Dezfouli v R [2007] NSWCCA 86 (12 April 2007)

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Dezfouli v R [2007] NSWCCA 86

FILE NUMBER(S):

2005/747

HEARING DATE(S): 5/3/07

JUDGMENT DATE: 12 April 2007

PARTIES:

Saeed Sayaf Dezfouli (Appellant)

Regina (Respondent)

JUDGMENT OF: McClellan CJ at CL Bell J Price J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70059/02

LOWER COURT JUDICIAL OFFICER: Buddin J

COUNSEL:

In Person (Appellant)

Ms D Woodburne (Crown)

SOLICITORS:

In Person (Appellant)

S Kavanagh (Respondent)

CATCHWORDS:

LEGISLATION CITED:

Criminal Appeal Act 1912

Criminal Procedure Act 1986

Mental Health (Criminal Procedure) Act 1990

CASES CITED:

R v Foy (1922) 39 WN (NSW) 20

R v Greig (1996) 89 A Crim R 254

R v Logan [2004] NSWCCA 101

R v Presser [1958] VicRp 9; [1958] VR 45

R v Riddell [2003] NSWCCA 251

R v Williams [2004] NSWCCA 224

DECISION:

1. Extend the time in which to file the notice of appeal to 10 March 2005

2. Dismiss the appeal.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2005/747 CCAP

McCLELLAN CJ at CL

BELL J

PRICE J

Thursday 12 April 2007

Saeed Sayaf Dezfouli v R

Judgment

1 McCLELLAN CJ at CL: I agree with Bell J.

Introduction

2 BELL J: Saeed Sayaf Dezfouli appeals against special verdicts returned by a jury following a special hearing conducted pursuant to s 21 of the Mental Health (Criminal Procedure) Act 1990 (the Act). The jury found that he was (i) not guilty of manslaughter by reason of mental illness and (ii) not guilty of maliciously damage property by fire by reason of mental illness.

3 The verdicts were returned on 19 March 2004. The notice of appeal is dated 10 March 2005. The appellant seeks an extension of time in which to bring the appeal. He appeared in person on the hearing of his application. The Crown did not oppose the extension of time. I consider that the extension should be granted.

4 The events that are the subject of both charges occurred on 18 January 2002. The appellant was found to have deliberately set a fire in the offices of the Community Relations Commission (the Commission) at Ashfield, and thereby to have caused the death of Radmila Domonkos and extensive damage to the premises.

5 On the day of these events the appellant was charged with the murder of the deceased and with maliciously damaging property by fire with intent to endanger life.

Proceedings under the Mental Health (Criminal Proceedings) Act 1990

6 On 1 May 2003 Hidden J determined, in accordance with the provisions of sections 11A and 12 of the Act (as it then stood) that the appellant was unfit to stand trial. His Honour referred the appellant to the Mental Health Review Tribunal (the Tribunal) and remanded him in custody until effect was given to the determination of the Tribunal.

7 On 19 May 2003 the Tribunal determined, on the balance of probabilities, that the appellant would not become fit to be tried for the offences within 12 months of the finding of unfitness.

8 On 8 July 2003 the Attorney General directed that there be a special hearing in relation to the offences with which the appellant was charged.

9 The special hearing was conducted before Buddin J and a jury. It commenced on 3 March 2004. Mr Toner SC appeared to represent the appellant’s interests at the special hearing. The Crown Prosecutor and Mr Toner conducted the hearing upon the basis that the appellant was mentally ill such that he was not responsible according to law for his acts at the time of lighting the fire. Mr Toner accepted that the Crown had proved beyond reasonable doubt the elements of the offences of manslaughter and malicious damage property by fire. The issue that was litigated at the special hearing was the Crown’s ability to establish that the lighting of the fire was done with reckless indifference to human life and with intent to endanger human life. The jury resolved these issues in favour of the appellant. Mr Toner invited the jury to return verdicts pursuant to s 22(1)(b) of the Act on the alternative counts, namely, that the appellant was not guilty by reason of mental illness.

10 The jury returned verdicts pursuant to s 22(1)(a) that the appellant was not guilty of murder and not guilty of maliciously damage property by fire with intent to endanger human life. Pursuant to s 22(1)(b) the jury found the appellant not guilty on the ground of mental illness of the manslaughter of the deceased and not guilty of maliciously damage property by fire by reason of mental illness.

11 Section 22(2) of the Act provides that a verdict in accordance with subsection (1)(b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under s 38 of the Act.

12 Section 38 provides as follows:

38 Special verdict

(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.

13 Section 39 provides as follows:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the order.

14 On 19 March in accordance with s 39 Buddin J ordered that the appellant be detained at Ward D at the Long Bay Prison Hospital until released by due process of law.

The lay evidence

15 There was a substantial body of evidence led at the special hearing from staff of the Commission and members of the public to establish that it was the appellant who had doused the foyer area of the Commission with petrol and ignited it.

16 Shortly before the fire the appellant was identified as the individual who had purchased a five-litre fuel can filled with petrol from a nearby Mobil Service Station. He was carrying a briefcase at the time.

17 A number of witnesses gave evidence of seeing a person who answered the description of the appellant and who was carrying a briefcase in the foyer area of the Commission shortly before the fire. The appellant had worked some years earlier as an interpreter at the Commission. He was acquainted with Ms Shida Watson. She was present at the time of the fire and saw the appellant there. Another witness, Yue Ting Ng, was present in the foyer of the Commission at the time of the fire. She saw a man standing next to her, holding a can. Moments later she observed flames. She saw the man run out of the building and hug Shida Watson saying, “I set the fire, I set the fire”.

18 Several witnesses identified the appellant from an array of photographs as being the man who had been present in the foyer at the time of the fire. He was preoccupied with his desire to hand some papers to an employee named Sayad Kandil. One witness, Ms Zoghbi, said that she had tried to explain that people may be burning at that moment, but that the appellant continued “going on about these papers”.

19 Shida Watson had known the appellant since around 1985-1986. At that time he had been working as a casual interpreter/translator with the Commission. Subsequently she understood that he had gone to live in America. He had telephoned her from America on a couple of occasions. Her next contact with him was around mid-2000, following his return to Australia. At this time the appellant presented as a very different man to the intelligent and calm individual she had known. He expressed fears that there were people in America who were planning to kill him over the loss of some money. Generally, he appeared to be very distressed.

20 Nahid Hazrati met the appellant in 1986. At that time he appeared to her to be a happy, pleasant and gentle man. She had renewed contact with him in 2000. For a time he had lived with Ms Hazrati and her boyfriend. She considered that his mental condition had deteriorated. He expressed fears of being killed. He talked to himself a lot and she had seen him banging his head against the wall. She was uncomfortable with him: He would be interpret anything she said as evidence that she was plotting against him. She asked him to move out of the house and he refused. Ultimately Ms Hazrati had to seek the assistance of the police to get the appellant out of her house.

21 There was evidence that the appellant was preoccupied with the belief that the CIA and other government agencies were persecuting him.

22 In August 2001 the appellant visited Parliament House, stating that he was going to pour petrol over himself and ignite it. He had sent letters to the Deputy Leader of the Australian Democrats, in which he had made threats to self-immolate.

23 The appellant was arrested at the scene of the fire. He made admissions to Constable Egner of having started the fire with a can of petrol. When asked why he had done it he said, “There is some paperwork inside. They all knew about it. It was planned. Letters were sent to the press, to Peter Ryan, Michael Costa. They all knew about it”.

24 The appellant told Constable Egner that he had purchased petrol from the Mobil Service Station at about 2.30 pm. Later that evening Senior Constable Stephens attended Canterbury Hospital to collect the appellant’s clothing and to take swabs from him. The appellant said, “I have confessed, so why do we have to do this?” He was told that tests would be done to determine if there was evidence of the use of an accelerant. The appellant responded, “Yes. I used petrol”.

25 The appellant was later spoken to by Detectives at the Burwood Police Station. Detective Brown gave evidence that he said, “I didn’t intend to hurt her, but if she dies that is part of it. Just put me before the Court. It doesn’t matter what I say, just charge me”.

The psychiatric evidence

26 Dr Allnutt, a forensic psychiatrist, gave evidence at the special hearing. He had read witness statements, the recorded transcript of the interview between the appellant and the police, various letters written by the appellant and clinical notes.

27 Dr Allnutt prepared a report, dated 23 April 2003, after attending on the appellant at the Psychiatric Unit of the Long Bay Prison Hospital. In his report Dr Allnutt recorded that the appellant had been reluctant to engage with him and that the appellant presented as suspicious and guarded. Dr Allnutt said that he informed the appellant that he had been retained by the Director of Public Prosecutions. The appellant stated that he was not interested in speaking with him. Dr Allnutt left after about five or 10 minutes.

28 Dr Allnutt expressed the opinion that the appellant was suffering from a psychotic mental illness, manifesting itself in the form of persecutory delusions. He concluded on the balance of probabilities that the appellant had been suffering from similar symptoms at the time of the offence. Dr Allnutt considered that the appellant had held his delusional beliefs at least since 1999. He commented on a consistent pattern of evidence of the appellant holding the belief that there was a large conspiracy against him involving political, legal and medical figures. His beliefs were based on flimsy evidence. In Dr Allnutt’s opinion, the beliefs were an essential organising feature of the appellant’s life. Dr Allnutt considered that the appellant had lost insight. He noted that the appellant did not believe that he had a mental illness and that he was able to present in a sane manner and come across as a very intelligent, articulate and politically aware individual.

29 In Dr Allnutt’s opinion the appellant was not faking his condition. Dr Allnutt noted that at least four psychiatrists had reached the same conclusion that he had reached. In cross-examination Dr Allnutt agreed that his opinion (that the appellant was suffering from a mental illness) was based entirely on the observations of others.

30 Dr Tony Mastrioanni, a Consultant Psychiatrist with the New South Wales Corrections Health Service, gave evidence that the appellant had been his patient since early 2003. In Dr Mastrioanni’s opinion, based on his own assessment of the appellant and on the information that had been made available to him, the appellant was suffering from a mental illness characterised by delusional beliefs of a conspiratorial nature. These included that governments were conspiring to assassinate him in order to silence him. Dr Mastrioanni considered the appellant’s disorder to be a psychotic illness. Dr Mastrioanni reported that the appellant incorporated daily events in the Ward, including comments made by prison officers and the behaviour of the doctors, into his paranoid belief system and that these beliefs were false. Dr Mastrioanni considered that the appellant was probably mentally ill at the time of the offence.

31 No evidence was called on the appellant’s behalf at the special hearing.

The jurisdictional issue

32 A preliminary issue raised by the Crown concerned the Court’s jurisdiction to entertain the appeal.

33 The right of appeal in criminal cases is found in s 5 of the Criminal Appeal Act 1912, which provides:

5(1) A person convicted on indictment may appeal under this Act to the court:

(a) against the person’s conviction on any ground which involves a question of law alone, and

(b) with the leave of the court, or upon the certificate of the judge of the court of trial that it is a fit case for appeal against the person’s conviction on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and

(c) with the leave of the court against the sentence passed on the person’s conviction.

(2) For the purposes of this Act a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (Emphasis added)

34 In written submissions the Crown’s contended that the appellant had failed to establish that mental illness was not set up as a defence by him.

35 In R v Foy (1922) 39 WN (NSW) 20 the Court considered the jurisdiction to entertain an appeal conferred by s 5(2) of the Criminal Appeal Act. In that case counsel appearing for the appellant had not set up the defence of insanity in evidence. The accused had given evidence that the incident was an accident. Evidence was led by the Crown that the accused had been detained in the Callan Park Asylum shortly before the subject events. The accused’s counsel addressed the jury on accident, but he also made submissions in support of the defence of mental illness. Cullen CJ (with whom the other members of the Court concurred) considered that insanity had been set up as a defence within the meaning of the subsection, since counsel had addressed the jury upon it. Foy was followed in R v Logan [2004] NSWCCA 101.

36 In R v Riddell [2003] NSWCCA 251 the Crown and counsel appearing for the accused led expert evidence that the accused had been mentally ill at the time of the offence. Greg James J (Hidden and Bergin JJ concurring) noted that although the defence of mental illness had been set up by the appellant’s counsel, one of the grounds raised by the appellant was the assertion that his counsel had acted against instructions in so doing. Greg James J observed:

[22] In the present case the issue having been raised as to fitness and mental illness in my view the court should not simply deal with the present appeal without inquiring into the substance of the defence of mental illness, and in particular as to the course the court might take in the event that the appeal were to be upheld, at least where it might be upheld under s 5(2), but purely upon procedural grounds which after all is what is asserted here.

Greg James J noted the power conferred by s 7(4) of the Criminal Appeal Act: In a case in which it appears to the court that the appellant was mentally ill so as not to be responsible in law for his actions to order that the appellant be kept in strict custody until released by due process of law. His Honour considered that if the appeal were to proceed, and the special verdict were to be set aside, the Court would be constrained to make an order in the same terms as that made by the trial judge. For this reason the Court dismissed the appeal. Riddell was an appeal against a special verdict returned at trial.

37 A verdict returned pursuant to s 22(1)(b) at a special hearing (that an accused is not guilty by reason of mental illness) is taken to be equivalent for all purposes to a special verdict (that an accused is not guilty by reason of mental illness) returned at a trial (s 22(2)). However, there are features of the special hearing which may be thought to distinguish it from a trial for the purposes of s 5(2) of the Criminal Appeal Act. This is because the accused at a special hearing is a person who has been previously found to be unfit to be tried. The finding of unfitness carries with it that the accused person “because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him”: R v Presser [1958] VicRp 9; [1958] VR 45 at 48. The procedure for the conduct of a special hearing under s 21 of the Act includes that the accused person must, unless the Court otherwise allows, be legally represented. The accused person does not enter a plea. He or she is taken to have pleaded “not guilty”. The accused person’s right of challenge may be exercised by the legal practitioner representing him or her. These considerations may be thought to make it incongruous to inquire whether mental illness was set up as a defence by the accused for the purpose of s 5(2) of the Criminal Appeal Act.

38 This Court has proceeded upon the basis that s 5(2) may confer jurisdiction to entertain an appeal from a verdict under s 22(1)(b) of the Act returned at a special hearing in a case in which the accused person did not set up the defence: R v Williams [2004] NSWCCA 224; see too R v Greig (1996) 89 A Crim R 254.

39 In this case, the appellant signed a waiver of client legal privilege to allow Mr Toner and Mr Gourlie to discuss the “instructions given by him” with the Crown. On the hearing of the appeal the Crown Prosecutor informed the Court that, after conferring with Mr Toner and Mr Gourlie, the Crown accepted that the defence of mental illness had not been set up by the appellant.

40 In Williams the Court accepted that the defence of mental illness had been set up for the appellant as distinct from by him. It proceeded to dismiss the appeal on the basis that the evidence adduced at the special hearing, which was available for consideration by the Court on appeal would, inevitably attract the operation of s 7(4) of the Criminal Appeal Act. In this case the Crown Prosecutor did not press the contention that the Court was without jurisdiction given the acceptance that the appellant had not set up the defence. The Crown invited the Court to dismiss the appeal since were it to succeed the Court would be constrained to make an order under s 7(4).

41 Section 7(4) of the Criminal Appeal Act confers a power on the court to quash a conviction and sentence passed at trial and to order that the appellant be detained in strict custody until released by due process of law. On its face it is not directed to an appeal against a verdict returned pursuant to s 22(1)(b) of the Act. I note that s 6A of the Criminal Appeal Act provides that on an appeal under s 5(1) against a conviction or sentence including a verdict under s 22(1) of the Act or an order under s 39 of the Act, the court may make any finding, verdict, order or determination which could have been made in relation to the proceedings before the court of trial. Since the Crown did not maintain its challenge to jurisdiction and the appellant appeared in person we did not have the benefit of full argument on the question of jurisdiction and the scope of ss 6A and 7(4) of the Criminal Appeal Act. I approach the matter upon an acceptance, for present purposes, that the Court has jurisdiction to entertain an appeal from a verdict under s 22(1)(b) of the Act returned at a special hearing.

42 The appellant sought to challenge the verdicts returned at the special hearing on three grounds:

1. The defence lawyer did not follow the instructions of the defendant;

2. The medical report (i.e. mental status examination) was fabricated and is untrue;

3. The appellant’s trial was unconstitutional and unfair.

43 It may be accepted that senior counsel appearing on the appellant’s behalf at the special hearing did not act in accordance with the appellant’s instructions. During the course of the special hearing Mr Toner informed his Honour that the appellant did not wish to be represented by Mr Gourlie or himself. His Honour did not make an order permitting the appellant to appear unrepresented.

44 During the course of the special hearing Mr Toner informed the Court:

I’m in a somewhat unusual situation in this hearing, given that – albeit that I’m here to represent the best interests of Mr Dezfouli, I’m not bound by his instructions, but as I indicated to your Honour at the commencement of the proceedings, I would do my best to reflect Mr Dezfouli’s wishes if I could accommodate both obligations under the Act, to the Court and to him. Now this morning, Mr Dezfouli indicated a number of things ... he is not at all that keen for me to communicate it to you at all because of his view, that you and I and the Crown are part of a broad conspiracy in relation to him ... (T 162).

45 In his closing address to the jury, Mr Toner said this:

What I will be saying to you are things Mr Dezfouli would not like me to say, but have to be said. He doesn’t think he is insane and what I am saying to you is that there is no doubt that he is (T 427.11)

46 The scheme of the Act is designed to ensure that an accused person’s interests are protected in circumstances in which it is recognised that because of mental illness or incapacity he or she lacks the capacity to make reasoned forensic decisions. The special hearing was conducted by Mr Toner in an endeavour to advance the appellant’s interests as he perceived them to be. Counsel was not required to follow the appellant’s instructions.

47 The appellant sought to call Dr Allnutt, members of the nursing staff at the Long Bay Prison Hospital and a Corrective Services officer to give evidence on the hearing of his appeal in support of his second ground. This was with a view to establishing that Dr Allnutt had spent very little time speaking with the appellant and that he did not appear to have spent long reading such clinical notes as were available at the prison hospital. The Court declined to make orders pursuant to s 12 of the Criminal Appeal Act for the attendance of these witnesses.

48 The evidence of Dr Allnutt is summarised at paragraphs [25] – [28] above. It may be accepted that Dr Allnutt spent little time with the appellant at the time of his interview. The appellant queries the basis for the formation of Dr Allnutt’s opinion concerning his mental state at the time of the offence, given that he did not speak with Dr Allnutt. Dr Allnutt’s opinion was not expressed to be based upon the contents of his interview with the appellant.

49 In the course of oral submissions the appellant expanded ground 2 with the contention that he had wanted a second opinion to be obtained concerning his mental state and that Mr Toner and Mr Gourlie had refused to arrange for this to be done.

50 The question of obtaining a second psychiatric opinion was canvassed at the special hearing. The appellant raised the matter directly. He said this:

Your Honour, I have an issue to raise. The Supreme Court proceeding in order to determine whether I was fit or unfit to be tried, was not standard. There was a lot of unprofessional and unethical conduct by the psychiatrist who was appointed to examine me to determine whether I am fit to be tried or not to be tried. I do have an objection to the entire procedure. The doctor, right in front of a couple of inmates and a senior officer in the Long Bay Prison Hospital, approached me and I refused to speak with him. Basically, the conversation took place over three minutes and he wrote nine pages of report. I instructed my solicitor to get second opinion and to file an objection on the conduct of the doctor and that I expected them to be present when I was approached by the psychiatrist as witness to observe the conduct. None of this was met. The entire proceeding and procedure is unconstitutional, unethical and inhumane and improper (T 01/03/04 2-3).

51 Mr Toner confirmed that the appellant had requested that a second psychiatric opinion be obtained. He informed his Honour:

Mr Gourlie and I have both advised Mr Dezfouli that in the circumstances we were prepared to suggest an alternative psychiatrist, because of the broad view he takes of our role in the particular conspiracy he has in mind. We would, of course, make such a suggestion to him, if he asked us to do it, but at the moment he has not made that request and he has asked had the Court will indulge him until tomorrow morning to be able to tell the Court of an alternative psychiatrist who he would think to consult for the purpose of such an opinion. I told him that I would make that application to your Honour to grant him that indulgence. So, he is in your hands in relation to that aspect of the matter.

...

HIS HONOUR: Can you crystallize what he is seeking at the moment.

TONER: To arrange for another psychiatrist to see him for the purpose of preparing a second opinion to compete with that of Dr Allnutt for any one of the three purposes that I have nominated.

52 The Judge adjourned the proceedings on the appellant’s application until the following day to enable enquires to be made about a further psychiatric assessment.

53 The following morning the appellant informed the Court:

Your Honour, I thought about the situation once again and I slept on it overnight. I discussed it with Mr Toner this morning. I would like to withdraw my application and I wish to proceed with the special hearing (T 23.16-21).

54 The fact that a second psychiatric assessment of the appellant was not carried out prior to (or during) the hearing would not be a reason for setting aside the verdict. It was open to place further psychiatric evidence before the Court at the special hearing and a decision was made not to do so.

55 The only submission developed in support of ground 3 related to the appellant’s exercise of the right to silence. He contended that he had exercised his rights in this respect in choosing not to speak with Dr Allnutt, who it will be remembered, informed the appellant of his retainer by the Crown. In the appellant’s submission, the exercise of the right to silence had deprived him of the opportunity of being adequately assessed by a psychiatrist. This challenge appeared to be more directed to the sufficiency of the evidence to sustain the finding that the appellant was unfit for trial. As I have noted, Dr Allnutt’s opinion was not dependent upon his assessment of the appellant at interview.

56 None of the matters that the appellant raised in support of his grounds of appeal disclosed that the verdicts were unreasonable or could not be supported having regard to the evidence or that there had been any wrong decision of any question of law or that on any ground whatsoever there was a miscarriage of justice. The evidence at the special hearing that the appellant was mentally ill at the time of the offences so as not to be responsible according to law for his actions was overwhelming. Since I am of the opinion that there is no merit to any of the grounds raised by the appellant, it is not necessary to consider the scope of the power conferred by s 7(4) or s 6A of the Criminal Appeal Act.

57 For these reasons, I propose the following orders:

1. Extend the time in which to file the notice of appeal to 10 March 2005;

2. Dismiss the appeal.

58 PRICE J: I agree with Bell J.

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LAST UPDATED: 12 April 2007