Citation: R v Kapesz [2020] NSWDC 92
Court: District Court of New South Wales
Date: 8 April 2020
Judge(s): Mahony SC DCJ
Background
The accused faced three charges arising from separate attacks on strangers in Brookvale and central Sydney on 5 and 6 June 2018: two counts of wounding with intent to cause grievous bodily harm and one count of reckless wounding. Each attack involved the accused approaching an unknown victim from behind and either stabbing or striking him. The accused was arrested after the third incident and made statements to police attributing his conduct to voices in his head and delusional beliefs about his military affiliations.
Following arrest, the accused was found unfit for trial in December 2018. The Mental Health Review Tribunal subsequently determined he would not become fit within twelve months, triggering a special hearing under the Mental Health (Forensic Provisions) Act 1990. The special hearing took place on 30 and 31 March 2020.
The sole substantive issues at the special hearing were whether the defence of mental illness was available to the accused and whether he should be found not guilty by reason of mental illness on each count.
Legal Issues
- Whether, at the time of each offence, the accused was labouring under a defect of reason caused by disease of the mind within the meaning of the M'Naghten rules
- Whether the accused knew that his actions were morally wrong at the relevant time
- What order should be made under section 39 of the Mental Health (Forensic Provisions) Act 1990 following a special verdict
Decision
The Mental Illness Defence
Both expert psychiatrists, Professor Greenberg (retained by the prosecution) and Dr Ellis (retained by the defence), agreed that the accused suffered from chronic schizophrenia disorder with treatment-resistant psychotic symptoms at the time of the offences. The Crown conceded that expert opinion was unanimous in supporting the defence of mental illness (at [43]). Both experts diagnosed schizophrenia as a disease of the mind and agreed the accused was experiencing an acute psychotic episode during the offending, consistent with his having ceased oral anti-psychotic medication and being overdue for his depot injection just prior to the incidents (at [26]).
Defect of Reason and Moral Knowledge
Professor Greenberg acknowledged that the accused likely knew the legal character of his acts (evidenced by his fleeing scenes and concealing the knife), but opined he did not know that his acts were morally wrong, acting from a psychotic mind controlled by commanding voices and delusional beliefs (at [29]). Dr Ellis similarly concluded that the accused's fixed delusional beliefs, including that he was a hitman and a member of the French Foreign Legion and United States Army, meant he likely did not consider his actions morally wrong (at [36]).
Court's Findings
The District Court accepted the expert opinions and found, on the balance of probabilities, that the accused was suffering from a disease of the mind and was labouring under a defect of reason at the time of each offence (at [55]). The court was satisfied that the accused acted upon auditory hallucinations commanding him to attack each victim and held the defence of not guilty by reason of mental illness established on all three counts (at [55]). Because this finding was made, the court had no occasion to consider the alternative Count 3 (at [56]).
Disposition
Having returned special verdicts of not guilty by reason of mental illness, the court was required by section 39 of the Mental Health (Forensic Provisions) Act 1990 to make an immediate order for the accused's future. Both parties accepted that ongoing assertive psychiatric care was required, and the court ordered detention in a correctional facility or such other place as determined by the Mental Health Review Tribunal (at [58]-[59]).
Orders Made
- The accused found not guilty of Count 1 (wounding with intent to cause grievous bodily harm, 5 June 2018, Brookvale) by reason of mental illness
- The accused found not guilty of Count 2 (reckless wounding as to actual bodily harm, 6 June 2018, Sydney) by reason of mental illness
- The accused found not guilty of Count 4 (wounding with intent to cause grievous bodily harm, 6 June 2018, Sydney) by reason of mental illness
- Pursuant to section 39 of the Mental Health (Forensic Provisions) Act 1990, the accused ordered 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 directed to notify the Attorney General, the Minister for Health, and the Mental Health Review Tribunal of the orders, and to provide the Tribunal with the court's reasons and the expert reports
Key Takeaways
- Unanimous expert psychiatric opinion that an accused suffered a disease of the mind and a defect of reason at the relevant time is a significant factor supporting a special verdict; here the Crown itself conceded that the evidence unanimously favoured the defence (at [43]).
- Under the M'Naghten rules as applied in New South Wales, the relevant question is not only whether the accused knew the legal character of his acts but whether he knew they were morally wrong; an accused who acts entirely under the compulsion of psychotic commands and delusional beliefs may satisfy this limb even where some post-offence conduct (such as flight and concealment) suggests some awareness of legal wrongdoing (at [29], [36]).
- Where the defence of mental illness is established on a specific intent charge, the court need not go on to consider whether the evidence of mental illness is separately relevant to the question of specific intent; that further inquiry arises only if the mental illness defence fails (at [50]).
- A finding of not guilty by reason of mental illness at a special hearing under the Mental Health (Forensic Provisions) Act 1990 obliges the court to make an immediate order under section 39 concerning the accused's detention or release; detention in a correctional facility or at a place determined by the Mental Health Review Tribunal is an available order where ongoing psychiatric care is clinically indicated (at [58]-[59]).
- Non-compliance with anti-psychotic medication, including missing a depot injection prior to offending, was treated as clinically relevant context supporting the conclusion that active psychotic symptoms were present at the time of the offences (at [26], [55]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990
- Crimes Act 1900
Cases
- Hawkins v R (1994) 179 CLR 500
- R v Kesavarajah (1994) 181 ALR at 246
- R v Minani (2005) 63 NSW LR 490
- R v M’Naghten [1943] 8 ER 718
- R v Presser [1958] VR 45
- R v Zdrakovic [2019] NSWSC 736