Murder Proven but Not Criminally Responsible Due to Mental Health Impairment

The Court found the act proven but not criminally responsible due to mental health impairment, citing the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No. 1) [2021] NSWSC 1292 Hearing dates: 11 October 2021 Date of orders: 13 October 2021 Decision date: 13 October 2021 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: 1 On the charge that [NAME] on 27 May 2020, at [NAME] in the State of New South Wales did murder [NAME], the Court finds the act proven, but [NAME] not criminally responsible for it. 2 Verdict entered on indictment: "Act proven but not criminally responsible". Catchwords: CRIME – judge alone trial – murder – deceased stabbed multiple times – defence of mental health impairment under s.28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("MHCIFP Act") – diagnosis of Bipolar 1 Disorder or Schizoaffective Disorder – parties agree defence available under s. 31 MHCIFP Act – function of Court at trial where s.31 applies – unanimous medical evidence that [NAME] subject to "mental health impairment" – unanimous medical evidence that [NAME] did not know that act causing death was wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong (s.28(1)(b) MHCIFP Act) – Court satisfied that defence of mental impairment established (s.31(c) MHCIFP Act) – special verdict entered under ss.30 and 31 MHCIFP Act of "act proven but not criminally responsible" Legislation Cited: Criminal Procedure Act 1986 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Uniform Civil Procedure Rules 2005 Cases Cited: Carter v R [2019] NSWCCA 11 Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 [NAME] v R; R v Da-Pra [2014] NSWCCA 211 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 Lucas v The Queen (1970) 120 CLR 171; [1970] HCA 14 M'Naghten's Case (1843) 8 ER 718 R v Hall (1988) 36 A Crim R 368 R v Jenkins (1963) 64 SR(NSW) 20 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Tonga [2021] NSWSC 1064 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Tumanako v R (1992) 64 A Crim R 149 [NAME] v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Texts Cited: New South Wales Law Reform Commission, Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibility and Consequences", 2013 Category: Principal judgment Parties: Regina (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2020/158889 Publication restriction: ---

Judgment 1. JOHNSON J: On 11 October 2021, [NAME], was arraigned on an indictment which charged that, on 27 May 2020, at [NAME] in the State of New South Wales, he did murder [NAME]. [NAME] pleaded not guilty on the grounds of mental health impairment.

2. On 3 September 2021, [NAME] signed a written election to be tried by Judge alone having received advice in relation to the election from his legal representatives. The Crown consented to a Judge-alone trial so that the Court was required to proceed by Judge-alone trial for the purpose of s.132(2) Criminal Procedure Act 1986.

3. Prior to the trial, the Court was informed that the Crown and counsel for [NAME] agreed that the proposed evidence in the proceedings established a defence of mental health impairment so that the remaining question was whether the Court, after considering that evidence, was satisfied that the defence of mental health impairment was established for the purpose of s.31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("MHCIFP Act").

Evidence Adduced at the Trial of [NAME]

1. The evidence placed before the Court at the trial of [NAME] was entirely documentary.

2. The Crown tendered, by consent, a document entitled "Agreed Facts Pursuant to Section 191 Evidence Act 1995" signed by [NAME], his solicitor and the Crown and dated 8 October 2021 (Exhibit A).

3. In addition, the Crown tendered, without objection: 1. a report of [NAME], forensic psychiatrist, dated 5 July 2021 (Exhibit B); and 2. a supplementary report of [NAME] dated 6 October 2021 (Exhibit C). 1. [NAME], counsel for [NAME], tendered without objection, a report of [NAME], forensic psychiatrist, dated 5 May 2021 (Exhibit 1).

2. Written submissions dated 8 October 2021, prepared by counsel for [NAME], were relied upon at the trial (MFI1). The Crown agreed with the submissions of counsel for [NAME] on issues of fact and law summarised in those submissions.

Trial of [NAME] for the Purpose of the MHCIFP Act 1. Although the events giving rise to the trial of [NAME] occurred on 27 May 2020, the MHCIFP Act (which commenced on 27 March 2021) applies to this trial: R v Tonga [2021] NSWSC 1064 at [6]-[10].

2. Section 28 MHCIFP Act provides for the defence of mental health impairment: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes— (a) an omission, and (b) a series of acts or omissions."

1. The reference in s.28(2) to a question to be determined by a jury extends to a trial by Judge alone: s.6 MHCIFP Act.

2. The term "mental health impairment" is defined in s.4 MHCIFP Act: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder."

1. As noted earlier, s.31 MHCIFP Act has application to this trial. That section provides: "31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established."

1. It is for the Crown to prove the guilt of [NAME] beyond reasonable doubt for the offence of murder. [NAME] has the benefit of the presumption of innocence. The Crown must prove beyond reasonable doubt that [NAME] committed the physical acts which caused the death of the deceased. 2. [NAME] does not dispute that it was his voluntary act (or series of acts) that constituted the direct cause of the death of [NAME].

3. As [NAME] observed in R v [NAME] at [15], if the Court is satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of the mental element of murder. This is consistent with the law as it stood prior to the commencement of the MHCIFP Act: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].

4. In R v [NAME] referred to the interaction between ss.132 and 133 Criminal Procedure Act 1986 and s.31 MHCIFP Act at [95]-[100]. In identifying the task for the Court at a Judge-alone trial where s.31 MHCIFP Act applied, her Honour said at [98]-[100]: "98 The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act. 99 Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31. 100 Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes."

1. I agree with her Honour's analysis concerning this issue.

2. In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 "aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found" (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added "extra safeguards" in that "the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established". This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibility and Consequences", 2013, paragraphs 3.159-3.160.

3. It remains for the Court to find the facts (which are not in dispute in this case) and then apply the terms of ss.4 and 28 MHCIFP Act for the purpose of the Court determining whether it is satisfied that the defence of mental health impairment is established. As [NAME] observed in R v [NAME], it is not necessary for the Court to recite in any detail directions which may have been required if the trial was proceeding other than in circumstances where s.31 MHCIFP Act has application.

4. However, the Court's decision fulfills another important purpose. It provides reasons for the verdict of the Court announced in open court on a serious charge where there is a strong public interest in the community understanding the basis upon which the verdict has been returned. The provisions of reasons for a decision is an expression of the open justice principle. The importance of a public explanation for final decisions has long been recognised: [NAME] v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[58].

5. In addition, where the Court returns a special verdict of act proven but not criminally responsible under s.30 MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s.33 in circumstances where the Court must refer an [NAME] person to the Mental Health Review Tribunal under s.34 MHCIFP Act if such a special verdict has been returned. The reasons of the Court for reaching the verdict, and for making consequential orders, serve an important role in the discharge by the Mental Health Review Tribunal of its functions with respect to a person in relation to whom such a special verdict has been returned: cf Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 at [17] (concerning the giving of reasons where the parties signed consent orders in civil proceedings under rule 36.1A Uniform Civil Procedure Rules 2005).

6. It is against this legal background that I will now turn to make findings of fact before considering the psychiatric evidence adduced at the trial.

Findings of Fact 1. The following findings are drawn from the narrative of agreed facts contained in Exhibit A. Background of [NAME] 1. [NAME] was born in 1978 and is now 43 years old. At the age of 19 years, he was first admitted to James Fletcher Hospital and diagnosed with "query drug induced psychosis or query manic phase of bipolar affective disorder".

2. Between the date of that diagnosis in 1997 and 27 May 2020, [NAME] was admitted to hospital for treatment of his mental health on some 15 occasions. [NAME] began to consume alcohol and cannabis when 14 or 15 years old. He began to consume amphetamines in his later teenage years. Throughout his adult life, [NAME] has struggled with substance abuse and addiction. He was married for a period and had four sons with his ex-wife. He did not retain custody of the children after the end of that relationship. Events in 2019 1. In May 2019, [NAME] was living alone in Kempsey. At about that time, he met [NAME] (who also lived in Kempsey) through a church group and he began going to church services held by that group.

2. In October 2019, [NAME] was living at a hotel in Kempsey and was performing volunteer work at a charity store in Kempsey. Through his work, he met a woman with whom he commenced an intimate relationship. During the course of that relationship, [NAME] and his partner regularly consumed alcohol, cannabis and/or amphetamines together. Events in Early 2020 1. In early 2020, the partner told [NAME] that she did not want to continue their relationship.

2. On 10 January 2020, [NAME] attempted suicide by cutting his wrist at the hotel in Kempsey where he had been residing. He was taken by ambulance to hospital and remained at the Port Macquarie Hospital Mental Health Unit until his discharge on 24 January 2020. He returned to the hotel at Kempsey and he and his partner recommenced their relationship.

3. On 30 January 2020, [NAME] made a second suicide attempt by stabbing himself in the abdomen at the hotel in Kempsey. He was again taken to hospital for treatment. After being stabilised, he was transferred to Taree Hospital where he remained until 20 February 2020. He was discharged from hospital on that day and once again lived at the hotel in Kempsey. [NAME] saw the [COMPANY] following his discharge. [NAME]

1. On 26 February 2020, [NAME] was at Kempsey Police Station where he met [NAME], who attended the police station to bring in a bike he had found. [NAME] was 63 years old. He was an accountant, residing with his wife, [NAME], in [NAME], about five kilometres out of South Kempsey. 2. [NAME] and [NAME] struck up a friendship. They played squash together and [NAME] engaged [NAME] to undertake some house maintenance work at his property.

3. In March 2020, the [NAME] offered [NAME] a place to stay and, on 28 March 2020, [NAME] moved into a studio apartment at their residence in Kempsey. 4. [NAME] resumed his relationship with his partner who was living at a hotel in Kempsey. They still consumed alcohol and drugs together regularly.

5. From the time when they met in February 2020, [NAME] and [NAME] appeared to have a positive friendship with no animosity. [NAME] was supportive of [NAME]'s issues and tried to help him. 6. [NAME] engaged [NAME] to do some fencing work for a friend whose property had been badly damaged in the 2019 bushfires. This work was undertaken on three occasions from 24 March 2020, with [NAME] telling the friend for whom the work was being done that [NAME] was "a nice fellow who was going through a rough trot". Days Leading Up to 27 May 2020 1. As mentioned earlier, [NAME] was receiving assistance from the [COMPANY] following his discharge from hospital on 20 February 2020.

2. On 3 May 2020, a mental health nurse spoke with [NAME] and noted that he presented as being euthymic, reactive and engaging. [NAME] denied mood symptoms, psychotic symptoms or suicidal ideation. He reported ongoing methamphetamine, cannabis and alcohol use, but claimed he had cut his use down substantially. The nurse, however, noted that [NAME] may be minimising his use. It was noted that [NAME] had a stable mental state on his then current medication. It was considered that [NAME] was no risk to himself or others at that time, although it was noted that this was highly changeable in the event of non-compliance with medication and substance use.

3. In about mid-May 2020, [NAME] told the [NAME] that he had bipolar disorder.

4. From 21 to 24 May 2020, [NAME] did not stay with the [NAME]. When he returned, he told them that he had been staying with his partner and had been consuming drugs and alcohol with her.

5. In the week leading up to 27 May 2020, [NAME] and [NAME] exchanged a number of text messages about general matters.

6. On the morning of 26 May 2020, [NAME] texted [NAME] and arranged to pick him up at 8.00 am the next morning. [NAME] had planned to do some odd jobs at the property, including servicing and changing the brakes on his wife's car which was due for a registration renewal.

7. At 4.27 pm on 26 May 2020, [NAME] texted [NAME] to come to their house for a chat since she had not seen him for a day and was concerned about him. [NAME] came out of the studio apartment and spoke to the [NAME] on the veranda of their house. He pointed to his head several times and said "I hear voices". After some discussion, [NAME] returned to the studio apartment and seemed to be settled.

8. Later that evening, [NAME] visited his partner at her accommodation. She thought he "seemed really good" although he had been drinking and smoking cannabis. He left late in the evening and they organised to be together again at about 4.00 pm the next day. Events on 27 May 2020 1. On the morning of 27 May 2020, [NAME] dropped his wife off to work as he needed to replace the brakes on her vehicle which he proposed to do that day. His wife agreed she would get a lift home after work with a colleague who lived nearby. 2. [NAME] picked up [NAME] at 9.00 am from the [NAME]' property.

3. During the morning of 27 May 2020, [NAME] was in touch with various persons by telephone or text message with the last text from him being sent at 11.18 am. The Fatal Attack by [NAME]

1. I am satisfied that [NAME] killed [NAME] in the middle of the day on 27 May 2020.

2. Between 11.00 am and 12.00 pm, neighbours of [NAME] heard "loud and aggressive screaming" or "yelling" coming from the direction of [NAME]' property. Persons, including [NAME], tried to contact [NAME] by telephone around lunch time, but the calls went unanswered.

3. At about 3.55 pm, neighbours of [NAME] at [NAME] observed a person (whom I find was [NAME]) driving [NAME]' vehicle away from the [NAME]' property before it returned at about 4.02 pm. [NAME] Home in the Early Evening 1. At about 6.15 pm, a colleague of [NAME]' dropped her home to [NAME]. She noticed that the house was very dark. She heard a bumping noise as she unlocked the screen door to the house and, when she entered, she saw [NAME] standing in the foyer holding [NAME]' .22 rifle. 2. [NAME] asked [NAME] where her husband was, to which [NAME] responded "Oh he's out. I've had a bad day". [NAME] tried to look around the house and asked [NAME] to put the gun down as he was making her nervous. He said "I've had a really bad day. I just want to hold it. I just want to hold it". 3. [NAME] said she needed to go to the toilet and walked into the en suite from where she tried calling her husband's telephone, but there was no answer. In further conversation with [NAME] tried to keep him calm and offered to make him a cup of tea. [NAME] responded "Can I have it strong, really strong, with a couple of sugars? I've just have had a really bad day, I think I want to end it". Assuming he was referring to killing himself, [NAME] said "Well you don't want to do that, why don't you have a cup of tea and tell me about your day? What about some food, you would feel a lot better". 4. [NAME] made some tea. [NAME] moved to the breakfast bar and then back to the family room and asked her "Do you know how to turn the lights off in your car, I don't know how to do it?". [NAME] confirmed that she did and [NAME] took the keys out of his pocket and handed them to her whilst he was still holding the gun. [NAME] the House and Makes a "000" Call 1. [NAME] took the keys and walked slowly past [NAME] to the front door. He followed her outside, remaining at the front door. She told him the lights were off.

2. As she reached her vehicle, [NAME] walked quickly down the side of the house and to the house of her next door neighbours. She told the neighbours there was a man in her house holding a gun who would not tell her where her husband was. [NAME] called "000" at 6.32 pm and remained at the neighbours' house until police arrived. [NAME] his Mother in South Australia 1. At 6.48 pm, [NAME] called his mother who lived in South Australia. He kept repeating that it was not a good day and that he was a bad person. [NAME] thought that [NAME] sounded "really, really sad when he was talking".

2. Aware of his previous suicide attempts and mental health history, [NAME] was worried he was suicidal again. She asked him questions in order to ascertain where he was so she could arrange for a taxi to pick him up and take him to hospital. He told her he was out in the country doing some fencing at a [NAME]'s property.

3. After talking for some time, [NAME] asked [NAME] if she could speak to the [NAME] he was with. By this time, [NAME] was repeating that he kept having really bad thoughts and he was going to go to gaol for a very long time or not be around tomorrow. He told his mother that the man was "gone".

4. As [NAME] kept repeating that the man was "no good", his mother asked "Do you mean he's dead?" to which [NAME] replied "Yeah, he's gone". [NAME] to his Sister in South Australia 1. By this time, [NAME] was very worried. She walked to her daughter's house and handed her the telephone. Her plan was to keep her daughter talking to [NAME] whilst she (the mother) called "000" from her daughter's mobile phone in order to let New South Wales Police know that someone was hurt and that [NAME] needed help. [NAME] told the operator that [NAME] thought he killed someone, that he had a mental illness and had made two suicide attempts earlier in the year. She continued speaking to the operator whilst [NAME]'s sister spoke to [NAME]. 2. [NAME]'s sister asked him what was going on and he said "I'm a bad person". She asked where the person was that he had been with, to which [NAME] responded "In the garage". She asked "Can you help him?" and [NAME] replied "No, it's too late, he's gone". 3. [NAME]'s sister considered that he was "very vague" and "sounded really confused". Her experience had been that when [NAME] spoke to her when he was mentally unwell, he spoke in a way that was "eerie" and "robotic". Given her past experience of speaking to [NAME] when he was unwell, she considered that he was unwell at the time of that conversation. At one point in the conversation, [NAME] said "I have to either die or go to gaol tonight". His sister responded "You don't have to kill yourself, you can go to gaol". 4. [NAME] told his sister that he was holding a gun. The sister alerted her mother about this and this information was passed on to police. Soon after, [NAME]'s mother took the telephone from her daughter and was speaking simultaneously to [NAME] and the police on the two telephones.

5. When the telephone was returned to [NAME]'s sister, he kept saying he was going to kill himself. His sister told him to take the bullets out of the gun and asked him how he killed the man. [NAME] said "It's too gory, I don't want to tell you". After some further conversation along similar lines, the sister heard what she thought was a gun click and she started screaming "No". Police Arrive at the [NAME]' Home 1. Meanwhile, following the "000" calls, police arrived at the neighbours' house at [NAME] around 7.20 pm and spoke to [NAME]. A number of police attended and positioned themselves in the yard of the [NAME]' residence. They could see [NAME] pacing inside the house.

2. At 8.06 pm, [NAME] walked out onto the veranda to one of the vehicles and returned inside. He was seen again at 8.32 pm standing inside the front security door speaking on a mobile phone and holding the rifle. He turned off the inside and outside lights of the house. [NAME] from the House and is Arrested 1. A few moments later, [NAME] walked outside onto the driveway. He was carrying the rifle in his right hand and a phone in his left hand. He was told by police to drop the rifle and raise his arms. [NAME] slowly followed those instructions and began walking towards the house. Police yelled at him to stop where he was and get down on his knees, which he did with his hands raised. [NAME] was arrested and identified himself to police.

2. The rifle was secured and the magazine emptied, revealing that it had been loaded with eight .22 calibre rounds. The clothing of [NAME] was blood stained and he had blood on his hands. Police Speak to [NAME]

1. After being cautioned, police spoke to [NAME] and he said "I've had the worst day. I was about to take my life, I've had the worst day". When asked if he was "OK", [NAME] said "I'm no good mate". [NAME] was asked if anyone else was in the house and he said "I think [NAME] is in there, he's in the garage". Police asked if "[NAME] was OK" and [NAME] replied "No". 2. [NAME] was asked if he had taken "tablets or anything like that" and he said "Nah, I suffer from mental health". When asked if he had been taking his medication, [NAME] said "No". He did not answer when asked how long it had been since he had last taken his medication. [NAME] said "I was going to take my life. I was going to take my life I was. That's all". When asked how he knew [NAME] and if he had any issues with him, [NAME] said "I got mental health issues and I acted out on them today, that's all I'm gonna say".

3. In the course of further conversation with the police about his phone and the blood on his clothes, [NAME] said on a number of occasions "I've had the worst day". He was conveyed to Kempsey Police Station and participated in an ERISP but made no comments. He consented to a number of forensic procedures being conducted. He was later asked what had happened and [NAME] said "I might have stabbed him". Police asked where the knife was and [NAME] responded "I don't know, I've had a bad day". Police Search the [NAME]' House and Garage 1. Meanwhile, police entered and began searching the [NAME]' house, noticing an overturned vase in the hallway. The door to the garage, located at the end of the hallway, was closed.

2. Police entered the garage and saw the body of [NAME] lying face down on the ground. Blood soaked sheets and a towel were on either side of him partially under and partially over his body. Paramedics were called and a crime scene was established.

3. The gun safe of [NAME], similar to an old-style gym locker, was located in the garage. It was damaged and had been forced open. There were no guns inside. [NAME] owned four firearms, one of which had been held by [NAME] from the time [NAME] had arrived home until his arrest. As will be seen, the other three firearms owned by [NAME] were located in the back of his vehicle.

4. Multiple stab wounds were observed on the body of [NAME]. There was a defensive laceration on his left arm.

5. The forensic pathologist who undertook the autopsy concluded that the cause of death of [NAME] was "multiple stab wounds to head, neck and torso". There were also blunt force injuries in the form of multiple abrasions to the face and other parts of the body.

6. Examination of the area in the garage around the body of [NAME] revealed blood staining and drag marks.

7. The gun safe had been forced open with blood stains and finger prints in the area revealing that it was [NAME] who had broken into the gun safe.

8. Located in [NAME]' vehicle were blood stains and a towel containing two rifles and a shotgun which had been removed from the gun safe.

9. In the footwell of the front seat of the vehicle was located a backpack which contained [NAME]' wallet, a box of Winchester .22 calibre ammunition and a double-edged bladed knife. This knife belonged to [NAME] and was usually kept in a tool box stored in a cabinet in the garage. The knife was stained with blood. It is clear that [NAME] had used this knife to kill [NAME]. [NAME]'s Version of Events 1. The Agreed Facts document (Exhibit A) stated that [NAME] provided a version of events to [NAME] on 22 June 2021 which can be summarised as follows:

1. On 27 May 2020, [NAME] was collected by [NAME] and they returned to [NAME]' home. 2. [NAME] began to hear voices telling him to take the life of [NAME]. 3. [NAME] and [NAME] were in the garage and [NAME] observed [NAME] to be pale and suggested he take [NAME] to the hospital or home.

4. As they left the garage, [NAME] saw a knife on the shelf – he struggled with his thoughts, before picking up the knife and stabbing [NAME] to the upper neck. 5. [NAME] fell to the ground outside the garage and passed away where he fell.

6. Later, [NAME] dragged the body of [NAME] into the garage and put sheets and towel on either side of him.

7. At some point, later in the day, [NAME] broke into the gun safe with the intention of ending his life, but before he could do so, [NAME] returned home.

The Defence of Mental Health Impairment and the Expert Medical Evidence 1. The defence of mental health impairment under s.28 MHCIFP Act has two limbs (see [10] above).

2. The first limb is that [NAME], at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s.28(1) MHCIFP Act.

3. The second limb is that the relevant impairment had one or other of the effects referred to in s.28(1)(a) or (b).

4. The presence of each limb is to be determined on the balance of probabilities (s.28(2)) and, until the contrary is proved, it is presumed that [NAME] did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s.28(1): s.28(3) MHCIFP Act.

5. In the second reading speech for the MHCIFP Bill, the Attorney General said that Part 3 of the Bill "updates and legislates what was the common law test for the defence of mental illness" arising from the decision in M'Naghten's Case (1843) 8 ER 718 (Hansard, Legislative Assembly, 3 June 2020, pages 2351-2352). The Attorney General said that Clause 28 "provides for the defence of mental health impairment or cognitive impairment, which closely mirrors M'Naghten's test but with updated terms". With respect to the formulation of the defence, the Attorney General explained that "it is important to victims of those forensic patients who have successfully raised the defence of mental illness that the defence recognises that the person did do an act".

6. The language used in s.28(1)(a) and (b) originates from the renowned summing up to a jury in a murder trial in Canberra by [NAME], a Judge of the High Court of Australia, in The King v Porter (1933) 55 CLR 182 at 187-190; [1933] HCA 1. In recommending a statutory provision along these lines, the New South Wales Law Reform Commission made clear that the summing up of [NAME] in The [NAME] v [NAME] had been widely accepted and adopted, and that it was an appropriate formulation to be included in the statutory statement of the defence: Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibility and Consequences", 2013, paragraphs 3.90- 3.109.

7. As will be seen, each of [NAME] have addressed the defence of mental health impairment in s.28 MHCIFP Act in their respective assessments of [NAME].

8. Prior to the enactment of the MHCIFP Act, it had been said that, although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174; [1970] HCA 14), the need to establish the elements of the defence made the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160.

9. An elaborate definition of "mental health impairment" now appears in s.4 MHCIFP Act (see [12] above) which requires the Court to consider whether, amongst other things, "a temporary or ongoing disturbance of thought, mood, volition, perception or memory … would be regarded as significant for clinical diagnostic purposes": s.4(1)(a) and (b). The introduction of an assessment of the relevant "disturbance" as being "significant for clinical diagnostic purposes" means that expert medical evidence is now more than a practical necessity in cases where the s.28 defence is raised.

10. It remains the case that juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR(NSW) 20 at 31; [NAME] v R at 161-163; R v [NAME] at [44]-[50]. [NAME] v R; R v Da-Pra [2014] NSWCCA 211 at [337].

11. The parties in this trial referred to the statement of Button J in Carter v R [2019] NSWCCA 11 at [319] concerning the evidentiary value of expert psychiatric evidence: "… although it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system."

1. Against this background, it is appropriate to turn to the expert medical evidence in this case. At the outset, it should be observed that each of [NAME] is an eminent forensic psychiatrist with very great experience in the assessment of persons charged with serious crimes in the courts in this State.

2. As regards the first limb of the defence (see [85] above), [NAME] stated in his report of 5 May 2021 (page 5): "It is noteworthy that [NAME]'s persistent psychotic symptoms (in the form of intermittent hallucinations and thought broadcasting) have been occurring over recent months in the absence of a severe depressive episode or current manic episode, meaning he meets criteria for the diagnosis of schizoaffective disorder, rather than bipolar affective disorder (psychotic symptoms being confined to severe mood episodes in bipolar affective disorder and persisting beyond the resolution of the acute mood episode, depressive or manic, in people the schizoaffective disorder). The diagnosis of schizoaffective disorder is consistent with the nature of his reported psychotic symptoms in any case, persistent hallucinations and related delusions going beyond what would generally be seen in people with bipolar affective disorder alone. Schizoaffective disorder is also consistent with the psychosocial decline and functional impairment evident in [NAME] over the last 12 years or so, possibly longer. Therefore, [NAME] meets criteria for the diagnosis of the following mental disorders: • Schizoaffective Disorder • Substance use disorder (cannabis, methylamphetamines) Schizoaffective Disorder is a chronic and severe mental disorder characterized by distortions in thinking, perception, emotions, language, sense of self, behaviour and mood. Common symptoms experienced in people with schizoaffective disorder include hallucinations (hearing voices or seeing things that are not there), delusions (fixed, false beliefs), severe mood disturbance (alternating manic episodes and/or severe depressive episodes), behavioural disturbance, motor abnormalities, negative symptoms and cognitive deficits."

1. In his report of 5 July 2021, [NAME] said (pages 38-39): "Bipolar 1 Disorder I am of the view, [NAME] has a Bipolar 1 Disorder. For a diagnosis of Bipolar 1 Disorder, it is necessary for the person to have a manic episode. The manic episode may have been proceeded by or may be followed by hypomanic major depressive episodes. A manic episode has the following diagnostic criteria: A. A distinct period of abnormality and persistently elevated, expansive, or irritable mood and abnormality and persistently increased goal directed activity or energy, lasting at least one week and present for most of the day, nearly every day (or any duration if hospitalisation is necessary) B. During the period of mood disturbance and increased energy or activity, three (or more) of the following symptoms (four if the mood is only irritable) present to a significant degree and represent a noticeable change from usual behaviour: a. Inflated self-esteem or grandiosity. b. Decreased need for sleep (e.g., feels rested after only three hours of sleep). c. More talkative than usual or pressure to keep talking. d. Flight of ideas or subjective experience that the thoughts racing. e. Distractibility (i.e., attention too easily drawn to unimportant or irrelevant external stimuli) as reported or observed. f. Increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation. g. Excessive involvement in activities that have a high potential for painful consequences (e.g., engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments). C. The mood disturbance is sufficiently severe to cause marked impairment in social or occupational functioning or to necessitate hospitalisation to prevent harm to self or others, or there are psychotic features. The episode is not attributable to the physiological effects of a substance. Substance Use Disorder Based on the documentation and assessment, I am of the view [NAME] qualifies for this diagnosis. The essential feature of a Substance Use Disorder is a cluster of cognitive, behavioural and physiological symptoms indicating that the individual continues using the substance despite significant substance related problems."

1. In his supplementary report of 6 October 2021, [NAME] expressed the following conclusion (page 1): "I am of the opinion that [NAME] qualifies for a legal concept of 'mental health impairment' as defined in sections 4 & 5 of the Mental Health and Cognitive Impairment Forensic Provisions 2020. [NAME] had a Bipolar 1 Disorder which is a mental illness with episodes of mania and psychotic symptoms at the time of the alleged offence."

1. It will be noted that [NAME] has expressed the opinion that, at the time of the act causing the death of [NAME] met the diagnostic criteria for Schizoaffective Disorder and that [NAME] has expressed the opinion that [NAME] had Bipolar 1 Disorder.

2. Both the Crown and counsel for [NAME] submitted that the Court did not need to resolve this divergence of opinion between the experts in order to find that the first limb of the s.28 defence had been established in this case. I agree with that submission. Each psychiatrist has concluded that [NAME] was suffering from a "mental health impairment" at the relevant time and each of the two impairments with which they respectively diagnosed [NAME] is relatively consistent in its symptoms. There is a significant overlap in the description of symptoms which fall under each diagnostic heading. The divergence of opinion may be characterised appropriately as being one of description or labelling, rather than the existence or extent of [NAME]'s mental health impairment.

3. It should be kept in mind that [NAME] has a long history of treatment for mental illness extending back to an initial diagnosis involving bipolar disorder when he was 19 years of age.

4. I am satisfied that, at the time of the act which caused the death of [NAME] had the necessary "disturbance" for the purpose of s.4(1) which arose from (at least) "an affective disorder, including clinical depression and bipolar disorder" for the purpose of s.4(2)(b) MHCIFP Act. 5. [NAME] had a history of substance use which included the use of cannabis, methamphetamine and alcohol and was diagnosed by [NAME] with substance use disorder, it is clear on the evidence that the impairment of [NAME] as at 27 May 2020 was not caused solely by the temporary effect of ingesting a substance or a substance use disorder.

Accordingly, the exclusionary provision in s.4(3) MHCIFP Act does not apply in this case.

6. I am satisfied on the balance of probabilities that, at the time of carrying out the act or acts which caused the death of [NAME] on 27 May 2020, [NAME] had a "mental health impairment" so that the first limb of s.28(1) MHCIFP Act is established.

7. In relation to the second limb of the defence (see [86] above), [NAME] said in his report (page 8) (my emphasis): "The available history and medical records confirm that [NAME] was suffering from severe depression, auditory hallucinations of a commanding nature and associated delusional thinking, including thought broadcasting. He was mentally unstable, had persistent suicidal thoughts and tried to kill himself on 10 January 2020 and again on 6 February 2020 [sic – should be 30 January 2020], both suicide attempts resulting in life-threatening injuries and requiring medical/surgical treatment and then psychiatric admissions. Those symptoms and his reported behaviour, coupled with a lengthy history of mental illness and numerous previous psychiatric admissions, are indicative of [NAME] suffering from a poorly controlled schizoaffective disorder, a mental health impairment as defined in section 4 of The Act. His mental health impairment was present in the months prior to alleged offending, at the time of his alleged offending, and over the last 10 months in custody. His actions in allegedly killing [NAME] on 27 May 2020 near Kempsey were devoid of any apparent or obvious logical reason, making it more likely than not he was driven by his internal psychotic symptoms, especially auditory hallucinations of a commanding nature that told him he had to kill himself or kill someone else otherwise his children would be killed. He was also suffering from severe symptoms of depression at the time.

Accordingly, and in relation to determinations under section 28 of The Act, I am of the opinion that [NAME] was aware of his alleged actions/omissions that led to the death of [NAME]; however, he did not know that his alleged actions/omissions were wrong. That is, [NAME] could not reason with a moderate degree of sense and composure about whether his alleged act of killing [NAME], as perceived by reasonable people, was wrong. In my opinion, [NAME] has the defence of mental health impairment available to him."

1. In his report of 5 July 2021, [NAME] reviewed in detail the evidence in the Crown brief and stated that he was (page 49): "… of the opinion that [NAME] did know the nature and quality of his act at the time of the alleged offence. This means the capacity to comprehend the significance of the act (of killing) and the act by means of which the act was done [Sodeman, per [NAME] at 214-215]. I'm of the opinion that [NAME] did know that the act was legally wrong. It is alleged that he left the scene of the alleged offence."

1. However, [NAME] said in that report (page 51) (my emphasis): "When [NAME] allegedly spoke to him at time of his arrest, he allegedly said, 'I got mental health issues and I acted out on them today, that's all I'm gonna say guys'. Subsequently, he gave an account to [NAME] and myself consistent with rapid deterioration in his mental state and a psychotic state at the time of the alleged offence. In my opinion, he likely felt compelled to act on his thoughts/voices/beliefs. He likely did [not] know that the conduct was wrong because he could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong. Therefore, on balance, I'm of the opinion that [NAME] likely has a defence of mental illness available to him and was likely suffering from a mental illness so as not to be responsible for his actions in accordance with the test set down in R v M'Naghten (1943) 8ER 718."

1. In his supplementary report of 6 October 2021, [NAME] stated (pages 1-2) (my emphasis): "With regards to the defence of mental health impairment and cognitive impairment under section 28: For reasons stated in my previous psychiatric report dated 5 July 2021, I'm of the opinion that at the time of the alleged offence, [NAME] had a mental health impairment, that had the effect that: [NAME] did know the nature and quality of his act/omission at the time of the alleged offence. Further, [NAME] likely did know that the act was legally wrong, however he did not know the act was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)." 1. [NAME] expressed the following conclusion (page 2): "… on balance, I'm of the opinion that [NAME] likely has a defence of mental health impairment available to him."

1. Based on the evidence of [NAME], neither the Crown nor counsel for [NAME] submitted that s.28(1)(a) MHCIFP Act had been satisfied.

2. It was submitted, however, on behalf of the [NAME] that, based on the evidence (including the agreed facts), the Court would find on balance that s.28(1)(b) had been satisfied in that [NAME] did not know that the act was wrong, that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

3. Both the Crown and counsel for [NAME] submitted that the Court would accept the unanimous evidence of the two medical experts that the second limb of the s.28 defence had been established in this case. Although it was acknowledged that the Court is not bound to accept the medical evidence relying upon the authorities referred to earlier (at [93]-[94]), it was submitted that the Court should do so unless there is some material which casts doubt upon the unanimous medical evidence. It was submitted that there was no such material in this case so that the Court should return a verdict of "act proven but not criminally responsible" under ss.30 and 31 MHCIFP Act.

Is the Defence of Mental Impairment Established in this Case? 1. I am satisfied beyond reasonable doubt that [NAME] stabbed [NAME] on a number of occasions so that it was the physical acts of [NAME] which caused the death of [NAME].

2. Further, I have found that [NAME] was subject to a "mental health impairment" at the time of these events on 27 May 2020 so that the first limb of the defence of mental impairment under s.28(1) MHCIFP Act is established in this case (see [102]-[104] above).

3. With respect to the second limb of the defence of mental impairment under s.28(1) MHCIFP Act, I have had regard to the totality of the evidence including the matters contained in the Agreed Facts and in the reports of the expert witnesses, [NAME]. Having considered all the evidence, I accept the opinions of [NAME] which are expressed in detailed and well-reasoned reports which address the facts of this tragic event, against the background of [NAME]'s psychiatric history and his mental state at the time when he caused the death of [NAME].

4. I accept the written submissions on behalf of [NAME], with which the Crown agreed, which identified a number of features in the evidence which supported the conclusions of [NAME] concerning the availability of the defence of mental impairment to [NAME] in this case. The matters which support the availability of the defence of mental impairment to [NAME] include the following: 1. [NAME]'s prior diagnosis of mental illness, namely bipolar disorder, at the age of 19 years (report of [NAME] dated 5 July 2021 (pages 14-15); report of [NAME] (page 3)); 2. [NAME]'s long history of treatment for his mental illness, including numerous occasions on which he was treated as an inpatient in hospitals (report of [NAME] dated 5 July 2021 (pages 14-23); report of [NAME] (pages 3-4)); 3. [NAME]'s two attempts at suicide on 10 and 30 January 2020 (report of [NAME] dated 5 July 2021 (pages 30-31, 43-44); report of [NAME] (page 3)); 4. [NAME] reporting to the [NAME] on 26 May 2020, the day prior to his causing the death of [NAME], that he was hearing "voices" (see [44] above); 5. the absence of any apparent rational explanation for [NAME] to have attacked [NAME], given that they enjoyed a positive and untroubled friendship and that [NAME] had been generous in his assistance towards [NAME] (see [36]-[37] above); 6. the indication given by the sister of [NAME] that, when speaking to him by telephone on the evening of 27 May 2020 after he had caused the death of [NAME] was speaking in a way which she described as "eerie" and "robotic" and which was consistent with her previous experience of him when he was mentally unwell (see [64] above); 7. the indication by [NAME] to police on arrest that he had "mental health issues and … acted out on them today …" (see [72] above); and 8. the account given by [NAME] to each of the psychiatrists of hearing voices at or about the time at which he caused the death of [NAME] which caused him to commit the act (report of [NAME] dated 5 July 2021 (page 48); report of [NAME] (pages 4-5)).

1. In addition to these features, I have had regard to the actions and words of [NAME] over a period of time which culminated in the bizarre events of 27 May 2020. His interactions with [NAME] in the house that evening were indicative of the existence of serious mental illness. His acts in breaking into the gun safe and recovering the firearms point to a man with his mind in turmoil. He remained at the premises and spoke to [NAME] before ringing his mother in South Australia to speak to her. Once again, the tone and content of his conversation with his mother and his sister is indicative of serious mental illness, including self-destructive thought processes which he had acted upon just a few months before.

2. After applying the principles set out earlier in this judgment to the evidence adduced in the trial, I accept the submission of the Crown and counsel for [NAME] and find, on the balance of probabilities, that [NAME] had a "mental health impairment" at the time when he committed the acts which caused the death of [NAME] and that the impairment had the effect that [NAME] did not know that his act was wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.

3.

Accordingly, the Court is satisfied, having considered the evidence in the proceedings, that the defence of mental impairment under s.28 MHCIFP Act is established in this case.

4. Before moving to announce the formal verdict of the Court, the Court wishes to emphasise that the evidence demonstrates that [NAME] was welcomed, supported and assisted by [NAME] and [NAME], who came to meet [NAME] in the months prior to these tragic events on 27 May 2020. No conduct of any member of the [NAME] played any part in the commission of the acts by [NAME] which caused the death of [NAME].

5. Indeed, a significant factor which supports a finding that the defence of mental impairment exists in this case, is the way in which [NAME] committed these acts out of the blue and with no rational explanation. This tragic case involved a man with significant mental illness killing a person who had assisted him in the community in which they lived.

6. It is appropriate, as well, to commend the calm approach of [NAME], who demonstrated fortitude and clear thinking on the night of 27 May 2020 in what must have been a very frightening experience. [ADDRESS] also commends the response of the mother and sister of [NAME] who did their best, at long distance, to bring these terrible events to a peaceful conclusion.

Verdict 1. On the charge that [NAME] on 27 May 2020, at [NAME] in the State of New South Wales did murder [NAME], the Court finds the act proven, but [NAME] not criminally responsible for it. 2. The verdict that will be entered on the indictment dated 31 August 2021 is: "Act proven but not criminally responsible".

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2021