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Supreme Court 8 November 2012

R v Waszczuk

[2012] NSWSC 1080

Assault & violenceHomicide
CRIMINAL LAW SPECIAL HEARING MURDER STABBING SPECIAL HEARING APPOINTMENT OF AMICUS CURIAE

Citation: R v Waszczuk [2012] NSWSC 1080
Court: Supreme Court of New South Wales
Date: 8 November 2012
Judge(s): Adamson J

Background

The accused was charged with the murder of his father on 24 May 2009. He had stabbed the deceased approximately 24 times at the family home in West Pennant Hills before telephoning Triple-0 in the early hours of the following morning to report what he had done and surrender himself.

The accused initially pleaded guilty, but when the matter came before the court for sentencing, concerns arose about his fitness to plead. A protracted fitness process followed involving multiple findings and reviews by both the Supreme Court and the Mental Health Review Tribunal. By mid-2012, the Tribunal had determined that the accused would not become fit to be tried within 12 months.

The Director of Public Prosecutions elected to proceed with the murder charge, and the matter was listed for a special hearing. A special hearing is a statutory procedure under the Mental Health (Forensic Provisions) Act 1990 that allows the court to determine, on the limited evidence available, whether an unfit accused committed the relevant offence.

  • Whether the evidence established, on the limited evidence available, that the accused committed the offence of murder.
  • Whether the accused had a defence of mental illness under s 38 of the Mental Health (Forensic Provisions) Act 1990 such that the appropriate verdict was "not guilty on the ground of mental illness."
  • Whether the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 was available.
  • What procedural arrangements were appropriate where the accused sought to appear unrepresented at a special hearing requiring legal representation by default under s 21(2) of the Act.

Decision

The accused sought to represent himself, which the Act permits only with the court's leave. Adamson J granted leave on the condition that a Queen's Counsel was appointed as amicus curiae (a lawyer assisting the court, not representing any party) to act as a contradictor to the Crown on the mental illness and substantial impairment issues. The Bar Association assisted in identifying senior counsel willing to take that role, and QC James appeared throughout the hearing in that capacity.

The psychiatric evidence, drawn from reports and oral evidence by Professor Greenberg (forensic psychiatrist) and Dr Westmore (forensic psychiatrist), as well as a statement from the accused's treating psychiatrist, was unanimous. At the time of the stabbing, the accused was suffering from chronic paranoid schizophrenia. His condition caused him to hold the false belief that killing his father was morally justified as "karma" and that it was the "right time."

Adamson J was satisfied that schizophrenia constituted a disease of the mind and that the accused was, as a result, labouring under a defect of reason at the time of the offence. The defect of reason meant the accused was mentally ill so as not to be responsible according to law. The court returned a verdict of not guilty on the ground of mental illness, making it unnecessary to determine the question of specific intent for murder.

The court was not satisfied that releasing the accused into the community would be safe, given the treatment-resistant nature of his chronic schizophrenia and recent exacerbations of his condition. The accused was ordered to be detained until released by due process of law, with the matter referred to the Mental Health Review Tribunal.

Orders Made

  • The accused is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal until released by due process of law.
  • The Registrar is directed to notify the Minister of Health of the orders as soon as practicable.
  • The Registrar is directed to notify the Mental Health Review Tribunal of the verdict and orders as soon as practicable, and to provide the Tribunal with a copy of the reasons, the hearing transcript, and the exhibits.

Key Takeaways

  • Where an accused is unfit to be tried and the Tribunal determines that fitness will not be recovered within 12 months, the prosecution may proceed by way of special hearing under the Mental Health (Forensic Provisions) Act 1990, with a limited range of available verdicts.
  • Under s 21(2) of the Mental Health (Forensic Provisions) Act 1990, an unfit accused does not have an unqualified right to self-representation; court leave is required, and the Supreme Court here conditioned that leave on the appointment of an amicus curiae to address the mental illness and substantial impairment issues.
  • A court conducting a special hearing retains the power, drawing on R v Damic and R v Issa, to adduce psychiatric evidence of its own motion where mental illness may be in issue, even if neither the Crown nor the accused raises it.
  • Chronic paranoid schizophrenia causing a defect of reason that led the accused to falsely believe his actions were morally justified was found to satisfy the elements of the mental illness defence on the balance of probabilities.
  • A verdict of not guilty on the ground of mental illness does not result in unconditional release; the court separately assessed community safety and, finding a serious risk, ordered continued detention subject to review by the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 21, 22, 29, 38
- Crimes Act 1900 (NSW), ss 18(1)(a), 23A

Cases
- R v Waszczuk [2012] NSWSC 380
- R v Issa (unreported, 16 October 1995, Sperling J)
- R v Damic [1982] 2 NSWLR 750; 6 A Crim R 35
- Hawkins v The Queen [1994] HCA 28; 179 CLR 500
- R v Minani [2005] NSWCCA 226; 63 NSWLR 490
- Cvetkovic v R [2010] NSWCCA 329