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District Court 28 January 2016

R v Ilie Istudor

[2016] NSWDC 1

HomicideFirearms & weapons
ATTEMPT MURDER SHOOTING SPECIAL HEARING MENTAL ILLNESS INTENT ABSENT MENTAL ILLNESS JUDGE ALONE

Citation: R v Ilie Istudor [2016] NSWDC 1
Court: District Court of NSW
Date: 28 January 2016
Judge: Haesler SC DCJ

Background

The accused, an 87-year-old man who had migrated to Australia from Romania in 1951, developed an intense and consuming preoccupation with the management of his Lakemba unit block. He held a delusional belief that the strata manager and a neighbour were conspiring against him, and believed his neighbour was attempting to poison him. Multiple decisions by the Consumer, Trading and Tenancy Tribunal confirming the strata manager's appointment did not alter those beliefs.

On 24 September 2014, during a strata meeting at the unit block, the accused left the meeting, retrieved a sawn-off single-shot rifle, returned to the landing, and fired a shot at the strata manager. The bullet passed through the strata manager's neck, narrowly missing vital structures. The strata manager survived but suffered lasting injuries including hearing loss.

The accused was charged with shooting with intent to murder, wounding with intent to cause grievous bodily harm, and three Firearms Act offences relating to possession of prohibited and unregistered firearms.

  • Whether the accused was fit to be tried on the attempt murder charge and its alternative, or whether a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) was required
  • Whether, at the time of the shooting, the accused was mentally ill so as not to be legally responsible for his actions under the M'Naghten principles (as applied in Australian law)
  • Whether the accused's delusional disorder was of a character that prevented him from knowing that what he was doing was wrong

Decision

Haesler SC DCJ determined that the accused was unfit to stand trial on the attempt murder count and its alternative, notwithstanding a contrary finding by the Mental Health Review Tribunal following its October 2015 review. The accused was found fit to plead to the three Firearms Act charges, to which he entered guilty pleas. The special hearing proceeded on counts one and two before the judge alone.

The court received psychiatric evidence from two experts, Dr Furst and Professor Greenberg. Both gave evidence that the accused suffered from a serious and chronic delusional disorder. His delusional beliefs were not merely strongly held views of the kind a person without mental illness might hold; they were the product of a disease of the mind that distorted his entire reasoning. One expert drew an analogy with a cataract impairing vision: the disorder clouded and distorted the accused's thinking in a way that a person without the illness could not experience. Both psychiatrists were satisfied that the accused lacked insight into his illness, itself a consequence of the illness.

The central legal question was whether the accused, at the time of the shooting, knew that what he was doing was wrong. The court was satisfied, on the limited evidence available under the special hearing procedure, that he did not. His delusional disorder was so pervasive that it prevented him from understanding the wrongfulness of his actions. That conclusion distinguished his case from situations where a person without a psychotic illness may feel morally justified in their actions: in those cases the defective reasoning does not arise from a disease of the mind.

The court accordingly entered a special verdict of not guilty on the attempt murder charge by reason of mental illness under section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The accused was ordered to be detained pending review by the Mental Health Review Tribunal, which is required to assess whether his release would endanger public safety and whether less restrictive care is appropriate and available.

Orders Made

  • A special verdict of not guilty on Count 1 (attempt murder) by reason of mental illness was returned pursuant to section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • No verdict was required on Count 2 (the alternative charge of wounding with intent to cause grievous bodily harm).
  • The accused was ordered to be detained at the Kevin Waller Unit, Long Bay Gaol Metropolitan Special Programs Centre, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law pursuant to section 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The Registrar was directed to notify the Minister of Health and the Mental Health Review Tribunal of the verdict and orders, and to provide the Tribunal with the reasons, orders, and hearing exhibits.

Key Takeaways

  • The District Court exercised its power under section 30(2)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) to proceed directly to a special hearing rather than refer the matter back to the Mental Health Review Tribunal, where it disagreed with the Tribunal's fitness assessment on particular counts.

  • A special verdict of not guilty by reason of mental illness does not result in unconditional release. Under sections 43 and 44 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused remains detained and subject to regular review by the Mental Health Review Tribunal, which must be satisfied that release would not seriously endanger public safety.

  • Psychiatric evidence distinguished between a person who feels morally justified in their actions without a psychotic condition, and a person whose delusional disorder so distorts their reasoning that they cannot know their actions are wrong. Only the latter satisfies the mental illness defence.

  • Unfitness to be tried does not preclude a person from being fit to plead to, and be sentenced for, other charges arising from the same incident. In this case the accused was found unfit on the attempt murder count but fit to enter guilty pleas to the three Firearms Act charges.

  • Where a special hearing is conducted, the accused retains the same rights to legal representation and to raise defences as would be available in an ordinary criminal trial, with the procedure designed to ensure justice is done as best it can be given the accused's unfitness.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 29, 30, 38, 39, 43, 44
- Crimes Act 1900 (NSW), ss 29, 33
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases:
- R v Abdallah [2005] NSWCCA 365
- R v Gourlay [2015] NSWSC 67
- Hawkins v The Queen (1994) 179 CLR 500
- R v Issa, NSWSC, unreported, 25 October 1995
- Knight v The Queen (1992) 195 CLR 475
- R v Lucas (1970) 120 CLR 171
- R v Minani [2005] NSWCCA 226; (2005) 62 NSWLR 490
- R v Newbury [2012] NSWSC 1361
- The King v Porter [1933] HCA 1; (1933) 55 CLR 182
- Stapleton v The Queen (1952) 86 CLR 358