R v Tarantello [2010] NSWSC 469 (25 May 2010)

Last Updated: 26 May 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Tarantello [2010] NSWSC 469


JURISDICTION:
CRIMINAL LIST

FILE NUMBER(S):
2009/54795

HEARING DATE(S):
14 May 2010

JUDGMENT DATE:
25 May 2010

PARTIES:
Regina
Giuseppe Tarantello


JUDGMENT OF:
Davies J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
J Manuel SC (Applicant)
P Ingram (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (Crown)


CATCHWORDS:
CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - Accused suffering from Treatment-resistant Schizophrenia - Accused unfit to be tried.

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Mental Health (Forensic Provisions) Act 1990

CATEGORY:
Procedural and other rulings

CASES CITED:
Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230
Ngatayi v R (1980) 147 CLR 18
R v Presser [1958] VicRp 9; [1958] VR 45
Robinson v R ([2008] NSWCCA 64

TEXTS CITED:


DECISION:
(1) I find that the Accused Giuseppe Tarantello is unfit to be tried for the offence of the murder of Francesco Amore on 13 May 2009. (2) In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990, I refer this matter to the Mental Health Review Tribunal. (3) Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act. (4) I direct the court registry to provide the following documentation to the Tribunal: (a) A copy of this finding. (b) A copy of any orders made for detention or bail. (c) A transcript of these proceedings. (d) A copy of any psychiatric reports tendered to the Court during these proceedings. (e) A copy of any additional reports tendered as evidence to the Court pertaining to the person’s fitness to stand trial, and (f) The Crown Case Statement.



JUDGMENT:

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

CRIMINAL LIST

DAVIES J

25 MAY 2010

2009/00054795 R v TARANTELLO

JUDGMENT

1 Giuseppe Tarantello ("the Accused") is charged with 1 count of murder contrary to s 19A of the Crimes Act 1900 (NSW) in relation to the death of Francesco Amore ("the Deceased") on 13 May 2009 at Haberfield. The Accused is the son of the partner of the Deceased.

2 The question of fitness of the Accused to be tried having been raised, on 14 May 2010 I conducted an enquiry under the provisions of the Mental Health (Forensic Provisions) Act 1990 as to whether the Accused was unfit to be tried for the offence of murder.

The criminal case

3 At the time of his death the Deceased resided at 44 Dudley Street, Haberfield, with his partner, Paola Tarantello, who is the mother of the Accused. The Accused then resided alone at 55 Howley Street, Five Dock, in premises that were owned by his mother.

4 Some years before the death of the Deceased, the Accused had been diagnosed as suffering from paranoid schizophrenia. At the time of the death of the Deceased, the Accused was receiving an injection of medication (Fluanoxol Depot - 40mg) for that illness every second Wednesday at Haberfield Medical Centre and was also prescribed oral medication (Ability - 2 x 20 mg nocte) to be taken daily. However, as to the latter medication, at the time of the death of the Deceased the Accused was reportedly only taking half of the dosage that had been prescribed for him.

5 On the date of the offence, Wednesday 13 May 2009, the mother of the Accused was due to travel to Berrima by bus for a daytrip in the nature of a pilgrimage to a holy site.

6 At about 6:00am on Wednesday 13 May 2009, having stayed overnight with his mother and the Deceased at the Haberfield residence, the Accused told his mother that he was going to a nearby shop and left.

7 Once he returned to the Haberfield residence, the Accused apparently had a conversation with his mother in which he challenged her about the necessity for her to travel to Berrima on that day.

8 The Deceased heard that conversation and a short time later he said to the Accused's mother in relation to that conversation, "...Don't listen to him. He's a spoilt brat...".

9 At about 7:30am, the Deceased drove his vehicle with the Accused and his mother from the Haberfield residence to a bus stop nearby in Haberfield.

10 During that journey, the Deceased apparently offered to take the Accused to the Medical Centre for his fortnightly injection which was due that day and suggested to the Accused that they both prepare dinner for that evening so that they could all have that meal on the return of his mother from Berrima.

11 After leaving the mother of the Accused at the bus stop and sometime before 8:15am, the Accused and the Deceased apparently returned to the Haberfield residence. On their return, the Deceased parked his vehicle in the driveway beside the house. The vehicle of the Accused (a Toyota RAV 4) was at that stage still parked on Dudley Street at the front of the Haberfield residence.

12 Between 8:15am and 8:32am a number of telephone calls were made on the landline at the Haberfield residence and on the mobile telephone service of the Accused. Three of these calls were from the landline to 000, the third one being at 8:32am when the Accused told the 000 operator that there had been an accident and then there had been a murder. He identified the Deceased as his stepfather Frank Amore.

13 The Accused also made a call at 8:28am from the landline at the Haberfield residence to his brother’s home where he spoke to his brother’s wife and told her that he was out driving. She noticed that the Accused spoke as if he was out of breath and that he sounded sufficiently strange that she rang her husband and asked him to telephone the Accused.

14 At 8:31am, the brother of the Accused (Mr. Carrado Tarantello) (at the instigation of his wife) rang and spoke to the Accused who again said that he was out driving. His brother noticed nothing unusual about the Accused.

15 At about 8:40am, Police attended the Haberfield residence and found the

Accused standing outside the front of the house. There was a large amount of blood on his hands and clothing. He had bruising to his left eye and small cuts to the palms of his hands.

16 Police entered the house and found the Deceased slumped against the living room wall with multiple stab wounds to his head. Ambulance Paramedic staff also attended the scene and confirmed that life was extinct.

17 A broken handle from a pair of scissors was found by Police near the Deceased. The handle had blood on it. The remainder of the pair of scissors was located next to the kitchen sink and they also had blood on them. The scissors and handle were seized.

18 On initial entry to the Haberfield residence, Police observed that the dining table and chairs were lying over on their sides and there were broken pieces of china on the floor.

19 When subsequently being moved, Police located under the body of the Deceased a set of car keys that operated the vehicle of the Accused.

20 The Accused was arrested and cautioned at the scene. In response to

Police questions, the Accused said that he did not wish to say what had

happened to the Deceased. He was then conveyed to Burwood Police

Station.

21 During a recorded interview with the Police the Accused stated that he needed time to think things through and that he did not wish to answer questions about what had happened to the Deceased. However, the Accused denied killing the Deceased.

22 Forensic samples were taken from the Accused, including a buccal swab, blood and fingernail clippings.

Post Mortem Examination and Forensic Analyses

23 The autopsy was conducted on 14 May 2009 by Forensic Pathologist, Doctor Kendall Bailey.

24 The Deceased was found to have multiple stab wounds to the head, neck and torso; many of those wounds were in pairs with various distances between the twin wounds. Some of those wounds had entered the cranial and the abdominal cavities. One stab wound in the neck terminated in the right jugular vein. Some of the stab wounds to the head and torso appeared to have been inflicted post mortem.

25 The paired pattern of some of the stab wounds was consistent with scissors having been used to inflict those injuries.

26 The cause of death was determined to be multiple stab wounds to the head and neck.

27 In due course, DNA profiles were produced from samples obtained from the blades of the pair of scissors. Those samples contained a mixture of DNA profiles that originated from two individuals. Upon comparison with relevant control samples, it is 72 million times more likely to obtain that mixed profile if it originates from the Deceased and the Accused than from the Deceased and an unknown unrelated individual.

28 DNA profiles were also produced from samples obtained from the fingernail clippings of the right hand of the Accused. Those profiles demonstrated that DNA material was also from two male contributors. The Accused could not be excluded as one of those contributors. Assuming that the Accused is one of those contributors, the DNA profile of the second contributor was determined and the DNA profile of the Deceased could not be excluded as that second contributor. Indeed, the expected occurrence of the DNA profile of that second contributor occurring in the general population is fewer than one in 10 billion individuals.

The legal test

29 The legal test on which unfitness is to be judged is not in doubt. It is to be found in R v Presser [1958] VicRp 9; [1958] VR 45 at 48, approved in Ngatayi v R (1980) 147 CLR 18 and Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 at 246.

30 In Robinson v R ([2008] NSWCCA 64 RS Hulme J conveniently tabulated the criteria where he said at [24]:

A person accused needs to be able:

(i) To understand what it is that he is charged with;

(ii) To plead to the charge;

(iii) To exercise his right of challenge;

(iv) To understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with;

(v) To follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities;

(vi) To understand ... the substantial effect of any evidence that may be given against him;

(vii) To make his defence or answer to the charge.

The medical evidence

31 The Accused was examined by Dr Olav Nielssen for the Defence on 3 July 2009 and 13 August 2009 resulting in a report of 20 August 2009, and again on 19 January 2010 leading to a report on 22 January 2010. The Accused was examined by Professor David Greenberg for the Crown on 14 March 2010 with Professor Greenberg’s report being dated 26 March 2010.

32 However, 2 earlier reports were tendered from Dr Milton Roxanos of 2 June 2008 and 2 February 2009. Dr Roxanos was then the Accused’s treating psychiatrist. Although Dr Roxanos does not directly address the issues that need to be addressed for the purpose of the present enquiry, and his reports were directed to earlier offences with which the Accused were charged, those reports were useful in providing part of the history of the Accused’s mental condition as it has developed to the present time.

33 Dr Roxanos said that the Accused had first been referred to him on 8 April 2008 when he gave an 18 year history of delusions and hallucinations preceded by the use of LSD and cannabis. Over the years he had seen numerous psychiatrists and received many treatments but had been non-compliant with medication.

34 At that time his symptoms involved the belief that the world was a dream and he repeatedly made mention of “shadows under my eyes” as having special significance but which he could not clarify in words. He believed that people were entering his house surreptitiously and moving the frames of the various paintings hanging in the house. Dr Roxanos diagnosed him with paranoid schizophrenia and noted that he was receiving injections of Flupenthixol (Fluanxol).

35 There appeared to be a further incident that led to charges on 14 September 2008 in respect of which Dr Roxanos provided a further report on 2 February 2009. At about the time of that incident Dr Roxanos had seen him and the Accused had voiced concern that he was being "telepathically inflicted with pain".

36 Dr Roxanos thought then and subsequently in November 2008 that the Accused was still harbouring delusions and hallucinations although the symptoms had diminished.

37 When Dr Nielssen first saw him in July and August 2009 he considered that the Accused suffered from Chronic Treatment-resistant Schizophrenia. His opinion seemed chiefly directed towards whether the Accused had a defence to the murder charge based on mental illness. However, Dr Nielssen also expressed the opinion on the basis of his recent interviews that there was some doubt about the Accused’s current fitness for trial. He said:

He has sufficient intelligence and legal experience to understand the general nature of the proceedings. He also indicated that he would consider entering a plea of not guilty on the grounds of mental illness. However, he was thought to be unable to provide frank or reliable instructions about the events because of the effect of residual mental illness. He has a condition that generally responds to treatment and he should become fit for trial after appropriate treatment.

38 Dr Nielssen’s second report of 22 January 2010 was prepared for the purpose of determining the Accused’s fitness for trial. Dr Nielssen directed questions to the Accused to test his responses to the matters considered significant in Presser. In that regard, Dr Nielssen recorded the following:

When asked if he was affected by symptoms of mental illness at the time of the offence, Mr Tarantello said "I don't remember... I don't know". When taken to the symptoms described by Dr Roxanos in his report, Mr Tarantello said that he did not remember holding those beliefs and added "the tablets are helping me".

Mr Tarantello confirmed that he had some experience in court and confirmed that he had been asked about his knowledge of the procedure followed in court. However, he was unable to provide a spontaneous account of the roles of the participants in a trial. When prompted, he said that a judge "decides how long you serve" and that a prosecutor "works on behalf of the police". He was unable to name his solicitor, despite agreeing that he had the same solicitor for some time and had met her on a number of occasions. He said that he also has a female barrister, who he said "talks on my behalf".

He said that a jury decided if you were guilty or not guilty but was unable to say how many people there were in a jury, where they came from or how they were selected. When asked what a witness might be asked to do in a trial, he said "I don't know" and he did not provide any more elaborate answers on prompting. He said after some time that an oath "was so you don't tell lies" and when asked what might

happen if you did lie, he said "you would be caught out".

39 Dr Nielssen thought that the Accused’s mental state had not improved in the previous 6 months and, if anything, it had deteriorated in that time. He thought the Accused seemed more vague, unforthcoming and perplexed during the interview.

40 His conclusion as to the Accused’s fitness to stand trial was this:

In my opinion Mr Tarantello is currently unfit for trial, as the impairment in intellectual function arising from his under-treated mental illness would prevent him from following any proceedings in a meaningful way, understanding legal advice or providing reliable instructions to his legal representative.

Mr Tarantello has a condition for which treatment is available in hospital and there is a reasonable chance his mental state will improve to the extent that he would become fit for trial within twelve months.

41 Professor Greenberg diagnosed the Accused as suffering from Chronic Schizophrenic Disorder with treatment-resistant residual symptoms. He said he assessed the Accused with regard to the Presser and Kesavarajah criteria as follows:

Mr Tarantello understood the nature of the charge he is currently facing. When I asked him about his plea to the charge, he stated that he did not know. He understood the difference between a guilty and not guilty plea.

When I asked him about a 'not guilty by reason of mental illness' plea, he stated that he was unsure, but thought it was that he was "mentally sick". When I asked him about the consequences of such a plea, he stated that his solicitor had mentioned it to him, but he could not recall. I then explained the possible consequences of a 'not guilty by reason of mental illness' plea but he was unable to repeat the explanation at a later time in the interview.

In my opinion Mr Tarantello would not be able to exercise his right to challenge the jurors. He did not understand how many jurors there were, but in general terms, he understood that they were to decide whether he was guilty or not guilty.

He generally, did not understand the nature of the proceedings that it is an enquiry into the veracity of allegations against him. When questioned about the purpose of the impending court case, he stated that it was over his stepfather, but could not explain what the Court was trying to decide.

When I asked about his general understanding of the course of the proceedings and the functions of the court officers, Mr Tarantello reported that his lawyer would talk on his behalf and "present me". He knew the name of his solicitor, but could not recall the name of his barrister. When asked about the role of the Crown Prosecutor, he stated, "they talk on behalf of the police". He stated that the role of the Judge, was to decide how long he went to gaol. When I asked him how that was decided, he stated he was unsure. Mr Tarantello understood that he was the Accused and that the witnesses would "tell what happened". He therefore has a rudimentary but deficient understanding of the functions of the various officers in court.

I am of the opinion that, given his poverty of ideation and blunted facial expressions, he would have difficulty appreciating the substantial effect of evidence.

I am also of the opinion that Mr Tarantello probably would have difficulty instructing his legal counsel and he could not give a version of the facts.

I am of the view that he would have some difficulty deciding what defence he should make, and if required to give evidence, he would be unable to do so at this time.

I am therefore of the opinion that, on the balance of probability, Mr Tarantello is currently unfit to plead and unfit to stand trial.

42 In addition to the medical reports I had the opportunity of observing the Accused during the hearing before me. For the most part he sat staring at the floor in front of him and did not appear to react in any way to anything that was said or anything that happened. He occasionally looked around the Court but without reference to any external activity. He appeared not to be connected to what was happening around him. Those observations, as inadequate as they are, seem to me to be entirely consistent with what I read in the medical reports.

43 In forming my opinion and making my determination on the question of unfitness I have had regard to the principles in R v Presser and the other cases to which I have referred. In the light of the opinions expressed concerning the Accused by Dr Nielssen and particularly Professor Greenberg following their recent examinations of him, I find on the balance of probabilities that he is unfit to be tried for the offence with which he stands charged.

Orders

44 In those circumstances I make the following orders:

1. I find that the Accused Giuseppe Tarantello is unfit to be tried for the offence of the murder of Francesco Amore on 13 May 2009.

2. In accordance with s 14 of the Mental Health (ForensicProvisions) Act 1990, I refer this matter to the Mental Health Review Tribunal.

3. Pursuant to s 14(b)(iii) of that Act, I remand the Accused in custody pending the determination of the Mental Health Review Tribunal under s 16 of that Act.

4. I direct the Court Registry to provide the following documentation to the Tribunal:

(a) A copy of this finding.

(b) A copy of any orders made for detention or bail.

(c) A transcript of these proceedings.

(d) A copy of any psychiatric reports tendered to the Court during these proceedings.

(e) A copy of any additional reports tendered as evidence to the Court pertaining to the person’s fitness to stand trial, and

(f) The Crown Case Statement.

**********- 1 -

LAST UPDATED:
25 May 2010