms Lazarus and Mr Bell and around 3:03 pm the accused and Ms Lazarus left the hotel and Mr Bell remained. Shortly after this, one of the carers, Mr Sena Dhaiumasena, observed Ms Lazarus and the accused man walking through the Boronia carpark in the shopping centre. Ms Lazarus greeted him and Mr Cooke ignored him. At 3:11 pm the accused and Ms Lazarus were seen on video footage entering the Kmart store in Boronia and left about one minute later.
The next observation of the accused and Ms Lazarus was at 3:40 pm when they were walking along Henry Avenue towards Central Avenue in Boronia. They turned right into Central Avenue – Ms Lazarus walking ahead of the accused. The accused then walked faster, caught up with her and then began to walk in front of her.
The next observation is a short time later. Ms Lazarus and the accused were seen in the front yard of No. 2 Central Avenue, Ms Lazarus was lying on the ground and she was heard to moan loudly, the accused was leaning over her with his hands on her chest. After a few seconds the accused stood up and walked down the driveway to Central Avenue. He then walked away towards Hazelwood Supported Accommodation also in Central Avenue.
After a short time a neighbour walked across, found Ms Lazarus was covered in blood, called the police and ambulance and waited. At approximately 3:46 police members attended and observed Ms Lazarus who was rolling from side to side and moaning in pain. At that time the police also saw a black handled steak knife on the ground near where she was lying, which had blood on it. Upon lifting Ms Lazarus’ top they observed she had a number of stab wounds to her stomach and chest area.
The police spoke to Ms Lazarus and she told them that her boyfriend had inflicted her injuries. Mr Cooke was Ms Lazarus’ boyfriend at that time. She told the police she believed she was dying. She was taken to hospital but was pronounced deceased at 4:50 pm.
At 4:40 the accused was arrested. He was walking along Katherine Street, Boronia opposite 40 Central Avenue. During a conversation with the police he admitted that he had disposed of the clothing he had been wearing earlier by dumping it in the back shed and he was subsequently taken to the Knox Police Station. The clothing was recovered, there was blood stains on the jeans and dark jacket and that blood matched Ms Lazarus’. The black handled steak knife had clearly been taken from Kmart whilst Mr Cooke and Ms Lazarus were there earlier in the day.
Ms Lazarus died from a number of stab wounds to the chest, abdomen and back area.
The question that arises for my determination was what was the accused’s mental state at the time that he killed Rebecca Lazarus.
His treating psychiatrist since being transferred to Thomas Embling Hospital on 9 August 2007 until he ceased direct involvement with Mr Cooke in February 2008 was Dr Mark Ryan, who a consultant psychiatrist at the Victorian Institute of Forensic Mental Health in Fairfield. He gave evidence before me and that evidence was in accord with three reports that were tendered. There were two reports also from Dr Lester Walton an experienced forensic psychiatrist who prepared his reports at the request of the solicitors for the accused. The reports from Dr Ryan were dated 26 November 2007, 14 July 2008 and a report of 23 January 2009.
Dr Walton in fact saw Mr Cooke on 13 July 2007, some nine days after this killing took place, whilst he was still in Melbourne Assessment Prison. The medication that Mr Cooke was on was maintained during his time in custody prior to his transfer to Thomas Embling. Both psychiatrists gave evidence before me on the 27 June that the accused man was now fit to stand his trial. Prior to that, both psychiatrists had been of the view that he had been unfit to stand his trial for a period well in excess of 18 months. It was only in recent times that the combination of medication and stability, in terms of his placement, have had any impact upon his mental health, with there being improvement sufficient to enable him to be fit to plead. Further, they both agreed that Mr Cooke was suffering from a mental illness, being schizophrenia, and had been suffering from schizophrenia for some 10 years prior to this killing having occurred. That his schizophrenia was somewhat treatment resistant and that he was suffering from the classical ranges of schizophrenic problems at the time of this incident, including paranoid thoughts, disordered thoughts, delusional hallucinations and disorganised communication as well as thoughts.
Dr Ryan went through Mr Cooke’s history as he had obtained it from Eastern Health, the mental health service that centred around the Maroondah Hospital that had been providing assistance to Mr Cooke in the previous eight years. He described him as having a 10 year history of severe psychotic illness. He described schizophrenia, and more particularly the type suffered by Mr Cooke, as a severe form of mental illness, characterised by delusional ideas, hallucinations and disorganised communications. He further described him as having the full range of symptoms. He had a wide range of delusional ideas both persecutory and other types of delusions as well. He experienced auditory hallucinations and at different times was very disorganised in his thinking and communication. The nature of the hallucinations were things such as hearing voices and messages from space, often of a threatening nature, voices which suggested his life was in danger, other auditory hallucinations of a command nature telling him to kill and a belief that he was Satan and a belief that he was God, being just an example of his problems. Dr. Ryan was asked this question at page 37 of the transcript of the hearing:
Q.Throughout the period that he had contact with Eastern Health, that is from 1999 to 2007, was it your opinion that it was difficult to discern any period during that time in which Mr Cooke was not actively psychotic?
A.That is the case from the notes that were available to me. There were brief periods were he worked but the notes don’t ever give an indication that he was completely symptom free at any time.
He described him on arrival at Thomas Embling as being quite unwell, giving a disordered account of what schizophrenia was, he was incoherent, his answers was not in any way responsive to what he was being asked. It is only of recent time that he accepts that Rebecca Lazarus is even deceased. In relation to her death, there was no coherent response but he believed or he spoke about her at stages having been behind plans to have him killed and that she was torturing him during the night, during his sleep as well as others including his father. All of which were part of the features of his disordered form of thought.
Dr Walton confirmed that that was exactly how he found Mr Cooke on his assessment of him on 13 July 2007. He said he could understand only about 50% of the words that were being spoken, that the thought processes were entirely delusional. He was clearly psychotic and florid at that stage.
Each of the psychiatrists accepted that clearly the accused man knew the nature and quality of the conduct but neither believed that he knew that the conduct was wrong in the sense defined by s 20(1) of the Act, that is, that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
Each of the psychiatrists were not in a position to provide any optimistic prognosis for Mr Cooke. He has over the last 12 years worsened in his condition and it has only been the alteration of his medication to the injectable Zuclopenthixol that has had some minor positive effect or, as described by the doctor, some amelioration of the symptoms. He is currently on Clozapine which Dr Ryan described as the gold standard for treatment resistant schizophrenia as he stated at page 47:
Thus far on the medications used so far he’s proved to be treatment resistant with residual symptoms. It’s encouraging that he has made some improvement on the injectable medication but, as I mentioned, its not an entirely complete improvement there are still ongoing issues. Importantly, he has recommenced a second trial of Clozapine. It is the gold standard of treatment for those with a treatment resistant illness and I would hope that he remains on that medication and it proves effective.
The accused had previously been involved in some illicit drug usage, including cannabis, amphetamines and heroin, but in the two years prior to his killing of Rebecca Lazarus he had abstained from any illicit drug use so there was no real issue about a drug induced psychosis. It is clear, from the material that he has remained in this psychotic state with the best of treatment for almost a further two years, which would negative any concept of a drug induced psychosis..
When asked about the accused mans prognosis, Dr Walton said at page 51:
Q.But in relation to understanding of the, I suppose, the duration of his condition and the severity of the symptoms that he’s experiencing, are you able to give any opinion about the likely future for Mr Cooke and any prognosis?
A.That is actually a difficult question. If you’d asked me that a few months ago, I would have answered with some certainty and confidence but the history, to that point was one, really of steady deterioration over 12 years or so, and that the outlook would have been very gloomy indeed, and the probability is that he would have been permanently hospitalised. Now as I said in relation to the fitness issue yesterday, it was very much to my surprise to learn that his condition had improved in the last few months, and that’s encouraging, but really, realistically, he’s going to be left with serious psychiatric disability indefinitely, but it is encouraging that he has improved to some extent, which might, at least, hold out a glimmer of hope that he might be able to return to the community at some stage.
Her Honour:
Q.But you’re not overly optimistic about that?
A.It’s far from certain your Honour, and wouldn’t happen for a lengthy period of time.
As indicated, the prognosis for Mr Cooke is such that he will require ongoing treatment for a long period of time and his detention in the Thomas Embling Hospital will be necessary. I am therefore satisfied that the evidence establishes that the defence of mental impairment has been made out and direct that a verdict of not guilty because of mental impairment be recorded. That finding is pursuant to s 21(4)(a) of the Act. The ground of mental impairment is that, pursuant to s 20(1)(b) of the Act, Mr Cooke at the time he killed Ms Lazarus, did not know that 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.
I have been provided with a certificate pursuant to s 47 of the Act, the essential parts of the certificate make it clear that there is a position available for him in Thomas Embling Hospital at Yarra Bend Road, Fairfield. He is a patient in the Atherton Unit and there are facilities and resources necessary to provide and continue in-patient treatment and services.
It next follows that I declare that Mr Cooke is liable for supervision under Part 5 of the Act. I make a supervision order committing Mr Cooke into custody in the Thomas Embling Hospital. I fix the nominal period of the order as 25 years. I direct that the period is to commence from the date of his initial incarceration, 4 July 2007.
I further make an order for retention of the DNA sample pursuant to s 464ZFB1(b).
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