The Queen v Kosowicz - [2005] NSWSC 234

No judgment structure available for this case.

CITATION:
The Queen v Kosowicz [2005] NSWSC 234
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/03/05

JUDGMENT DATE :

24 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Patten AJ

DECISION:
Upon each count on the indictment a special verdict of Not Guilty by reason of mental illness.; Order that the accused Timothy Edward Kosowicz be detained in strict custody at Long Bay Prison Hospital or such other place as the appropriate authorities may determine and that he otherwise be dealt with according to law.

LEGISLATION CITED:
Crimes Act 1900
Criminal Procedure Act 1986
Mental Health Act 1990
Mental Health (Criminal Procedure) Act 1990

CASES CITED:
M'Naghten's case (1853) ER 718
The King v Porter (1936) 55 CLR 182
Sodeman v The King (1936) 55 CLR 192
Taylor v R 22 ALR 599

PARTIES:
The Queen
Defendant: Timothy Edward Kosowicz

FILE NUMBER(S):
SC 70027/04

COUNSEL:
Crown Prosecutor: Mr P Lynch
Defendant: Mr P Zahra SC and Mr N Lang

SOLICITORS:
Solicitor for DPP (NSW)
Defendant - Legal Aid Commission- Mr Nathan Steel

LOWER COURT JURISDICTION:

LOWER COURT JUDICIAL OFFICER :
Kevin Flack

- 34 -

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

Patten AJ

24 March 2005

No: 70027 of 2004

THE QUEEN v TIMOTHY EDWARD KOSOWICZ

JUDGMENT:

INTRODUCTION:

1 His Honour: On March 10, the accused Timothy Edward Kosowicz pleaded not guilty on arraignment to the following charges:-

2 He elected to be tried by Judge alone. Exhibit A evidences that before making this election, he sought and received advice from Mr Peter Zahra SC, his counsel. The Director of Public Prosecutions through the Crown Prosecutor consented.

3 The election for trial by judge alone was made under s 132 of the Criminal Procedure Act. Sec 133 of the statute provides:

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

4 Section 18 (1) (a) of the Crimes Act defines murder as follows:

“Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.”

5 ISSUES AT TRIAL:

In his opening address, which immediately followed the opening of the case for the Crown, Mr Zahra, who appeared with Mr Lang for the accused, said that he admitted that he killed Chloe Hoson (to whom I will refer hereafter simply as Chloe) on 7 November 2003 and that he interfered with her dead body in the manner alleged by the Crown. Mr Zahra said that the only issue for the court was whether, at the relevant time, the accused was mentally ill so as not to be responsible, according to law, for his actions within s.38 of the Mental Health (Criminal Procedure) Act. In such a case he would be entitled to special verdicts of not guilty by reason of mental illness.

PRINCIPLES OF LAW:

6 As required by s.133 (2) of the Criminal Procedure Act, I set out hereunder certain principles of law which I intend to apply, or have regard to, namely:-

a) That the Crown must prove beyond reasonable doubt that on or about 8 November 2003, the accused intentionally caused the death of Chloe.

Mental Health (Criminal Procedure) Act

d) That I must decide the matter only upon the evidence tendered to the court and that, as a consequence, I must put aside all emotions, such as sympathy for Chloe or revulsion for the conduct of the accused.

7 It is convenient, in light of par 6 (c) above, to mention at this stage the matters referred to in subsections (a) and (b) of s.37 of the Mental Health (Criminal Procedure) Act. There is a Mental Health Review Tribunal, constituted under the Mental Health Act. It comprises members appointed by the Governor. One is to be a full time member appointed as the president of the Tribunal; one or more may be full time members appointed as the deputy president or deputy presidents of the Tribunal; and the remaining members, if any, may be appointed as full time or part time members.

8 Members of the Tribunal are to be appointed from the following classes of persons, namely barristers and solicitors, psychiatrists and persons having, in the opinion of the Governor, other suitable qualifications or experience, including at least one person selected from a group of persons who are nominated by consumer organisations. The members are to include one or more women and one or more persons of ethnic background.

9 In the event that the accused is found not guilty by reason of mental illness, he would constitute a “forensic patient” within the definitions in Schedule 1 to the Mental Health Act. In relation to such a person, the Mental Health Review Tribunal must be constituted by the president or a deputy president, a member who is a psychiatrist and a member (not being a psychiatrist, or a barrister or solicitor) who has other suitable qualifications or experience.

10 S.81 of the Mental Health Act requires the Mental Health Review Tribunal to review cases of persons found not guilty by reason of mental illness as soon as practicable and make a recommendation to the Minister for Health:

“(a) as to the person’s detention, care or treatment, or

(b) if the Tribunal is satisfied, on the evidence available to it, that the safety of the person or any member of the public will not be seriously endangered by the person’s release, as to the person’s release (either unconditionally or subject to conditions).

11 S.82 of the Mental Health Act obliges the Tribunal to review each forensic patient on a regular basis, at least once every six months, and make a recommendation to the Minister for Health. In the event that it makes a recommendation for the release of the patient, which it may not do unless satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered, the Minister must notify the Attorney General of the recommendation and furnish a copy of the notification to the Director of Public Prosecutions.

12 S.84 of the Mental Health Act empowers the Attorney General to object to a person’s release on the grounds that “the person has served insufficient time in custody or under detention”. In the event that the Attorney General objects to a forensic patient’s release, the release may not be ordered.

THE DEATH OF CHLOE:

13 Chloe was born on 8 January 1998. As at 7 November 2003, she was living with her parents Karina Louise Beharrell and Michael Hoson and her younger siblings in a mobile home at Lansdowne Caravan Park, Hume Highway, Lansvale. So far as the evidence relates, she was last seen alive, by anyone other than the accused, playing with other children in the vicinity of her home, at a time which was probably between 1pm and 1.30pm on that date.

14 Some time after 1.30pm, Mr Hoson became concerned as to the whereabouts of Chloe and commenced to search for her. As time passed without any sighting, his concern increased. Others were enlisted to join the search and ultimately the police became involved. At about 11.30pm, the search, which was, at one time, assisted by a police helicopter, was suspended until the following morning.

15 It was not until about 8am the following day that Chloe’s body, naked from the waist down, was located on the bank of a creek, about 200 metres from her home, by her uncle, Mr Duane Kane. Some items of clothing were nearby and her wrists and ankles were tied with blue and yellow rope. A piece of plastic was over her head.

16 I am satisfied beyond reasonable doubt that what happened to Chloe was accurately related by the accused in a record of interview with then Detective Senior Constable (now Detective Sergeant) Roger Best, at Cabramatta Police Station on Monday 10 November 2003, commencing at 2.46am.

17 After telling Detective Best and his colleague that Chloe came to his cabin at about 1.30pm on 7 November 2003, asking if she could play with his cat, he told the police that he had killed her. In answer to the question, “I’d like you to tell me the circumstances around the death of Chloe”, he responded:

“O.K, what basically happened was she seen my cat and she came over, she came into my place and everything was fine, she was playing around. I gave her some stickers and said she could have them and, and she was cutting them up and that and she spilt my pot on the ground. At that I lost the plot, I, dunno what, I blacked out and the next thing you know, I, I was strangling her in my bedroom. I put, I couldn’t kill her so I, I put a plastic bag over her head and then I put another plastic bag over her head and that killed her. I, I then tied her up and put her inside a bag that I had and, in my wardrobe, and then later on I took her out and placed her on, after I changed the bed sheets, I placed her on the bed and fornicated (masturbated) at the end of the bed and I popped her hymen, and then that’s about it, and then, then I put her back inside the bag and put her inside my cupboard ……

I am satisfied beyond reasonable doubt that the accused intentionally killed Chloe.

THE LAW AS TO MENTAL ILLNESS:

18 The law in this state follows the principles enunciated in Daniel M’Naghten’s case (1853) 8 ER 718) where the judges provided an advisory opinion to the House of Lords. Lord Chief Justice Tindal, on behalf of the judges, other than Maule J, who gave a separate opinion, said relevantly to this case, “The jurors ought to be told in all cases that every man is to be presumed 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 a 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”.

19 In the course of his charge to a jury, accepted as accurately reflecting the law, in The King v Porter (1936) 55CLR 182, a case where it was alleged that the accused murdered his child by poisoning, Dixon J said:

“We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he 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 every day standards of reasonable people. It you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.”

20 The question arose again in the High Court in Sodeman v the King (1936) 55 CLR 192. Latham CJ stated the principles thus, “The defence of insanity is established in law only if it is shown that the accused did not, at the relevant time, know the nature and quality of his act, or if he did, did not know that it was wrong and that this absence of knowledge arose from a defect of reason amounting to a disease of the mind”.

THE ACCUSED’S MEDICAL HISTORY:

21 The accused was born on 19 July 1981 and was therefore, 22 years of age at the time of the death of Chloe. A considerable body of documentary material was tendered, both in the Crown case and in his case, as to his mental health in the years prior to that awful event. His involvement with mental health treatment, so far as the material in evidence (which does not seem to be complete) discloses, commenced with his presentation at Liverpool Hospital on 31 December 1999, claiming that he was “hearing voices, depressed”. The nursing assessment recorded that the voices were saying that a bikie gang was coming to see him. It continued that his only history was of Attention Deficit Disorder; that he was not taking medication and that he was quite upset because “his life was going so well, now he is all mixed up, stole his mum’s car yesterday but ended up taking it back; actually wanted to hurt himself yesterday; nil suicidal thoughts today; regular marijuana smoker and took Pethidine tablets last week; nil psychiatric history”.

22 He presented again at Liverpool Hospital on 3 April 2000. The presenting problem was recorded as, “Psychotic episode and aggression/violence”, and the outcome “refused assessment, client not willing to be assessed”.

23 On 14 February 2000, he was admitted to Shellharbour Hospital. In that hospital’s notes there are references to complaints of hearing voices; to it being the first episode of psychosis for several months; to a possible diagnosis of schizophrenia; to the fact that he smoked “dope” daily since age of 12; to him being delusional, to him making bombs; to his belief that a microphone was planted in him to broadcast voices and to him rigging up dangerous electrical apparatus.

24 A few months later, in June 2000, he was admitted to Chisholm Ross Centre at Goulburn, having been conveyed there by police, due to concerns he was suicidal. He had been stopped whilst driving his mother’s car without permission and was found to be carrying a knife, a noose and a razor blade. It was recorded that on admission he was suspicious and expressing delusions about bikie gangs; that he described auditory hallucinations; that he appeared cooperative “but dysphoric”; and that he denied current suicidal ideation. A diagnosis of schizophreniform disorder was made. Apparently, after 3 days, he was transferred to Liverpool Hospital. That hospital recorded complaints of auditory hallucinations ordering him to do things, but a denial of suicidal thoughts or thoughts of harming others. A report under the heading Mental State Examination included, “reports recent and persistent auditory hallucinations which he finds distressing ……… occasional command style hallucinations, delusions – the voices are real, bikie gang has put a device in his body …… themes of worthlessness and hopelessness persist; denies thoughts of harm to others; insight limited, very suspicious of medication ……….”. He was diagnosed with “psychotic illness?, schizophrenia, adjustment disorder”.

25 On 12 June 2000, two medical practitioners provided reports under the Mental Health Act, one under s.29 (2) and the other under s.33 (1). Both concluded that the accused was a mentally ill person. There were references in the reports to “delusions, hallucinations, possible severe disturbance of mood” and to him posing a threat to the safety of himself and others. Nonetheless, he was discharged on 20 June 2000. The discharge summary contained the diagnosis “drug induced psychosis”. He was to take Risperidone, 1mg twice daily and report for follow up to Liverpool Community Health Centre on 14 July 2000.

26 On 3 December 2000, police noticed the accused sitting cross-legged on a traffic control box at the intersection of George and Liverpool Streets, Sydney. He became aggressive and was taken to the Caritas In-Patients Unit at St Vincent’s Mental Health Service. There he complained of voices in his head and that the sky “was rumbling”. From Caritas, he was transferred to the Macquarie Unit at Liverpool Hospital on 6 December 2000 as an involuntary patient. A letter written by Dr Fairhall of St Vincent’s Hospital regarding the transfer, included the paragraph, “He remains psychotic with auditory hallucinations occasionally of a command nature. He is insightless”. Despite all this, he was discharged from Liverpool Hospital after several days.

27 On 31 December 2000, he was returned to Liverpool Hospital after being charged with assaulting his father and being subjected to an Apprehended Violence Order. The hospital notes refer to a 2 year history of increasingly bizarre episodes of behaviour and preoccupations. It was recorded that his symptoms pointed to an underlying psychotic illness and that he was refusing anti-psychotic drugs.

28 He was admitted again to Liverpool Hospital on 4 November 2001. The hospital notes record that he has “thought disorder”, “auditory hallucination” and “overload ideas”; that “he was danger to self/aggressive violent”. There was reference to “untreated psychosis and dangerous electrical set up constructed at home”. A diagnosis of low grade schizophrenia was made. He was discharged on 9 November 2001 to the care of his parents. One entry made on 6 November 2001, makes reference to his belief that his neighbours “inserted acidic microphones into his stomach and he is now a part of landline”.

29 Early in 2002, he went to Western Australia and on 23 January came to police attention when a member of the public reported that he saw him wandering in Subiaco behaving in an “unusual fashion”. He was admitted to Graylands Hospital, where, according to the hospital notes, he described a complicated delusional system regarding “Gothics", who he felt were infiltrating the community and taking over police stations”. His mental state was recorded in these terms, “He was irritable, aroused and threatening violence to others if not released. There was considerable formal though disorder with tangentiality evident. Content focused on bizarre persecutory delusions as previously mentioned. No other psychotic phenomena was evidenced. Mood was angry. Affect was restricted. He was cognitively intact. Insight was absent. Judgment was considerably impaired”. It seems, however, that he was discharged after about 5 days. A discharge summary by Dr D C Senaratne states, inter alia, “Although Timothy would clearly benefit from treatment, there were insufficient grounds for involuntary containment and treatment. Timothy was offered a voluntary period of admission but this was refused. On discharge, Timothy was strongly advised to seek follow up in Darwin where he stated he planned to reside”.

30 Back in New South Wales in December 2002, he was admitted to Liverpool Hospital after he breached an Apprehended Violence Order obtained by his family. He was discharged voluntarily on 9 January 2003 although his diagnosis was, “Paranoid schizophrenia – is at present quite psychotic”. A psychiatrist, on 27 December 2002 concluded, “Mr Kosowicz is mentally ill – he needs to remain in hospital for treatment”, and earlier another doctor, on 24 December 2002, reported, “Considering his mental state and non-compliance with medications, he may be a threat to himself as well as to others. He needs to be observed and get treated”.

31 On 30 January 2003, the accused was admitted, yet again, to Liverpool Hospital. His presentation was “acutely psychotic”. He had been found “pacing” in a park, naked and agitated. He complained of being bitten by snakes. He said that he had earlier taken cannabis and speed. He was discharged voluntarily on 4 February 2003.

32 He was admitted again to Liverpool Hospital on 19 April 2003, having been found by police in a drowsy and disorientated state.

33 A further admission to Liverpool Hospital within weeks of 7 November 2003 remains to be recorded. On 9 October 2003, he presented himself at the Emergency Department. According to the Registrar, “The presenting problem was schizophrenia – diagnosed 2 years ago, on fortnightly injections which he ceased having 3 months ago. Now hearing voices which he continually hears but with no specific instructions. (Patient) destroying property and spending all his money”. The hospital notes of 9 October 2003 record, as part of a risk assessment, “Voices angry with me, worried that I may become angry and violent”. Under ‘Clinical Impressions’, a medical officer has stated, “Schizophrenia – auditory hallucination – risk of aggression”. Despite this, the hospital released him after a few days. The last recorded note before 7 November 2003 is dated 27 October 2003 when it appears that the accused attended the clinic at Liverpool Hospital and was given prescribed medication.

RECORDS OF INTERVIEW:

34 Suspicion fell upon the accused almost immediately because his fingerprint was identified on the piece of plastic found about Chloe’s head. Although not under arrest at that stage, he agreed to participate in a record of interview with police officers which commenced at 5.27pm on 9 November 2003. In that interview, he denied anything to do with the death and said that in the period between 1.30pm and 3pm, he was lying down in his cabin. The interview which comprised over 650 questions and answers did not conclude until 7.39pm. On the face of it, the accused gave a coherent and detailed account of his movements over the past few days, wholly exculpatory of any criminal activity. For instance, shown a photograph of Chloe and asked whether he knew her, he replied, “I have seen her around, I think”. Asked then, where he had seen her, he replied, “Um, in the middle of the caravan park, probably”. He said he was unable to recall when he had last seen her.

35 Following the conclusion of the interview, the accused left the police station and went to his parents’ home. Later that night, further information came into the possession of Detective Best, who was in charge of the investigation, and, in company with other police, he went to the home of the accused’s parents at Sadlier and arrested him. He was conveyed to Cabramatta Police Station. After being appropriately cautioned, he agreed to participate in a second record of interview, which commenced at 2.46am the following morning, that is Monday, 10 November. In that interview, as I have already indicated, he admitted his involvement in the killing of Chloe. He was able to recount what had occurred in great detail, some of which is reproduced above.

36 In the second interview, although, of course, in all material respects, he gave a version of events, diametrically opposed to what he said earlier, and making some allowance for the fact that the interview commenced at 2.46am and concluded at 4.29am, the accused seemed to respond appropriately to the questions asked of him and to be very aware of the wrongfulness of his conduct. For instance there were the following questions and answers:

37 In the second interview, the accused gave an account of his movements, actions and feelings on the day that he killed Chloe. Early in the morning, he said, “I was going mad because I was hearing my voices and I went over to my girlfriend’s place just to get some peace, that’s just so I could be with her, I didn’t tell her what was going on or anything that”. He said this was about 7am. The person he described as his girlfriend and whose only name known to him was “Lilly” has been identified as Emanuela Agius.

38 Ms Agius provided $20 for him to buy a “stick” of marijuana, part of which they smoked through a bong. He left her house about 9am and returned to his cabin – “My voices were still driving me crazy”. He fed his cat and lay down.

39 As to the voices, he said that they were “just constantly talking and I can’t get any peace from them”. He added that he was unable to discern the words spoken.

40 He returned Ms Agius’ residence about lunchtime. He said that they merely talked and no further marijuana was used. He left to return to his own cabin about 1.30pm, which was when he was followed by Chloe. He allowed her to enter his van and play with his cat, and he gave her some small stickers, which she started to cut up. It was in the course of doing this, that she knocked from a table a bowl containing about $20 worth of marijuana, which spilled onto the floor. He said, “And then I blacked out, I, and, my, voices were driving me crazy still and I grabbed her and I took her into the bedroom and tried strangling her …………… “

41 Asked to explain what he meant by the expression, “blacked out” and whether it indicated loss of vision, or something similar, he said, “No, just loss of control of my own brain, just didn’t know what I was doing, I just got too angry to know what I was doing, my voices were driving me crazy, so that’s it. My, I was confused I suppose”. Asked how the voices were driving him crazy, he replied, “they were just constantly talking and I couldn’t shut them up”.

42 After detailing in the record of interview how he killed Chloe, indecently interfered with her body, and masturbated on the bed where her body lay, he said he had a shower, dressed and went to Ms Agius’ cabin. He sat and talked to her from about 3pm until 6pm, during which time, he said they engaged in general conversation, the detail of which he could not recall.

43 He returned to his cabin at 6pm in order to watch on televison, a program called Neighbours, followed by other television programs. At around 6pm police investigating Chloe’s disappearance called and were told that he had no information to give. He retired to bed between 8.30pm and 9pm but lay awake until about 1am. He then took the bag containing Chloe’s body from his cupboard and walked with it out of the caravan park. Some little distance away, he removed the body from the bag and left it on a creek bank, where it was found, a few hours later, by Mr Kane.

44 He returned to his cabin, had another shower and went to sleep. When he awoke, he said, “I was worried about what I did, because by that time, I realized what I had done”. Asked what he meant by that, he replied, “Well, basically I realized that I had killed a person and well, I realized earlier on, after I had killed her, but I didn’t actually click until the morning”. He dressed and went to Ms Agius’ home, but she did not respond to his door-knocking and he returned to his cabin and watched television. He returned to Ms Agius some time later, staying with her for about an hour, during which they heard a radio broadcast of the finding of Chloe’s body. Asked about his reaction to that, he said, “Guilty because of what I did, and I didn’t know what to do, so I was scared, so I just went to my mum and dad’s place”.

45 From Ms Agius’ home he returned to his cabin, fed his cat, collected some belongings and went to his mother and father’s home.

46 Throughout the interview there were numerous references by the accused to him “hearing voices”. Nowhere, however, does he state that voices told him to kill Chloe, let alone assault her body. The closest he seems to come to an element of compulsion is his response to a question in relation to the period immediately after Chloe spilt his cannabis, “What gives you the impression that you blacked out? He replied “Well basically because its, there’s no way I’d do a thing like that normally and I, I don’t know what I was doing, I couldn’t stop myself”.

47 The subject was raised again later in the interview as the following questions and answers indicate:

THE TESTIMONY OF EMANUELA AGIUS:

48 Ms Agius, who as far as the evidence relates, was the only person, apart from Chloe, to speak to the accused on the day of the killing, provided a statement to the police on 11 November 2003. It was admitted by consent at the trial, and she was not required to give oral evidence. There is no reason not to accept what she said, which is not significantly at odds, so far as it concerned her, with what the accused said in the second record of interview.

49 Ms Agius said that she was 33 years of age and had lived in the Lansdowne Caravan Park in a caravan since December 2002. She was in receipt of a disability pension for depression and in the course of treatment, first met the accused at the Macquarie Clinic at Liverpool Hospital, towards the end of 2003 or early in 2004.

50 They met again in the caravan park and found that they were living in cabins a few alley-ways apart, less than a minutes walk. She said that after this they spent a lot of time together, mostly in her cabin. She denied that they were more than friends and said that although the accused wanted the relationship to develop further, she would not permit it.

51 Ms Agius said that although the accused told her he was schizophrenic she did not notice any sign of his illness. He also told her that although he was supposed to take medication, he “never took his medication, as he didn’t need it”. She said that the accused used cannabis everyday and that they would often smoke it together.

52 As to the events of 7 November 2003, Ms Agius confirmed that the accused came to her caravan early in the morning and that she gave him money to buy a “stick” of cannabis. When he returned with it, they smoked part of it, and talked over a period which she described as “a few hours”. According to her statement, the accused remained with her until early afternoon, contrary to what the accused said in his record of interview, that he returned to his cabin for a time and then went back to Ms Agius. Nothing turns on this, but I think, probably, the accused’s version is to be preferred.

53 In any event, according to Ms Agius, “I think it was a few hours after Tim left my place, I walked to his place and knocked on his door. I just went there to see him but he didn’t answer the door. I thought I heard someone creeping around inside his van and knocked again, but he didn’t answer, so I left and walked back to my place”. This piece of evidence fits with the accused’s statement that when he was masturbating in front of Chloe’s body, he heard a knock on his caravan door, which he ignored.

54 Some two or three hours later, according to Ms Agius, the accused came to her cabin wearing the same clothes he had been wearing earlier in the day. When she told him that she had knocked on his door, he said, “I was asleep”. She said that he stayed for a short time and then returned home. She described his presentation, “Tim wasn’t very talkative that afternoon, but didn’t seem any different to normal”.

55 Ms Agius said that she first heard of a missing girl in the caravan park around 7.30am the following morning, when she bought some cigarettes at a nearby service station. On her way back from this purchase, she noticed some police in the park. Shortly after returning to her cabin, the accused came to her and remained for some hours while they listened to the radio. While doing so, they heard the report of the finding of Chloe’s body. The accused then told her that he was going to his mother’s house and left. She said, “Tim seemed like he was in shock”.

POST OFFENCE MEDICAL RECORDS:

56 Whilst in custody, awaiting trial, the accused, as it appears, was housed in a hospital complex and its records, exhibit 3, were tendered in his case. The notes for 11 November, the day after his arrest, include, “ He reported hearing voices, schizing out and being unable to stop at the time of the murder because he was angry”.

57 On 14 November the notes include, “states, ‘again’ was hearing voices at the time when I murdered a person. States, ‘wants to get help for his voices’; states, ‘voices coming and going’, intermittent voices (present now), 1 male, 1 female, does not know what they say, “whispering””. Later, on 14 November, the notes record, “At the time of the event, I was not in control, I was agitated, voices were driving me, no peace, in a trance state/confused”.

58 On 11 December, the notes record, these passages, “Thinks about the offence ‘all the time’, says it makes him upset, he can’t understand why he did it. Blames the voices for making him lose his temper”.

59 According to the records, the accused continued to be troubled by hearing voices. Notes taken on 16 December 2004, include “says voices control me, like putting me under hypnosis and control me like a puppet, voices make me do things again”.

60 As recently as 10 February this year, there is the reference “he reports again that his voices are constant – claims there are a number of voices, some of whom have names”.

EXPERT REPORTS:

61 The Crown relied upon the report of Consultant Psychiatrist, Dr C L Wong, who also gave oral evidence. Dr Wong interviewed the accused on two occasions, namely, 9 August 2004 and 16 September 2004. In his report, Dr Wong reviewed, in detail, the accused’s personal history, his past health and substance usage and the events leading to the death of Chloe. He also summarised the accused’s past medical records, which had been made available to him by the Crown.

62 Under the heading, “Psychiatric Diagnosis”, Dr Wong said:

“Mr Kosowicz first experienced delusions and hallucinations in 1999. Some of his delusional beliefs were quite bizarre, for example, electronic devices having been implanted in him to keep him under surveillance. He was diagnosed as suffering from schizophrenia. I concur with the diagnosis. As mentioned above, he has had many admissions to psychiatric hospitals when he manifested acute symptoms.

I am mindful that at times the diagnosis of drug-induced psychosis had also been made. However, with the benefit of reviewing his progress over the years, I feel that it is unlikely that illicit drug usage had played a substantial role in the causation of his psychotic symptoms. There were psychotic episodes when there was no history of associated illicit drug usage. The symptoms of his psychotic disorder appeared to be much in excess of what would be expected given the type and amount of illicit drugs used. Furthermore, he continued to experience psychotic symptoms after he has been in custody for over 10 months, where it is unlikely that he would have had ready access to substantial amounts of illicit drugs on an ongoing basis.

There is no evidence that he is suffering from Attention Deficit/Hyperactivity Disorder ((ADHD).”

63 The nub of Dr Wong’s report, so far as I am concerned, is the “Discussion and Conclusion” which appears under the heading, “Availability of Psychiatric Defences”:

“Mr Kosowicz gave the history that he heard voices again shortly after his last discharge from hospital on 16.10.03 and that when the alleged offence was committed he was asked to do so by the voices. I very carefully assessed the reliability of his history. This is, I feel, particularly indicated because while he told the police and his doctors in prison that he heard voices, it was not until a few months after the alleged offence that he mentioned that they asked him to kill. As well, according to a number of witnesses, including his mother, his girlfriend Lilly and a few friends, he did not manifest any overt abnormalities during the period immediately preceding and following the alleged offence. Furthermore, I am unable to conclude after perusing his medical records that, in the past, he had continued to manifest psychotic symptoms in between his admissions to hospitals.

To assess the reliability of his history, I interviewed him for a second time and took into account the following observations:

* Mr Kosowicz told me that for several years, Jessica London was responsible for putting him on to the 69-telephone line, through which she made him hear voices. As far as I could discern from his medical records, he referred to the 69-telephone line only once, which was in November 2001, and had never mentioned Jessica to any professional. It is relevant to note that he told me about her, not spontaneously, but in response to a specific question from me. As noted above, I picked up the name from the remarks he made at the end of the ERISP after the police officers had left the interviewing room and he might not be conscious that his remarks would be recorded. It would thus appear that had I not pursued this particular line of questioning, he would probably have kept his delusional beliefs about Jessica to himself, even though she was the cause of immense mental anguish in him for several years and he hated her for that. He said the reason he never divulged it to the doctors he saw was because he had not been asked specifically.

Given his tendency, for whatever reason, to conceal some of his symptoms, that he did not tell the doctors that the voices had asked him to kill would not necessarily mean that this did not take place.

* According to his medical records, even while he was harbouring florid delusions and having auditory hallucinations, he presented well to the hospital staff and as a result was considered fit for discharge. This was well borne out by, for example, the entries in his medical file on 9.11.01, 24 1. 02 and 7-9 Jan 03.

On 9.11.01, he was still experiencing auditory hallucinations and harbouring delusions. He had only partial insight. He was discharged when it was felt he was not a danger to himself or to others. He was admitted only 5 days ago when he held the belief that the CIA have been involved in implanting electronic devices to keep him under surveillance and was preoccupied with magical crystals and electronic telephony devices. On admission, he vigorously resented medication and required 6 people to restrain him.

On 24.1.02, he had ongoing delusional system. He was noted to be settled and co-operative and was discharged on the same day.

On 7.1.03, he was deluded that he would be taken to America on the 9th of February because that was ‘what happens when someone makes the Lucas Heights nuclear reactor to (sic) stuff up and make the plasma ball go into the sky’. ‘The plasma ball follows the person around until the 9th of Feb when they are taken to America and then they lie on their backs’. However, he was noted to be settled, pleasant and interacted appropriately. He participated well in exercise groups. He was discharged 9.1.03.

That he presented well to the staff might be one of the reasons why his admissions to hospital were always very brief.

It follows therefore that the fact that he was observed to be normal by the witnesses around the time of the alleged offence does not necessarily mean he was without delusions and hallucination.

* Mr Kosowicz’ behaviours surrounding the death of the victim on the eventful day, as narrated by him were bizarre and in a sense without motive. According to him, he lost control when the victim accidentally spilt the bowl of marijuana. However, her death was occasioned not by his loss of control on the spur of the moment, but by a series of deliberate acts which were temporally quite far removed from the accidental spill.

I note that he subsequently digitally penetrated the victim’s vagina and anus and later masturbated in front of her dead body. It would require the presence of sexual deviancy of an extreme degree for someone to take the life of a 5 year old girl to obtain sexual gratification by digitally penetrating her dead body and masturbating in its presence. There is no history that Mr Kosowicz had previously manifested any behaviour suggestive of sexual aberrations. The evidence available indicates that his sexual object appeared to be adult females. An 18 year old neighbour (Samantha Carter) stated that he had attempted to touch her breasts. During his last admission to Liverpool Hospital, he was admonished for being sexually intimate with a fellow female patient who is presumably an adult. Mr Kosowicz himself vehemently denied any aberrant sexual inclinations.

The bizarre nature and the apparent lack of motive of the alleged act would tend to suggest that the alleged killing and the associated behaviours were the product of psychotic symptoms.

* According to Mr Kosowicz the ‘voices’ had in the past been the cause of irrational or bizarre behaviours by him. He had smashed up his place, as well as his parents’. He threw rocks at other people’s windows. He tattooed the Star of David on his body and painted it on windows and mirrors. As well, he had his microwave oven and his father’s power tool wired up. His mother, in her written notes, confirmed such behaviours on his part.

* There were some inconsistencies in the history he gave regarding the voices. He, for example, told Dr Allnutt that the voices might have told him to insert his fingers into the victim’s anus and rectum but he wasn’t positive. However, he told me he was positive about that. The possible explanations are that the history of the voices was contrived, that his recollection was imprecise or that the account was embellished.

Having very carefully considered these somewhat countervailing observations, I am of the opinion that at the time of the alleged killing, Mr Kosowicz was, more probably than not, experiencing command auditory hallucinations. He was aware of the nature and quality of his acts. However, hearing voices telling him to kill or otherwise harm the victim and feeling that he had to go along with them, he was unable to reason about the rightness and wrongness of his act as a normal person would. Bearing in mind that his defect of reason was due to schizophrenia, which is a disease of the mind, my opinion is that the defence of mental illness is available to him.

Likewise, as schizophrenia is an abnormality of mind and his capacity to judge the rightness and wrongness of his act was at the time substantially impaired, the defence of substantial impairment is I feel also available to him”

64 In oral evidence, Dr Wong supplemented his report. There was the following exchange:

65 At the conclusion of Mr Zahra’ cross-examination of Dr Wong, I addressed some questions to him concerning the presentation of the accused in the records of interview and his presentation to Ms Agius. As recorded in the transcript:

66 There was tendered in the accused’s case, without objection by the Crown, the report of Dr S H Allnutt, Forensic Psychiatrist. It appears that Dr Allnutt had 2 interviews with the accused, the first some time between 31 December 2003 and 21 March 2004, and the second on 21 March 2004. The history given to Dr Allnutt differed somewhat from that taken by Dr Wong and given by the accused in the second record of interview. In particular, the involvement of the accused with cannabis seems to be more significant. The report contains the following four paragraphs illustrating this:

“On the night prior to the alleged offence he stayed at home in the caravan park. He woke up hearing voices he said, “driving me crazy”. He couldn’t recall exactly what they were saying. He went to his girlfriend’s place. He arrived there around 9am. He spoke to her for a while. He could not recall the content of the conversation. At about lunchtime he got “a stick of cannabis” and smoked another half gram. He told me that cannabis tended to “quiet” the voices down for awhile after smoking it. The voices quietened down for about an hour after that. Leaving his girlfriend’s place, the voices had all but gone. He felt calmer. He walked home. While he was at his girlfriend’s place there were no arguments or conflicts between them.

Walking home he felt “stoned”, relaxed and calm. He arrived near his home at approximately 1.30 in the afternoon. Nearing his home he was approached by the victim who asked if she could play with his cat. He was carrying his cat on his shoulder. He said ‘yes’. At that time he was not hearing any voices. She walked home with him and came into the caravan. She played with his cat. Still, he said, he was not hearing any voices. The victim remained in the caravan playing with the cat.

The victim spilt the bowl of cannabis. He heard a voice say “kill her”. He was also feeling angry with the victim for spilling the bowl. He said “the voices were strong and angry, they kept saying kill her, over and over. I wasn’t thinking. I was too busy talking to the voices in my head. I don’t know what I said back to them”.

“In my opinion your client can be diagnosed with a schizophrenic disorder. While he has varied in his reported duration of the symptoms, this is not inconsistent with his condition. In my view, it appears that in 1999/2000 he experienced the onset of auditory hallucinations, which have not changed markedly. They include both a male and female voice that he hears sometimes internally and sometime externally. He does not regard the voices as part of his own psychology but rather external beings speaking to him. The intensity of the voices fluctuate over time in intensity; frequency and content and on occasion, people have difficulty in recalling what is being said. He experiences episodes of auditory hallucinations as intrusive and distressing. The hallucinations at time command him to act in an aggressive manner and he reports having done this prior to the material time of the alleged offence. He describes to some degree feeling obligated to act as the voices command. He notes that cannabis tends to reduce the intensity of the voices. People suffering schizophrenia sometimes describe this effect when they use substances.

In addition to this your client has in the past experienced paranoid ideation predominantly in the form of a delusional belief that he has a microphone in his head and that when he hears the voices he has to obey them. This delusion forms part of an irrational explanation to him, for why he experiences voices.

His illness has been characterised by multiple admissions to psychiatric hospitals complicated by a tendency to be non-adherent to medication and aggravated cannabis abuse. Complicating his presentation has been ongoing cannabis abuse, which he has been using in an attempt to treat his symptoms, stating that cannabis intoxication diminishes the intensity of the voices.

He is not suffering from any major medical illnesses although I have not formally examined your client.

He is exposed to the current stressor of serious charges and incarceration.

His functioning in my view is moderately impaired.”

67 Later, Dr Allnutt expressed opinions directly related to the issues before me, as follows:

“In my opinion your client presents with symptoms of a schizophrenic illness. I have considered the possibility of a drug-induced psychosis. I have concluded that your client has an underlying internal vulnerability that predisposes him to symptoms of psychosis independent of substances. These symptoms have occurred over a long period of time with significant social decline, to the extent that he can be diagnosed with schizophrenia. Although he described a reduction in the intensity of the voices with cannabis use, rather than exaggerating them; long-term cannabis use likely contributes to maintaining his illness. People suffering schizophrenia sometime describe a reduction in symptoms associated with intoxication while taking substances and having considered the veracity, accept his description as consistent with clinical experience.

Most psychiatrists would agree that the symptoms of schizophrenia that your client was experiencing at the material time of the alleged offence, namely auditory hallucinations and probable paranoid delusional beliefs, would meet legal criteria for a “disease of the mind” and “abnormality of mind due to an underlying condition”

Over the duration of the offending period, your client was experiencing fluctuations in the intensity of his auditory hallucinations. His total contact with the victim occurred over a fairly lengthy period of time. Given the fluctuations in his symptoms, his reasoning capacity would also have fluctuated. However, the period of time between the spilling of the cannabis and the death of the victim was relatively short with no evidence of fluctuation of symptoms in that period. His capacity for reasoning at the time that he engaged with the victim sexually is less clear and it is possible that at that time his symptoms were less intense.

Your client’s account strongly supports the view that he understood that he had a young girl with him; he understood that his actions, namely putting his hands over her mouth, putting plastic bag over her head, would harm her and even kill her; that he was immobilising her when he tied her up, that opening her legs later was a sexual act; that he masturbated and ejaculated; that placing her in the cupboard was hiding her from his and other’s view; and that he was disposing of the body when he left it.

In my opinion, your client’s defect of reason was of a severity that his capacity to reason with at least a moderate degree of sense and composure, about the wrongfulness of the act, would have been significantly compromised at the material time that the alleged offence occurred. I base this opinion on the following observations:

Your client has suffered with symptoms of schizophrenia for many years. By the time of the alleged offence, he would have come to accept many of his symptoms, including his hallucinations and delusions, as reality. He would tend to automatically organise his behaviour, engage with the world and make moral judgments in relation to these experiences and many of his.

He was of the delusional belief that he was compelled to listen to the voices. It is likely that he took for granted that the voices at the time were coming from a microchip inside his head. His description of the voices suggests that his capacity to rationally appraise their nature, consider their reality in relation to this situation; and to contemplate the rationality of obeying or ignoring their commands was severely compromised.

His capacity to consider other options (rather than follow the commands of the voices) was significantly limited. At the material time of the alleged offending he described voices that were intrusive, recurrent, intense and commanding. The intensity of the voices and the associated beliefs were such that his capacity for normal reasoning about the issue of wrongfulness was overwhelmed.”

SHOULD THE EXPERT’S REPORTS BE ACCEPTED?

68 Both the learned Crown Prosecutor and Mr Zahra submitted that I should accept the unanimous opinions of Dr Wong and Dr Allnutt that the accused was mentally ill at the time he killed Chloe, within s.38 of the Mental Health (Criminal Procedure) Act.

69 In Taylor v R 22 ALR 599, the Full Court of the Federal Court (Smithers, Connor and Franki JJ) was concerned with a jury verdict of guilty of murder, which rejected a defence of insanity. Two highly qualified psychiatrists had given evidence that Mr Taylor was unable to reason about right and wrong at the relevant time. The Crown Prosecutor conceded to the jury that there was strong evidence on the question of insanity and the trial judge accepted that the evidence was all one way on the subject. Observations of Smithers J at 608 are relevant to this case and I respectfully adopt them:

R v Matusevich & Thompson

70 In accordance with the above stated principles, I have anxiously considered whether the facts upon which Dr Wong and Dr Allnutt relied were satisfactorily established. I have done so in light of several matters which I regard as relevant. In the first place, as the accused did not give evidence, his credibility as to his feelings and motivation at the time he killed Chloe must be gleaned from the second record of interview and his rather self-serving statements to the doctors.

71 Possibly undermining this credibility, to my mind, are such matters as his normal presentation to Ms Agius throughout the day, especially in the period soon after he killed Chloe; his lies to the police when they called at his cabin about 6pm; his rather elaborate steps to secrete and dispose of Chloe’s body; his lies to the police during the first record of interview; his failure during the second interview to claim that “voices” commanded him to kill Chloe and his sexual assault upon Chloe’s body which, in my view, as he seemed to admit, was for his gratification. For the most part, of course, these matters were dealt with by Dr Wong and taken into account when formulating his opinion.

72 In the result, having scrutinized as best I can the facts upon which Dr Wong and Dr Allnutt expressed their conclusions and bearing in mind that they need only be proved on the balance of probabilities, I have come to the conclusion that I should accept the relevant facts as proved.

73 It follows, in my opinion, that I should accept the opinions of Dr Wong and Dr Allnutt and conclude that when he killed Chloe the accused was mentally ill so as not to be responsible for his actions, according to law. He was, I find, due to mental illness, unable to think rationally of the reasons which would make his acts wrong.

74 The accused, accordingly, is entitled to verdicts of Not Guilty by reason of mental illness. The consequence of that has already been explained.

ADDENDUM:

75 Before parting with the matter, there are some observations I think appropriate to make. I find it difficult to escape the conclusion that the community failed Chloe. Practitioners in Mental Health had known for years that the accused was a habitual and heavy user of illegal drugs; that he was mentally ill; that he was subject to florid psychiatric episodes in which he was aggressive and dangerous to himself and others; and that he was recalcitrant when it came to following regimens of medication laid down for him. In spite of all this, he was repeatedly let back into the community after short periods of treatment. The outcome was catastrophic in the extreme.

76 Although it does not affect the outcome of this case, to the extent that there is a tension between the views of Dr Wong and those of Dr Allnutt regarding the part played by cannabis, I prefer the opinions of Dr Allnutt. This seems to be yet another example of the link between cannabis use and mental illness, a link which from my judicial experience and reading, I regard as well established.

77 No doubt the authorities will take account of the abovementioned matters when, in due course, they consider whether the accused should be released back into the community and will also take into account the horrific circumstances of Chloe’s death and that the accused is quite capable of being a plausible liar.

VERDICTS AND ORDERS:

78 Upon each count on the indictment I return a special verdict of Not Guilty, by reason of mental illness.

79 I order that the accused Timothy Edward Kosowicz be detained in strict custody at Long Bay Prison Hospital, or such other place as the appropriate authorities may determine, and that he otherwise be dealt with according to law.

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24/03/2005 - Incorrect format when on web. - Paragraph(s) 1-79

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Citations

The Queen v Kosowicz [2005] NSWSC 234

Most Recent Citation

Hone v The State of Western Australia [2007] WASCA 283

Cases Citing This Decision

1

Hone v The State of Western Australia [2007] WASCA 283

Cases Cited

4

Statutory Material Cited

4

R v Falconer [1990] HCA 49

Cesan v The Queen [2008] HCA 52

R v Falconer [1990] HCA 49

CITATION:	The Queen v Kosowicz [2005] NSWSC 234 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	10/03/05
JUDGMENT DATE :	24 March 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Patten AJ
DECISION:	Upon each count on the indictment a special verdict of Not Guilty by reason of mental illness.; Order that the accused Timothy Edward Kosowicz be detained in strict custody at Long Bay Prison Hospital or such other place as the appropriate authorities may determine and that he otherwise be dealt with according to law.

LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	M'Naghten's case (1853) ER 718 The King v Porter (1936) 55 CLR 182 Sodeman v The King (1936) 55 CLR 192 Taylor v R 22 ALR 599
PARTIES:	The Queen Defendant: Timothy Edward Kosowicz
FILE NUMBER(S):	SC 70027/04
COUNSEL:	Crown Prosecutor: Mr P Lynch Defendant: Mr P Zahra SC and Mr N Lang
SOLICITORS:	Solicitor for DPP (NSW) Defendant - Legal Aid Commission- Mr Nathan Steel

LOWER COURT JURISDICTION:
LOWER COURT JUDICIAL OFFICER :	Kevin Flack