AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 July 2018

R v Christos Tsekas

[2018] NSWDC 187

Assault & violence
SPECIAL HEARING WOUND WITH INTENT TO MURDER

Citation: R v Christos Tsekas [2018] NSWDC 187
Court: District Court of New South Wales
Date: 13 July 2018
Judge: Mahony SC DCJ

Background

The accused, a 74-year-old man residing in a Rockdale hostel facility, was charged with wounding a fellow resident with intent to murder on 25 September 2016, contrary to s 27 of the Crimes Act 1900. An alternative charge of wounding with intent to cause grievous bodily harm under s 33(1)(a) was also laid. The accused had a lengthy psychiatric history spanning decades, having been diagnosed with schizo-affective disorder and, more recently, co-morbid cognitive impairment.

In the months before the incident, the accused had developed a fixed delusional belief that the victim was responsible for dust entering his room via the air-conditioning. On the evening of 25 September 2016, the accused entered the victim's room, pushed him onto his bed, and struck him multiple times on the neck with a meat cleaver. The victim sustained several incised wounds, including an injury to a branch of the left superior thyroid artery, and was hospitalised for three days.

The accused was found unfit to stand trial by Judge Syme in October 2017. The Mental Health Review Tribunal subsequently determined he was unlikely to become fit within 12 months, which triggered a referral to the District Court for a special hearing. Both parties elected to have the matter determined by judge alone under s 21A of the Mental Health (Forensic Provisions) Act 1990.

  • Whether the accused committed the act of wounding the victim, satisfying the physical elements of the principal charge under s 27 of the Crimes Act 1900
  • Whether the accused was not guilty by reason of mental illness under s 22(1)(b) of the Mental Health (Forensic Provisions) Act 1990, applying the test in R v Porter (1933) 55 CLR 182
  • Whether, if a not guilty by reason of mental illness verdict was returned on the principal charge, any verdict was required on the alternative charge under s 33(1)(a)

Decision

Mahony SC DCJ accepted the evidence, including the accused's own admissions during his electronically recorded interview, that the accused had physically committed the wounding. The court was satisfied beyond reasonable doubt that the act was that of the accused and that the victim sustained wounds consistent with multiple stabbings.

The court then turned to the defence of mental illness. The accused bore the onus of establishing this defence on the balance of probabilities. Two psychiatrists, Dr Dayalan and Dr Martin, gave expert evidence. Both concluded that at the time of the offending, the accused was suffering from a defect of reason caused by his schizo-affective disorder and dementing illness. The delusional belief that the victim was directing dust into his room directly drove the offending conduct.

Applying the test from R v Porter, the court accepted that the accused did not know the nature and quality of his act at the time of the offending, and was satisfied on the balance of probabilities that he did not appreciate its wrongfulness. The court also applied the approach from R v Minani in finding that while the act was the accused's own, his mental illness meant he was not criminally responsible for it.

Consistent with R v Istudor, the court held that once a not guilty by reason of mental illness verdict was returned on the principal charge, no verdict was required on the alternative count.

Orders Made

  • The accused was found not guilty of wounding with intent to murder on the grounds of mental illness, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990
  • The accused was ordered to be detained at Long Bay Prison Hospital, or such other place as determined by the Mental Health Review Tribunal, until released by due process of law, pursuant to s 39(1) of the Act
  • The Registrar was directed to notify the Minister for Health as soon as possible
  • The Registrar was directed to notify the Mental Health Review Tribunal as soon as practicable and to provide the Tribunal with a copy of the reasons and all exhibits
  • No verdict was required on the alternative charge of wounding with intent to cause grievous bodily harm

Key Takeaways

  • Under s 22(1)(b) of the Mental Health (Forensic Provisions) Act 1990, a special hearing court may return a not guilty by reason of mental illness verdict where the accused, due to a defect of reason from a disease of the mind, did not know the nature and quality of the act or did not know it was wrong, applying the R v Porter test
  • The District Court confirmed that the accused bears the onus of proving the mental illness defence on the balance of probabilities, while the Crown retains the onus of proving the physical elements beyond reasonable doubt
  • Where a delusional belief system directly drives offending conduct, and two independent psychiatric experts agree that the accused lacked knowledge of the nature or wrongfulness of the act, the Porter test may be satisfied even in the face of significant admissions made by the accused
  • Following R v Istudor, a not guilty by reason of mental illness verdict on a principal charge removes the need for any verdict on an alternative charge in the same special hearing
  • A finding of not guilty by reason of mental illness does not result in release; the court is required under s 39(1) to order detention until the Mental Health Review Tribunal determines otherwise through due process

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 33(1)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14(1)(a), 16(1), 21A, 22, 38, 39(1)

Cases
- R v Porter (1933) HCA 1; (1933) 55 CLR 182
- R v Minani [2005] NSWCCA 226
- R v Istudor [2016] NSWDC 1