R v Graf

1. [1]

   On 16 August 2018, the accused, James Patrick Graf, was charged with the murder of his father, Lance Graf, at the home at which they were living in Gol Gol, a town in southern New South Wales near the Victorian border. In due course he was committed to this court for trial.

2. [2]

   As will be seen, the accused has a long history of mental illness and an established diagnosis of schizophrenia. An issue arose as to his fitness to stand trial, and on 9 December 2019 that issue was tried before Hamill J: R v Graf [2019] NSWSC 1767. His Honour received the reports of two respected forensic psychiatrists: Dr Sathish Dayalan, retained on behalf of the accused, and Dr Yvonne Skinner, retained by the Crown. In a report of 1 April 2019, Dr Dayalan expressed the view that the accused was not fit to stand trial. Dr Skinner arrived at the same view, expressed in a report of 16 August 2019.

3. [3]

   There was subsequently some improvement in the accused’s condition while in custody, such that he appeared to have become fit. However, in late November there was a marked deterioration in his condition. Before Hamill J Dr Dayalan and Dr Skinner gave evidence confirming their original view that he was unfit, as did his treating psychiatrist, Dr Reading. That was his Honour’s conclusion in his judgment of 9 December 2019.

4. [4]

   In the course of that judgment, at [12]-[13], his Honour referred to the well established authority on the issue of fitness: R v Presser [1958] VR 45 at 48 and Kesavarajah v The Queen (1994) 181 CLR 230. His Honour was satisfied that the accused understood that he was charged with the murder of his father. However, he was doubtful that he had the capacity to understand the court procedures and the nature of the proceedings. His Honour also doubted that he had the ability to understand the substantial effect of evidence against him and was satisfied that his capacity to make out his defence and to instruct his legal representatives was “severely compromised”: [25]-[26]. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), his Honour referred the accused to the Mental Health Review Tribunal and remanded him in custody.

5. [5]

   At a review that same month, the Mental Health Review Tribunal directed that the accused be transferred from the unit where he was being held to Long Bay Hospital for care and treatment. That placement and treatment proved to be beneficial, such that at a further review on 19 June 2020, the Tribunal determined that he had become fit to be tried. The Tribunal received evidence of his progress under treatment by Dr Reznik and his registrar, Dr Chowdhury.

6. [6]

   The Tribunal reported as follows:

7. [7]

   In accordance with the relevant provisions of the Mental Health (Forensic Provisions) Act, the Tribunal notified the court of its determination and the matter came before me two days ago, on 13 October 2020.

8. [8]

   In further recent reports, Dr Dayalan and Dr Skinner also concluded that the accused is now fit. Dr Dayalan interviewed the accused on 4 September 2020 and, in a report of 11 September, found that he understood the nature of the charge, and was able to identify his plea and to give a rational reason for his decision. The doctor considered that he would have the ability to follow the court proceedings in a general sense and understand the significance of evidence presented against him, although he may need regular breaks during the proceedings so that his counsel could “explain and repeat key information”. The doctor observed that at the interview his thinking process did not appear to be significantly impaired by his psychotic illness, he was able to demonstrate logic in his reasoning, and would be considered to have “sufficient capacity to decide on a defence”.

9. [9]

   Dr Skinner interviewed the accused on 17 September 2020, and provided a report of 25 September. The doctor reported that during her interview he was able to engage in reasonable conversation and showed no signs of psychosis. She raised the issue of his ability to cope with the stress of a trial, noting that he would likely be distressed by the material presented and might require additional medication in the event of a prolonged trial. Nevertheless, she noted that he had confidence in his legal representatives and believed that, with assistance from his treating doctors and those legal representatives, he is “fit to plead and to stand trial”.

10. [10]

    Dr Skinner concluded:

11. [11]

    I am satisfied that the accused is fit to stand trial, and I announced that finding on 13 October.

The trial

1. [12]

   Accordingly, the accused was then arraigned. He pleaded not guilty by reason of mental illness, and the defence of mental illness is the only issue in the case. The trial proceeded before me, sitting without a jury. There is agreement between the parties that the defence is made out.

2. [13]

   I received in evidence an agreed statement of facts and the material upon which it is based. Apart from the evidence bearing on the defence of mental illness, that statement is an adequate summary of that material.

3. [14]

   The statement of facts records:

   1. (1)

      The accused was born on 4 March 1992, and the deceased on 8 December 1958.

   2. (2)

      The accused lived at 12 Wadsworth Drive, Gol Gol with the deceased and his mother and wife of the deceased, Lorraine Graf.

   3. (3)

      At the age of 19 years the accused was diagnosed as suffering from schizophrenia. The accused was taking medication for this condition up until about one month before the offence.

   4. (4)

      On 16 August 2018 at 6:06pm the accused called triple zero and initially reported that unknown persons had stabbed his father before requesting police attendance. About 6.l5pm, Constables Matthews and Swarbrick were called to 12 Wadsworth Drive, Gol Gol. Upon their arrival they found the deceased on the dining room floor with numerous wounds to his neck and extensive bruising to the right side of the face. There was a large amount of blood pooled on the floor around the deceased. The accused was found inside the house and detained. While Constable Swarbrick returned to the police vehicle to get a first aid kit, the accused was asked by Constable Matthews what had happened. The accused responded, "He was trying to sexually assault my friend and take me with him." He later volunteered, "I punched and stabbed him".

   5. (5)

      Constable Swarbrick returned, and Matthews asked where the weapon was. The accused replied, "I threw it over there", nodding towards the kitchen area. Matthews asked what it was, and the accused replied, “a knife".

   6. (6)

      The accused complained of a sore hand and Matthews asked what was wrong. The accused replied, "It's all swollen from punching him in the face".

   7. (7)

      The accused was placed under arrest, cautioned and eventually conveyed to the Dareton Police Station.

   8. (8)

      First aid attempts were made by police, however the deceased died at the scene.

   9. (9)

      Police recovered a stainless steel kitchen knife from the home which appeared to have blood stains on it. The tip of the knife was broken off and could not be found at the scene.

   10. (10)

       On post mortem the medical examiner noted:

   11. (11)

       Subsequently an expert compared the broken knife and the blade tip which were found to match with the fractured edge, striations and stretch marks all aligning.

   12. (12)

       The accused was spoken to whilst in custody where he was arrested for the murder of Lance Graf and cautioned.

   13. (13)

       The accused participated in an electronically recorded interview with his brother in law as a support person. During the interview the accused appeared to police to be incoherent and confused. His responses included:

The Defence

1. [15]

   It is not in dispute, and I am in any event satisfied beyond reasonable doubt, that the accused caused the death of the deceased by inflicting upon him the violence recorded in the agreed statement of facts. It is at this stage that the defence of mental illness falls to be determined: Hawkins v The Queen (1994) 179 CLR 500. The effect of s 38 of the Mental Health (Forensic Provisions) Act is that the accused must be found not guilty by reason of mental illness if it is established that at the time he inflicted that violence he was “mentally ill, so as not to be responsible, according to law” for his actions. The accused bears the burden of establishing the defence on the balance of probabilities.

2. [16]

   Whether the accused was not responsible in law for his actions because of mental illness is to be determined according to the common law. The principles have their origin in the nineteenth century M’Naghten Rules which have been consistently applied in modern authority. Expressed in contemporary terms, what must be established is that, due to a disordered state of mind engendered by a mental illness, the accused either did not understand the nature and quality of his acts or, if he did, he did not know that they were wrong. (The nineteenth century formulation uses the expressions “defect of reason” resulting from a “disease of the mind”.)

3. [17]

   The focus in the present case is upon the second of those alternatives, his knowledge of the wrongfulness of his conduct. The determination of that issue was elucidated by Sir Owen Dixon in his summing up to a jury in R v Porter (1933) 55 CLR 182 at 189-190, as follows:

4. [18]

   In their initial reports both Dr Dayalan and Dr Skinner traced the accused’s psychiatric history over the years leading up to the time of the offence, based not only on the accused’s account but also on available medical records and, in Dr Skinner’s case, the observations of his mother and other relatives recorded in statements which are in evidence. I note that in her statement his mother said that she and the deceased “never had a problem or had any hassles” with the accused. She concluded the statement with the observation that she could not believe that the accused “would do what he has done”. She found it “so hard to believe”.

5. [19]

   In her report, Dr Skinner noted signs of mental illness in the accused from the age of 14, and his diagnosis of schizophrenia at the age of 19. She also noted trials of medication from 2015, including clozapine which, unfortunately, caused cardiac complications. He had shown only a limited response to multiple other medications and, as noted above, had ceased taking any medication at least a month prior to the offence.

6. [20]

   It is unnecessary to examine this history any further. Both doctors recorded the well established diagnosis of schizophrenia. Both of them also described his presentation and treatment after his arrest, but that need not be examined for present purposes.

7. [21]

   Dr Dayalan and Dr Skinner were agreed that the defence of mental illness was available to the accused. In his first report Dr Dayalan wrote:

8. [22]

   Dr Dayalan considered that the accused’s actions at the time of the offence and his limited recollections in the interview indicated that he had an understanding of the nature and quality of his actions at the time. However, he concluded that, given the “acute confusion associated with his psychosis and a number of delusional beliefs involving his father”, he was “probably unable to appreciate the moral wrongfulness of his actions”.

9. [23]

   Dr Skinner dealt with the defence briefly in a report of 18 November 2019, but more comprehensively in her report of 25 September 2020. In that report she noted the reports of relatives of the accused becoming more disturbed around the time of the offence, suggesting that his mental state had been deteriorating. She also noted that his behaviour during the offence was quite out of character, as he was reportedly never violent or aggressive. Equally, it was reported that he had a good relationship with his father and that his father had been supportive of him.

10. [24]

    Dr Skinner described his recorded interview with police as “at times incoherent”. She observed that he did not provide a reasonable account of what had happened and used unusual language. She considered that he “demonstrated thought disorder, there was no logical sequence in his explanation and he was not able to explain what had happened or why he had acted as he did”. Applying the legal test for the defence, she considered that at the time of the offence “Mr Graf either did not know the nature and quality of his actions, or if he did know the nature and quality, he did not know that the acts were wrong”.

Verdict

1. [25]

   The evidence presented on this issue is compelling, as the Crown prosecutor accepts. I am satisfied that this offence was the product of the accused’s mental illness. Like Dr Dayalan, I consider that he did know the nature and quality of his actions at the time but I am satisfied that he did not know that they were wrong, applying the test enunciated by Sir Owen Dixon in Porter. The defence of mental illness is made out.

2. [26]

   Accordingly, I find the accused not guilty by reason of mental illness. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act, I order that the accused be detained at Long Bay Hospital, or such other place as may be determined by the Mental Health Review Tribunal, until released by due process of law.