DPP v Melville [2025] VSC 233

1. Roger Melville, the accused, who is now 57 years old, stabbed and killed Stephen Seach, the deceased, on 23 January 2024. They both resided at the Romana House, a community boarding house for low income residents in Kew. The accused has been charged with murder.
2. A defence of mental impairment is established under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 if the accused was, at the time, suffering from a mental impairment that had the effect that he 'did not know that the conduct was wrong (that is, that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).'[1] The accused has a long history of schizophrenia. Reports have been obtained from two forensic psychiatrists: Dr Prashant Pandurangi, who was engaged by the accused's solicitors, and Dr John Luu from Forensicare who was engaged by the prosecution. The prosecution and the accused agree that the proposed evidence establishes the defence of mental impairment. The position of both the prosecution and the accused is that the accused killed the deceased because, as a symptom of his schizophrenia, he held a psychotic belief that the deceased was part of a group of drug dealers who were planning to kill him. Because of the agreement between the prosecution and the accused, I may hear the evidence instead of the trial proceeding before a jury, and I may direct that a verdict of not guilty because of mental impairment be recorded if I am satisfied, on the balance of probabilities, that the defence of mental impairment is established. If I am not so satisfied, I must direct that the accused be tried by a jury.[2]

B The circumstances surrounding the stabbing[3]

1. The accused was unemployed and received a disability support pension. He and the deceased did not get along and would often argue with each other. The accused was for the most part quiet and reserved, while the deceased was loud and brash. The accused threatened to kill the deceased on 21 January 2024. On 23 January 2024, the accused purchased a knife from a local grocery store and again threatened the deceased. Not long afterwards, he made good on his threat by stabbing the deceased several times in the back and chest in the shared hallway and living area of the boarding house. The deceased escaped (although he later died of his injuries). After the deceased escaped, the accused placed the knife on a nearby TV cabinet, moved to the backyard to have a cigarette, then walked to the front smoking area where he stayed until he was arrested by police. One of the first police officers to arrive asked 'who is the offender?', to which the accused replied 'I am.' The accused was taken to hospital, where he admitted that he had stabbed the deceased. He later gave a 'no comment' interview. He has been on remand and in receipt of treatment since that time.

C The accused's background and medical history[4]

1. The accused was born in Jamaica and came to Australia with his mother and stepfather when he was approximately 10 years old. He was 'kicked out' of the house in his mid-teens and moved back to Jamaica when he was aged 20. He returned to Australia when he was aged 28 or 30, and was soon after diagnosed with a psychotic illness. He had taken cannabis and had 'experimented' with amphetamines, methamphetamines, hallucinogens and cocaine. He was hospitalised in mental health units in November 2000, June 2005, June 2012, November 2018, August 2020 and September 2022.
2. The discharge summary from his November 2000 admission records that the accused had developed persecutory delusions that his neighbours were, among other things, pumping chlorine into his flat and pouring toxic chemicals onto his carpet. Those delusions survived a two week admission and the administration of antipsychotic medication. The discharge summary from his September 2022 admission refers to him having persecutory delusions that people outside his window had tapped his phone and been part of a drug organisation that planned to kill him, and that a drug dealer living directly above his apartment had drilled four holes in their floor so that they could pour poison into his room. The notes indicate that he had reported fears about his safety in the hospital because 'drug dealers are colluding with staff to harm him', and also that other patients were part of that criminal gang. It seems, again, that these delusions persisted despite him taking antipsychotic medication.
3. In November 2022, the accused moved to community housing in Hawthorn. On 24 November 2022, a consultant psychiatrist noted 'persistent paranoia about a drug gang that he feels can harm him' and that he 'feels unsafe' at that accommodation. On 1 December 2022, the accused told his case manager that his phone was 'tapped'. Because of his fears for his safety, he moved to Romana House. On 9 March 2023, the accused told a psychiatrist that he felt less threatened at the new accommodation because 'an undercover police officer has moved in'. However, on 20 July 2023, he told the same psychiatrist, and his case manager, that he was being followed by criminals and drug dealers. On 6 September 2023, a psychiatric registrar recorded 'ongoing paranoia around accommodation' and that 'delusional beliefs have been long-standing and ingrained'.
4. As is apparent from the above, the accused's paranoid belief that there is a gang of persons intending to cause him harm is a consistent theme in his medical history, as is an apparent tendency to misinterpret communications made to or in his presence as threats to cause him harm. He also has an associated tendency to incorporate people into his delusion by attributing to them roles in the drug dealing gang.
5. The accused continues to believe that others including co-prisoners are intending or attempting to kill him. He continues to take anti-psychotic medication, which he considers effective, and he does not accept that his current fears are as a result of paranoia.

D The defence of mental impairment and the accused's mental state at the time of the stabbing

1. As noted above, the question is whether the accused has established that, at the time he stabbed the deceased, he was more likely than not suffering from a mental impairment that had the effect that:

he ... did not know that the conduct was wrong (that is, he ... could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).[5]

1. Here, there is no doubt that the accused was suffering from a mental impairment at the time he stabbed the deceased and that if he did not know that his conduct was wrong in the relevant sense then his failure to have that knowledge resulted from his mental impairment. The central issue is whether the accused's schizophrenic illness was such he did not know, at the time, that it was 'wrong' to stab the deceased.
2. What is meant by 'wrong' may be informed by the prior common law tests for the defence of insanity where the question was whether the person had the capacity to appreciate that the act was wrong in the sense of an action being 'right or wrong' or 'good and evil' or something that the accused 'ought not to do'. 'If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable'[6]:

[T]hat person will only be criminally responsible who, at the moment of committing the criminal act, is capable of remembering that the act is wrong, contrary to duty, and such as in any well-ordered society would subject the offender to punishment. It is by a reference, such as this, to principles of general morality rather than to the enactments of positive law that the courts of this country have been content to test criminal responsibility in individual cases.[7]

1. It was in that context that the High Court then adopted the concept of a person 'appreciating that his act was wrong according to the ordinary standards adopted by reasonable men'[8] that has been, in substance, adopted in the legislative text. There is no distinction between 'reasonable people' and 'ordinary people'.[9] This approach ties in with earlier observations that the criminal law is focused on punishing offenders for the purpose of providing general deterrence, and so it would be wrong to punish those who were, due to mental illness, unable to appreciate that an action would warrant punishment.[10]
2. One complication with this case is that there is no doubt that the accused, speaking generally, appreciated that killing somebody was wrong. Not only was he worried that others might kill him, but he identified himself as the 'offender' when the police arrived. But killing somebody may be justified, and thus cease to be 'wrong', if it is done in self-defence. Whether killing someone in purported self-defence is 'wrong' will depend on the strength and immediacy of the threat the person poses and the options available to the person killing.[11] This incorporates, at least in part, a need for an objective or reasonable evaluation of the circumstances. But where the defence of mental impairment is applied in this context, the accused's own and flawed perceptions become relevant. As long ago as 1843, Lord Chief Justice Tindal stated, in the context of the prior common law test on which the statutory test is based, that the question must be approached 'as if the facts with respect to which the delusion exists were real' and that 'for example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment.'[1]
3. Accordingly, where an unwell person engages in conduct that they know to be wrong unless justified by self-defence, it seems to me that the question comes down to whether their impairment (including its resultant delusions and any other compromised mental functioning) means that they cannot reason with a moderate degree of sense and composure whether the circumstances would be sufficient to justify the killing in the minds of reasonable, that is ordinary, people.
4. Both Dr Pandurangi and Dr Luu accepted a history given by the accused that he believed that the deceased was a member of a gang that was and had long been trying to kill him and that the deceased had previously tried to kill him by poisoning a cigarette and by spraying liquid into his room and had also made several threats to kill him. Dr Pandurangi records the accused telling him that a couple of days before the incident he heard the deceased say 'he knows' to someone else, which the accused interpreted as the deceased stating that the accused was aware of the threats to his life, and then saying: "... I lost it ... I couldn't take it anymore ... I bought a knife and after 15 minutes I stabbed him ...". Dr Pandurangi concluded as follows:

It is probably inexplicable as to why [the accused] decides to attack the victim on that particular day, but [the] description he provides suggests that he had reached a conclusion due to underlying delusions, that he was in imminent danger and had to act to protect himself. This is most likely to be a result of a delusional misinterpretation of something he hears the victim say or does (sic), such as when he hears the victim say 'he knows', which he interprets as a threat to his life.

...

In terms of whether or not he knew that his conduct was wrong, on balance, I am of the opinion that he would have been unable to reason with a moderate degree of sense and composure, as perceived by reasonable people, that his conduct, in stabbing the victim, was wrong. At the time, he was labouring under a defect of reasoning, due to incorrigible persecutory delusions, that others, including the victim, were planning to kill him. In the state of mind, he was in at the time, his capacity to reason or reflect would have been profoundly impaired, and he would have considered his actions as entirely justifiable in his own moral barometer. He believed that his life was in danger and his actions, which constituted the alleged offending, was (sic) in order to protect himself. For these reasons, I believe that a mental impairment defence would be open to [the accused's] current charges.

1. In his oral evidence, Dr Pandurangi opined that, at the time of stabbing the deceased, the accused 'truly believed his life was at risk', that he thought the threat or 'danger' was imminent and that he 'believed that his actions were the only way to go'. Dr Pandurangi considered that the accused held these beliefs as 'a result of his underlying psychotic beliefs ... that was a defect of [reasoning] and that affected his capacity to reason with the sense and composure which you would expect' of a reasonable person not suffering from a mental impairment.
2. With a slightly different emphasis, Dr Luu recorded that the accused 'denied that his actions had been a pre-emptive strike before the alleged victim could kill him and claimed that his motivation had been to put an end to the alleged victim's harassment'. The accused told Dr Luu:

I just wanted to do something to him, that was as bad as what he was doing to me. I wasn't planning on chopping him up into little pieces or anything like that. Just to scare him to leave me alone... Something to make him think twice about what he was doing, because it was wrong.... I thought I could get some peace and quiet [after the alleged stabbing] and it would go away... but in prison, they kept coming after me.

Regarding the wrongfulness of the conduct, my considered opinion is that [the accused's] capacity for rational thinking had been greatly compromised by his treatment-resistant schizophrenia illness.

While [the accused's] comments at the time of his arrest ("I am the offender") indicated that he had been aware that his actions had been illegal, his answers during our interview suggested that he had believed that his actions had been morally justified. [The accused] explained that the stabbing had been a proportionate response to the perceived threat to his life, "I just wanted to do something to him, that was as bad as what he was doing to me... something to make him think twice about what he was doing, because it was wrong".

Due to his delusional and hallucinatory symptoms, [the accused] had been convinced that the alleged victim would eventually kill him, having already made two unsuccessful attempts on his life. He believed that the alleged victim's persecution of him would continue to escalate. On the morning of the alleged offence, [the accused] appeared to have misinterpreted a comment ("he knows") that the alleged victim had apparently made to another resident as they had walked past his bedroom as further evidence of this.

In the midst of his psychosis, [the accused] had been unable to rationally consider alternative explanations for his experiences and had been unable to rationally consider alternative solutions to his perceived persecution. He had already relocated his residence on multiple occasions, in an unsuccessful attempt to escape the drug dealer gang. He reported his concerns to his mental health team but had felt dismissed by them. He claimed that the police had already been aware of the threat to his life, but he believed that they had wanted to use him as "bait", as part of their ongoing operation to arrest the gang members.

Consequently, I believe that [the accused's] psychotic symptoms (and the secondary evoked emotion of fear) had substantially impaired his ability to reason with a moderate degree of sense and composure as to whether his conduct, as perceived by reasonable people, was wrong.

1. Before me, Dr Luu gave oral evidence that the accused 'just felt that ... he's been persecuted for seven years at that point and things have been escalating ... he believed he just felt that he needed to act'. Dr Luu considered that the accused was unable to 'reason whether his experiences had any other ... alternative explanation' and concluded that the accused was unable to 'reason ... that ... he had any alternative options to end his harassment as ... a person without ... defective reason[ing] ... would have'.
2. I accept these opinions. Here, the accused suffered from delusions as to the extent and immediacy of the threat. He believed that the deceased was part of a gang that had been trying to kill him for some time and had twice tried to kill him at Romana House, that his attempts to involve the authorities and previous attempts to move accommodation had failed to protect him, and that further attempts on his life would be made. None of this was true. But I am satisfied that by reason of his mental impairment, the accused was unable to reason with a moderate degree of sense and composure about whether his stabbing of the deceased when he did, as perceived by reasonable people, was wrong. Because of his delusions, he could not engage in that evaluative process.
3. Accordingly, I find the accused not guilty by reason of mental impairment.

1. Having found the accused not guilty because of mental impairment, under s 23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, I must now either declare that he is liable to supervision under Part 5 of that Act or order him to be released unconditionally. I will declare that the accused is liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
2. I will otherwise hear from the parties on the precise form of order and on what further orders should be made pending the making of that supervision order.

[1] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20(1)(b). There was no suggestion that the criteria in s 20(1)(a) were met.

[3] The prosecution summary was tendered and the facts set out within it were agreed.

[4] The accused's medical history, with the agreement of the prosecution and the accused, is taken from the history as recorded by the psychiatrists who examined him.

[5] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20(1)(b).

[6] M'Naghten's Case [1843] EngR 875; (1843) 10 Cl. & F. 200, 211; 8 E.R. 718, 723 (Tindal CJ).

[7] Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358, 374 (Dixon CJ, Webb and Kitto JJ), quoting with approval from Pope's Treatise on the Law and Practice of Lunacy, 2nd ed (1890).

[9] R v White [2003] VSCA 174; (2003) 7 VR 442, 451 [26] (Chernov JA).

[10] R v Porter [1933] HCA 1; (1933) 55 CLR 182, 186 (Dixon J).

[11] The law reflects this: under s 322K of the Crimes Act 1958 (Vic), a person carries out conduct in self-defence if the person believes the conduct was necessary in self-defence and the conduct is a reasonable response in the circumstances as the person perceives them.

12 M'Naghten's Case [1843] EngR 875; (1843) 10 Cl. & F. 200, 211; 8 E.R. 718, 723 (Tindal CJ).