R v Brewer

[2015] NSWSC 1547

Supreme Court of NSW|2015-10-19|Before: Bellew J, Mr P, Bathurst CJ, Hoeben CJ, Macfarlan J, Hulme J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-10-19

Before

Bellew J, Mr P, Bathurst CJ, Hoeben CJ, Macfarlan J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Introduction

Adam James Brewer has pleaded not guilty to a charge that on 13 March 2014, at Pendle Hill in the State of New South Wales, he murdered Visakesvaran Velupillai ("the deceased").
The Crown has previously consented to the trial proceeding before a Judge alone, without a jury. The statutory framework for a trial before a Judge alone is provided by s. 133 of the Criminal Procedure Act 1986 ("the CPA") which is in the following terms: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
Section 133(2) of the CPA requires that I expose my reasoning process by linking the relevant principles of law with the facts as I find them to be: Flemming v R [1998] HCA 68; (1998) 197 CLR 250 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108] - [110] (Hoeben CJ at CL and Bellew J agreeing). However, I am not required to express all of the matters which necessarily have to be stated to a jury unfamiliar with basic principles of the law: Markou v R [2012] NSWCCA 64; (2012) 221 A Crim R 79 per Macfarlan J (with whom R S Hulme J and R A Hulme J agreed), citing R v Winner [1995] 79 A Crim R 528 at 531.
Further, s 133(3) applies only to warnings. It does not require that every direction given to a jury be referred to when giving judgment in a trial before a Judge alone: W (supra) at [111].

[2]

[8]

The accused's arrest

The accused was arrested by Sgt. Lofts and at the time of his arrest he said (inter alia) the following: You know what, listen to this, I swear on my fucken mum this wombat hit me, no shit, with the fucken thing no shit about four or five times … Yeah, four or five times before I even swung a single punch at him. I use my fist, you know me. I love my fist. Mate I fancy myself with my fist. … The fucken wombat across the road. You know exactly what wombat mate, the fucken Asian that hit me with the fucken um. … crunched the metal broom stick and started smashing me over the head. Look I'm bleeding all over. I tried to have a shower in Boral. They kicked me out. I go yeah, nice aussies youse kicking me out. You know what I don't want to go back to mental, I wanna go back, I wanna go back to gaol.
When placed under arrest the accused said (inter alia): Yeah I understand that. I don't want to go to Cumberland Hospital. … I don't want to go ….
When asked by Sgt. Lofts what had happened, the accused said: Listen … I walked in right, I walked fair dinkum in. I walked straight into his thing. I was walking down the corridor. I was waiting for my missus she was coming through. I was picking up my done at Parramatta. My missus she was coming through, she gonna come with me. We gotta be at Court first thing in the morning … she has to be. We went to Court yesterday at twelve she had to be we … something small. Anyway I took his tucker in for him, his food, got put on the ground. Me being a crim I don't like food on the ground. I took it in for him. He started thinking I was fucken spitting in his food he started going off his head. I said fuck off fucken … and mate I give you my word find a witness I never took one thing from the shop, not a fucken pen, I never stole and never attempted to steal, I mate find a witness he hit me over the head a thousand times mate before I finally got it off him mate and feeding it to him.
When asked by Sgt. Lofts what the deceased had used to hit him, the accused said: A metal, a metal broom. He snapped it in half. Look, I'm bleeding all over. I asked these blokes for a thingo, they just laughed and said fuck off or I'll smash ya.
The accused then said: Loftus … you know what. When you do your research I don't think there's too many unless another Asians going back to his play um yeah I fucken give you my word mate. He stabbed me in the head mate. He attacked me a few times brother I swear on my mum … Listen honestly put me down for starting the fight. Honestly mate put me down for starting the fight. For the record I stabbed the bloke first with a knife in the head first and then in the stomach. That's it take me to gaol brother I don't want to go back to hospital I wanna go to gaol. Gaol is where I belong brother. I started something before I left and I mate kick off when I get back there.
The accused also spoke with Det. Roots at the time of his arrest in the course of which he said (inter alia):
Mate, seven days ago I was planning on jumping off Centrepoint Tower. Do you think I give a fuck about what you're recording you wombat … You think you've taken a bad guy off the street. I'm not a fucken bad bloke. I'm fucken good. I'm one of the good guys.
Generally speaking, the accused appeared to be in a highly agitated state at the time of his arrest.

[10]

The accused's transfer to Cumberland Hospital

The accused was taken from the police station to Cumberland Hospital where he was examined by Dr Mushoriwa Zinatsa, who reported: During this assessment I could not find reason for hospital detention under the Mental Health Act. He is not psychotic and no signs of melancholia were observed on this assessment. He is not … manic. He denies suicidal ideas. His thought form was logical. He told me that he used the knife he was carrying to stab the other person 'because he was using a broom on me'. He denies perceptual abnormality. He is fit to be taken into police custody and be brought before a Magistrate.
Dr Zinatsa certified that at the time of his assessment, the accused was not mentally ill and was not a mentally disordered person.
I should observe at this point that the opinion of Dr Zinatsa as to the accused's mental state at that time is completely at odds with the opinions expressed by Dr O'Dea and Dr Allnutt. I have dealt with this issue when considering the expert evidence below.
THE ACCUSED'S EVIDENCE
The accused gave oral evidence before me and was cross-examined by the Crown. To the extent that he was able to recall the events leading to the deceased's death, his recollection was, generally speaking, consistent with the circumstances of the offending as I have found them to be. The accused said (commencing at T88 L31) that on the morning of the deceased's killing he was in possession of a knife "for protection". He also stated (commencing at T89 L34) that at one point that morning he was carrying a mallet.
The accused explained (commencing at T90 L14) that he had noticed a paper bag on the ground outside the deceased's premises in the arcade. He thought it contained food. He said that when he entered the deceased's premises he yelled out "breakfast", following which the deceased had started to "attack" him. He described (commencing at T94 L34) the deceased going "berko" by picking up a broom and attacking him with it. He described the altercation that followed and said (at T99 L38) that he "pulled out the weapon and lunged at (the deceased)" following which he disposed of it by throwing it into nearby premises. The accused had limited independent recollection of what he had said to the police at the time of his arrest but described himself (at T106 L36) as being "upset about what had happened".
The accused said (commencing at T109 L26) that at the time of the incident he was "getting pills to calm (himself) down" which he later described (at T109 L38) as Rivotrol and Xanax. He also admitted taking Ice in the hours leading up to the incident.

[13]

June - December 2011

On 8 June 2011 Dr Adams, psychiatrist, provided a report to the accused's then solicitors. At that time, the accused had been charged with offences of damaging property by fire, and break enter and steal. On that occasion Dr Adams expressed the following opinion: Mr Brewer provided a clear account of how his behaviour began to deteriorate at around the age of nine years, with increasing conduct problems such as fighting, oppositional behaviour towards authority figures, truanting, destruction of property and eventually offending behaviour. Mr Brewer reported beginning to use cannabis at the age of 12 years, and how his frequency and quantity of use rapidly increased thereafter. He noted that his illicit substance use expanded to include intravenous heroin by the age of 15 years. Although the details of his exact use thereafter were vague, he described a pattern suggestive of fluctuating illicit substance and alcohol use from his early 20s onwards. His description of his most recent pattern of substance abuse was in my opinion in keeping with that of polysubstance dependence.
On 1 November 2011 Dr Allnutt provided a report to the Director of Public Prosecutions in connection with the same proceedings. He reported: In my opinion, at the time that I saw the accused he manifested residual symptoms of a resolving psychotic disorder categorised by flat affect (and) ongoing paranoid thoughts about others plotting to harm him but did not endorse any other significant psychotic symptoms that he has endorsed in the past; I note that he has been prescribed antidepressant and antipsychotic medication and this is probably resulted in an amelioration of his symptoms; he has a history of psychotic phenomena over a significant period of time that has impacted on his functioning; his presentation is complicated by a relatively chronic substance abuse disorder including methamphetamines, amphetamines, heroin and cannabis; while drug induced psychosis is a possible diagnosis, it is most likely that he has an underlying chronic psychotic disorder such as schizophrenia or schizoaffective disorder which is aggravated by intermittent substance abuse. At the time that he saw me he described some symptoms that could be consistent with depression including reduced motivation, poor self esteem, loss of interest in activities, anhedonia and reduced energy; but these could also be attributable to negative symptoms of schizophrenia or side effects to psychotic medication (or a combination); in my view these symptoms are most likely attributable to either medication or his schizophrenia predominantly rather than independent depressive disorder".
In a supplementary report of 16 November 2011 Dr Adams said: In my opinion Mr Brewer's clinical presentation is in keeping with a diagnosis of schizophrenia. He has a history of experiencing classical symptoms of this illness, namely delusions, hallucinations and disintegration of his thought processes. Mr Brewer also has a history of polysubstance dependence.

[18]

March 2014

On the morning of 3 March 2014 (which was only 10 days prior to the death of the deceased) the accused was seen to be pushing a shopping trolley containing a bolt cutter into the rear entrance of the administration block of Blacktown TAFE. A witness followed the accused into a classroom and observed him standing at a whiteboard pretending to teach a class. The accused was writing several words on the whiteboard before turning and sitting at a desk. At that point, he pretended to type on a computer. A security officer attended and entered the classroom and observed the accused sitting at the computer and talking to himself. The security officer asked the accused to leave and said that he would escort him to the railway station. The accused followed the security officer to the rear of the building where he had left the trolley. The accused then left the area.
Later that morning, the police were alerted to the presence of the accused at the Centrelink office at Blacktown. The accused had entered the premises via a rear fire exit, put on a fire helmet and commenced talking to himself. He told Centrelink staff that he wanted to "lay on the train track and die" and said that he was hearing "voices". When police arrived the accused said he wanted to end his life and that he intended to hit himself with a sledge hammer, stab himself and jump from the roof of the Centrelink building. When told he would be transferred to a mental health facility, the accused became aggressive, telling the police that he would stab, fight and kill anyone who came near him.
The accused was taken to Blacktown Hospital. He continued to state that he would fight, kill, stab and murder anyone who came near him. He stated: I know the game, I'll just say it's all bullshit, they will just let me go.
The accused was examined by Dr Baheti, who initially decided that he should be released. After the police had expressed their concerns about the accused being released, Dr Baheti admitted him. The accused was then seen to violently head butt the concrete walls of the hospital building, and was restrained.
Later that day, police received a radio message stating that there was a patient (later identified as the accused) in the roof of Bungaribee House (which is part of Blacktown Hospital) threatening self-harm. Upon arrival, police were advised that the accused broke the bed in his room and used the timber from it to damage the roof and gain access to the roof cavity. He then climbed into the roof carrying various pieces of broken timber from his bed. Police gained access to the roof through a manhole. The accused ran away from them in an attempt to avoid apprehension. He managed to climb through a small window and then jumped onto the ground from the roof. Due to the significant police presence he was apprehended immediately.
As a consequence of those events it was determined that Bungaribee House was not a suitable location at which to house the accused. He was transferred to Cumberland Hospital with the assistance of police. When asked about his actions at Bungaribee House the accused said: I had a fucking brain snap, I'm good now though. The bitch nurse wouldn't give me food or drink. I asked her so many times and she wouldn't give me anything so I had to get out of here to get some.
The accused was examined at Cumberland Hospital by Dr Rudas and Dr Baheti and his past psychiatric history was noted. A history taken from the accused's mother (which she confirmed in evidence) was recorded as follows: She reports that drugs are a big issue in pt life. He has threatened to kill himself at home. She is not aware of previous suicide attempt. She did not know how he had stab wounds on his abdomen. She is concerned about him and thinks he should be in hospital as he is at risk to harm himself.
Further notes taken on the same day record the following additional history provided by the accused's mother: Says pt has problem with drugs. Causes him to have unsettled behaviour. Over last few days prior to admission, not in control of self. Thoughts were all over the place. Also talking about suicide. Not sure what drugs he uses. At times gets overactive … at other times not. At times gets v depressed - 'that's why he drugs'. Also gets anxious. Went to prison one time because he set a fire in a bin which spread to a building, burned it badly. While in prison diagnosed schizophrenia. He gets paranoid at times, says people have been in his room. At one time he was carrying a knife 'to stop people trying to stop him committing suicide"!! Pts fa had alcohol induced psychosis. Paternal uncle committed suicide. Half bro has schizophrenia.
On 6 March the accused was examined by Dr Hoult, psychiatrist who noted: "He admits to hearing voices until 2 days ago. His speech is slightly slurred. He does not yet appear to be adequately care for himself. Still mentally disturbed".
The accused remained at Cumberland Hospital until 11 March 2014. On the day before his discharge the accused was interviewed by a social worker who noted (inter alia):
Burnt a building down 5 yrs ago - when first started hearing voices.
Medical assessments post arrest
The accused has undergone a number of medical assessments since being taken into custody. Whilst I do not propose to set out the results of those assessments in their entirety, I do note the following: 1. on 27 April 2014 a mental health review noted that the accused displayed illogical thought processes; 2. on 14 May 2015 it was noted that the accused was hearing voices. Thought form disorder was detected; 3. on 24 May 2014 the accused reported hearing voices; 4. on 22 September 2014 a deterioration in the accused's mental health was noted, particularly in terms of the level of his paranoia; 5. on 7 October 2014 it was noted that the accused had persecutory beliefs, and that he thought that people were following him and interfering with his food.

[20]

The evidence of Dr O'Dea

In his report Dr O'Dea (commencing at [42]) diagnosed the accused as suffering from schizophrenic illness, complicated by polysubstance use disorder and a vulnerable personality with antisocial traits. Dr O'Dea went on to say (commencing at [45]): [45] On the basis of Mr Brewer's history, and the information available to me, it seems reasonable to assume that his schizophrenic illness was not under adequate control in the weeks leading up to the alleged offence and in the weeks following the alleged offence. On the basis of the natural history of schizophrenic illnesses, it is reasonable to assume that at the time of the alleged offence, his schizophrenic illness would have been similarly active. His apparent demeanor at the time of his arrest by police was in keeping with this view. [46] As such, and from a psychiatric perspective, it could be argued that he has the defence of substantial impairment available to him. His schizophrenic illness would be considered an underlying condition, and his active symptoms and signs of his schizophrenic illness at the time of the alleged offence, (including paranoia and affective instability) would be considered an abnormality of the mind arising from this underlying condition. It could be argued that this abnormality of the mind arising from this underlying condition would have substantially impaired his capacity to control his actions in relation to the alleged offence.
Significantly however, Dr O'Dea also said (commencing at [48]): [48] In addition, I would consider that, from a psychiatric perspective, Mr Brewer would also have the insanity defence available to him. His schizophrenic illness would be considered a disease of the mind, and his active symptoms and signs of his schizophrenic illness at the time of the alleged offence would constitute a defect of reason by virtue of a disease of the mind. It could be argued that this defect would have resulted in Mr Brewer not knowing that his actions in relation to the alleged offence were wrong, in so far as he would not have been able to reason about the matter with a moderate degree of sense and composure. [49] Whilst self-defence is a legal issue, and Mr Brewer may have believed that the deceased may have kill him, his actions in not fleeing the scene when he apparently had the opportunity to do so, if in fact that was the case, would point to his problems at the time with his ability to reason about the matter with a moderate degree of sense and composure. [50] Regardless of the outcome of the Court proceedings, Mr Brewer will require long term, successful and ongoing psychiatric treatment, initially in a secure psychiatric facility, and long term abstinence from alcohol and illicit substance use, in order to maximise his response to treatment and minimise his risk of further offending behaviour, with the insanity defence likely to facilitate this process.
When asked by the Crown Prosecutor to explain the basis of his opinion that the accused had available to him a defence of mental illness, Dr O'Dea responded (commencing at T192 L8): A. As detailed there, because I diagnosed him as suffering from a schizophrenic illness, which I would consider would satisfy the concept of a disease of the mind, and I considered, extrapolating back to the time of the alleged offence, that it could be argued that at that stage he was suffering from a defect of reason by virtue of that disease of the mind or schizophrenic illness, and it could be argued that, on that basis, he was not able to reason about the matters in relation to the alleged offence with a moderate degree and sense of composure, and therefore that that could satisfy the second arm of the M'Naghten rules. Q. And in paragraph 46 you say that he was substantially impaired in his ability to control his actions? A. Yes. Q. And how do you compare that inability to control his actions due to a substantial impairment, how do you compare that with what you've indicated in relation to the insanity or mental illness defence? A. Well I am not sure how to answer that, but I am not sure that I, you know, there's a direct comparison in so far as, from a psychiatric point of view, his schizophrenic illness, and the disabilities and impairments related to that at the time of the alleged offence would seem to me to satisfy both of those sets of conditions, the insanity defence, of course, being more prescriptive in detail, and the substantial impairment one being less so. Because my view is that they're different kinds of concepts, but a schizophrenic illness I would consider would satisfy both an underlying condition, as set out in the substantial impairment defence, and a disease of the mind in the insanity defence. Q. And of the two of them, so far as you're concerned, does one fit better the circumstances of the accused than the other? A. Yes, I think that the one that probably fits better for Mr Brewer is the insanity defence, on the basis that it is something that I highlighted in paragraph 50. Whilst in terms of criminal responsibility both would fit, from a psychiatric point of view, the insanity defence, his condition is much more a disease of the mind as we would understand it, I guess, than an underlying condition, which is a bit more general.
He was then asked in cross-examination (commencing at T197 L33): Q. … so would it be fair to put it this way; that he actually, because of his mental illness, was not capable of taking the sensible and safe option that maybe a rational not mentally ill person was? A. Well that's the upshot, isn't it. The thesis is that his mental impairment, or sorry, mental illness impaired his ability to do that, to an extent that it rendered him, from the perspective of the law, not capable, because none of this is all or none, where it's either he's 100% in control or zero per cent in control and 100% out of control.
When asked by me whether, in terms of any defence of mental illness, he took the view that the accused did not know the nature and quality of his act, or that he did not know that what he was doing was wrong, Dr O'Dea responded (commencing at T197 L50): A. Yeah, my view is that he didn't know what he was doing was wrong, and I based that view on what I understand in the legal circumstances is meant by that, which is that he was not able to reason about the matter with a moderate degree of sense and composure, as I understand it's been detailed in case law. Q. And what was it in particular about his mental condition at the time that, in your view, prevented him from being able to reason in that way? A. His overall schizophrenia and, well, schizophrenic illness, and of course there's two components when I say that. One is the sort of active symptoms that I hypothesised at the time, because, of course, I'm extrapolating backwards, and the other is, in addition to the active symptoms, the underlying deficits, and of course the active symptoms at the time that I'm postulating are significant problems with his affect, insofar as he was irritable, angry and aroused, to a, you know, whilst everybody has those emotions from time to time, his was a sustained and disabling level of those emotions, together with his level of paranoia at the time, together with the inconsistent account, the account of experiencing auditory hallucinations of his father, and that was sort of the upfront symptoms that would have been causing that, and the underlying ones, which are those of schizophrenia, which is essentially considered a brain disorder, there's a whole lot of underlying brain deficits, which is in areas of judgment and understanding and weighing up of the various components of what people should or shouldn't do. Schizophrenia is fundamentally a cognitive condition. Q. I think you acknowledged in that answer that, obviously, you examined the accused sometime after the event? A. Yes. Q. In terms of the symptoms that you've described, I take it that what you're saying is that, in your opinion, given the history and given all the material of which you were provided, the likelihood is that he was exhibiting some or all of those symptoms at the time of the offending? A. That's correct, and I think, as I've said in the report, it was based on the fact that there was a number of psychiatrists, not 100% of them, but a number of psychiatrists who were reporting, leading up to the alleged offence, that he had a major schizophrenic illness, and then, after the event a number of psychiatrists considered that he was having an ongoing psychosis, and the nature of schizophrenia and the natural history of schizophrenia is such that it doesn't wax and wane where people are very unwell one day and then two days later they're very well and then they become very unwell again subsequent to that. They're usually fluctuating, but very unwell through the whole process, and therefore I think there is good reason to extrapolate and speculate that in between times, that is at the time of the alleged offence, he was still very unwell from the perspective of his schizophrenia.

[21]

The evidence of Dr Allnutt

In his report, Dr Allnutt concluded (at p. 14) that the accused suffered from paranoid schizophrenia, or a schizoaffective disorder, which was aggravated by the ingestion of various substances. Dr Allnutt took the view that the accused's illness had been compounded by a persisting tendency to discontinue prescribed medication, and by a severe substance use disorder characterised by the use of cannabis, methamphetamines, heroin, alprazolam, cocaine and (possibly) alcohol.
Dr Allnutt specifically considered the accused's mental state at the time of killing the deceased. He concluded that in light of the accused's family history there was a likely genetic predisposition to the development of a chronic psychotic disorder such as schizophrenia. He noted, in particular, that at the time of the accused's various hospital admissions between January 2014 and March 2014, the accused had reported auditory hallucinations and thoughts of being followed and being under threat.
Dr Allnutt concluded that the accused's history was consistent with a propensity to engage in impulsive behaviour when in a psychotic state and when using substances. He said in particular (at p. 15 of his report): Thus at the material time of the alleged offending occurred the defendant was experiencing a constellation of psychotic and anxiety symptoms and was also likely disinhibited due to intoxication by methamphetamine that he had recently taken (I did not have a blood test). The defendant describes entering the deceased's premises with the intention of bringing hot food inside. It is after this that the alleged interaction and (sic) the defendant commenced. This appears to be have been a relatively impulsive decision on the part of the defendant. Given the probable underlying diagnosis of paranoid schizophrenia, aggravated by methamphetamines I believe there are grounds to conclude that he manifested both an "underlying condition" (paranoid schizophrenia) causing an "abnormality of mind" (psychosis). Thus the defendant was experiencing a state of mind that could have impacted on his capacity to understand events, know right from wrong, and control his actions to a substantial degree. Determining whether this was the case is difficult because the defendant's perception of being under attack (based on the CCTV video) is reality-based. That is, the defendant correctly understood that he was involved in an aggressive interaction with the deceased and that there was a potential for serious harm. The CCTV footage is somewhat ambiguous, as it appears that both deceased and accused alternated in their role as aggressor (this is however a matter for the court). In my view determination needs to be made as to whether or not the stabbing would be regarded as purely an attack, purely defensive or a "pre-emptive strike" on the part of the accused - that is a defensive attack. His account is that it was of a defensive nature. At the time of his arrest the video footage does not reveal overt symptoms of psychosis. He does report that he felt justified in regard to his actions at the material time of the alleged offence, which persisted while in police custody. There is however evidence of psychotic symptoms preceding and following the alleged offence and on this basis on balance he was psychotic at the material time of the alleged offence.
When giving evidence Dr Allnutt was taken (commencing at T167 L42) to the contents of paragraph [48] of the report of Dr O'Dea, in which Dr O'Dea had expressed the view that the accused had a defence of mental illness available to him. When asked whether he agreed with that opinion Dr Allnutt said: A. Can I say that, I think the issue is difficult, it's a difficult determination to make. On the one hand, this offence is, to a large degree, reality based. Q. Can I stop you there. That's a phrase you've used throughout your report and consistently; what do you mean by that? A. Well, that there are reasonable grounds to be of the view that at the time of the alleged offending, he felt threatened for real reasons, rather than feeling threatened because of a frank delusional belief in absolute terms. And what makes it difficult, is that there is potentially an overlap between being psychotic, and prone to feel threatened and being threatened which makes it difficult to determine around the relative contribution that the illness makes to the offending.
Dr Allnutt then continued (commencing at T172 L11): The one thing that does go towards mental illness defence, and towards not knowing right from wrong, I think, is his apparent sense of justification, that seems to me to be authentic, but at the time that the CCTV when they arrest him, and also to some degree, I think it came across in his evidence, that he still feels justified that he was being attacked. Justification, when it's derived from a delusional belief is an irrational justification and interferes with the person to reason about wrongfulness because you feel it's right. Really, it's a spectrum that the Court has to consider. If the Court is considering any one of those defences. It lies somewhere in that spectrum and it's difficult to determine where on that spectrum it lies.
Dr Allnutt was firm in his opinion (at T180 L20) that the accused's psychosis was present prior to his act of killing the deceased. Importantly, in terms of a defence of mental illness, Dr Allnutt said (commencing T188 L10): One of the things that is always difficult to differentiate if one's considering a substantial impairment defence verses an insanity defence, is distinguishing between the arms so, on an insanity defence, he would have a disease of the mind…Distinguishing between knowing right from wrong being substantially impaired to know right from wrong, or being able to reason about the matter with a moderate degree of sense and composure, I'm not sure how one distinguishes those two. I would say that an insanity defence is open to him on that basis. And it depends on how the Court distinguishes between those two arms as to which box the Court would put it into.
THE ISSUES
I am satisfied beyond reasonable doubt that the accused's act of stabbing the deceased caused the deceased's death. I am also satisfied that in stabbing the deceased the accused acted voluntarily. Indeed, the parties agreed that there was no issue as to either of those matters.
Ultimately the parties also agreed, having regard to the entirety of the evidence, that the first substantive issue to be considered was whether or not a defence of mental illness was available. It was agreed that in the event that I were to conclude that such a defence was not available, issues of self-defence and substantial impairment would arise. However, before turning to any of those issues it is necessary for me to consider a discreet matter raised by counsel for the accused.

[22]

The accused's disavowal of a defence of mental illness

In the course of his evidence (commencing at T110 L25) the accused said the following: Q. You don't want to run a defence of mental illness, that is in the sense that you were in effect criminally insane at the time, do you? A. No. Q. Why don't you? A. Because I'm not. Q. Why do you say that? A. Because I'm not. I know what happened that day, I know what I was feeling. Q. What were you feeling? A. Well, I was normal. Q. Why were you normal? A. Well, because I was.
In respect of the accused's assertion that he was "normal", Dr Allnutt said (commencing at T179 L44) A. No, I wouldn't put much weight on a person with ‑ if it's accepted that he was experiencing psychotic symptoms, then saying he's normal would be a lack of insight. And that's consistent with psychosis. So I wouldn't put weight on his interpretation of his feeling normal. And there's also what he meant by the word "normal". But we know he was taking substances. HIS HONOUR Q. What is normal to him may be completely abnormal to someone else? A. Correct.
Mr Skinner, who appeared on behalf of the accused, confirmed (commencing at T164 L1) that his instructions were "not to run a defence of mental illness". He said that he considered himself bound in that regard. However he later accepted if the issue of a defence of mental illness arose on the evidence it should, notwithstanding his instructions, be addressed. Mr Skinner said (at T164 L12): "…..if its raised on the evidence, it's a matter that should be considered. If I can assist in that regard, I will. I won't attack it, I don't think I'm obliged to do that".
In the course of submissions Mr Skinner confirmed that position (at T210 L40) and conceded (commencing at T212 L33) that he could not "rationally argue against considering a defence of mental illness first before considering any other issue that might arise on the evidence".
I was referred by Mr Skinner to a decision of the Court of Criminal Appeal in Dezfouli v R [2007] NSWCCA 86. In that case the appellant, after a special hearing conducted pursuant to s. 21 of the Mental Health (Criminal Procedure) Act 1990, was found not guilty, on the grounds of mental illness, of charges of manslaughter and maliciously damaging property by fire. Bell J (as her Honour then was) noted (at [43]) that in the course of the special hearing senior counsel appearing on behalf of the appellant had not acted in accordance with his instructions in putting to the jury that there was "no doubt" that the appellant was insane. Her Honour concluded (at [46]): [46] The scheme of the Act is designed to ensure that an accused person's interests are protected in circumstances in which it is recognised that because of mental illness or incapacity he or she lacks the capacity to make reasoned forensic decisions. The special hearing was conducted by Mr Toner in an endeavour to advance the appellant's interests as he perceived them to be. Counsel was not required to follow the appellant's instructions.
The present proceedings are a trial. They are not a special hearing. Both Dr Allnutt and Dr O'Dea came to the view that this accused is fit to be tried. Accordingly, her Honour's observations as to the relevance of the scheme of special hearings have limited application to the present circumstances.
As I have noted, Mr Skinner accepted that in the present case a defence of mental illness is squarely raised by the evidence of Dr Allnutt and Dr O'Dea. In R v Foy (1922) 39 WN (NSW) 20, Cullen CJ observed (at 21): "As it would be contrary to justice that a person should be convicted of crime committed whilst he was insane merely because he himself later does not set up that defence, an issue on the question might properly be left to the jury though (the accused) relies at the trial on a defence on the merits only."
For present purposes, I constitute the jury. In the circumstances, and given the opinions of Dr Allnutt and Dr O'Dea, the defence of mental illness must be considered, notwithstanding the accused's stated position and his instructions to his counsel.

[23]

The statutory provisions

Section 38 of the Mental Health (Forensic Provisions) Act 1990 ("the MHFPA") is in the following terms: 38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be reasonable, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness. (2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the court may remand the person in custody until the making of an order under section 39 in respect of the person.
In the event that a special verdict is returned pursuant to s.38 of the MHFPA, the provisions of s.39 then apply: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the court may order that the person be detained in such place and in such manner as the court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the court considers appropriate. (2) The court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. (3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the term of the order.
I note that s. 37 requires that certain explanations be given to the jury where a question of mental illness is raised. As I constitute the jury in the present proceedings, I have had regard to the provisions of s. 37.
The principles applicable to a defence of mental illness
In order for a defence of mental illness to be made out, there must be evidence that at the time of committing the act causing the deceased's death the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong: R v McNaughten (1843) 8 ER 718; R v S [1979] 2 NSWLR 1.
The test was stated by Dixon J in R v Porter (1933) 55 CLR 182 at 189-190 in the following terms: The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know, in this sense, whether his act was wrong if, through a disease or defect or disorder of the mind, he could not think rationally of the reasons which, to ordinary people, make that act right or wrong? If, through this disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.
In R v Stables [2014] NSWSC 697 Hidden J considered (commencing at [28]) the proper approach to be taken in a case where an accused is charged with a crime of specific intent, and a defence of mental illness is raised. His Honour noted that in R v Minani [2005] NSWCCA 26; (2005) 63 NSWLR 490 Hunt AJA (with whom Spigelman CJ and Howie J agreed) had said (at [32]): Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512-514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issue should be determined in a case where there is evidence of mental illness is: (1) was it the act of the accused which, in this case, caused the malicious wounding? (2) was he criminally responsible for doing that act? (3) was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent.
Hidden J noted in Stables that there have been cases in which the issue has been approached in accordance with the decision in S, and in the absence of any reference to the decision in Minani. The approach in S involves determining whether all of the requisite elements of the offence have been proved before considering the availability of a defence of mental illness. I made reference to these issues in R v Brindley [2014] NSWSC 1274 and concluded (as had Hidden J in Stables) that the adoption of either approach in the circumstances of that particular case produced the same result.
In the present case, I have already concluded that I am satisfied beyond reasonable doubt that the accused's voluntary act caused the death of the deceased. In my view, the approach set out in Minani, which follows that of the High Court in Hawkins, is the preferable one. Adopting that approach, and having already concluded that I am satisfied beyond reasonable doubt that the accused's voluntary act caused the deceased's death, I must proceed to consider the defence of mental illness. However, I should say that the adoption of the approach set out in S would lead me to be satisfied beyond reasonable doubt that in stabbing the deceased, the accused intended to inflict grievous bodily harm upon him. That would similarly lead to a necessity to consider the defence of mental illness. It follows that such defence arises for consideration, irrespective of the approach which is adopted.

[24]

CONSIDERATION

I have already outlined the evidence of Dr Allnutt and Dr O'Dea. Both of them had available the voluminous material documenting the accused's history of mental illness. Both concluded that the accused was suffering from a schizophrenic disorder at the time of stabbing the deceased.
Dr O'Dea was firm in his opinion that at the time of killing the deceased the accused was not able to reason about the circumstances with a moderate degree of sense and composure. He said that in his opinion the accused did not know that what he was doing in stabbing the deceased was wrong, a circumstance which he attributed to the accused's schizophrenic illness.
Dr O'Dea acknowledged that in expressing these opinions he had obviously assessed the accused sometime after the event, such that he had, in effect, worked backwards. However, it is clear from his evidence that Dr O'Dea placed considerable weight on the material documenting the accused's history of mental illness, some of which is summarised at [45] and following above. Importantly, Dr O'Dea made the point that although schizophrenic symptoms might, over a period of time, be seen to fluctuate in terms of their severity, a person with a schizophrenic illness is "very unwell through the whole process".
Dr Allnutt took the view that at the time of the offending, the accused was experiencing a state of mind that had the capacity to impact, to a substantial degree, upon his understanding of events and importantly, upon his capacity to know right from wrong.
Dr Allnutt acknowledged that the present case was, from a psychiatric perspective, a difficult one. He explained that such difficulty arose, at least in part, from the fact that there was some evidence which supported the view that the accused felt threatened by the deceased's actions "for real reasons", rather than because of a delusional belief. However, he expressed the view that one particular factor which supported the existence of a defence of mental illness was the accused's apparent sense that his actions in killing the deceased were somehow justified. He explained that justification which is derived from a delusional belief is an irrational justification, and one which interferes with the person's ability to reason about the wrongfulness of his or her act. Ultimately, and despite his acknowledgement that the case was a difficult one, Dr Allnutt concluded that a defence of mental illness was open.
In my view, the opinions of Dr O'Dea and Dr Allnutt provide clear support for the conclusion that a defence of mental illness is made out. I accept their opinions that the accused was suffering from a schizophrenic disorder at the time of killing the deceased. Clearly, that is a disease of the mind. Accepting the opinions of Dr O'Dea and Dr Allnutt, that disease of the mind gave rise to a defect of reason on the part of the accused, which resulted in the accused not knowing that what he was doing was wrong, having regard to the everyday standards of reasonable people. For the reasons explained by Dr Allnutt, the accused's evidence that he was "normal" at the time should be rejected.
If medical evidence as to an accused's mental illness is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it: R v Afele [2014] NSWSC 366 at [68] and the authorities cited therein. The opinions of Dr O'Dea and Dr Allnutt, both as to the nature of the accused's underlying mental illness and its effect on his actions in stabbing the deceased, are consistent. However, the opinion of Dr Zinatsa (set out at [36]-[37] above) is to the contrary. In those circumstances, the expert evidence could not be said to be unanimous. However, neither the Crown nor counsel for the accused submitted that I should accept the opinion of Dr Zinatsa over the opinions of Dr O'Dea and Dr Allnutt as to the accused's mental state at the time of his offending. Dr Allnutt gave evidence (commencing at T178 L20) that although he had regard to Dr Zinatsa's opinion, he concluded that the accused was mentally ill at the time of his offending. Importantly, in reference to Dr Zinatsa's opinion, Dr Allnutt said (commencing a T178 L30): "That document is about eight lines. I don't know the I first of all don't know the doctor's qualifications. There's no evidence of the quality of the assessment, what he asked for. And I've also, in my experience, it's not uncommon for, at this stage, where one's had the opportunity to look at everything, to disagree with what might have been a cross section of assessment done in a busy outpatient unit or a busy ED at the material time. Interestingly enough, on the DVD, he doesn't manifest overt symptoms of mental illness either in his interaction with police and that's probably what the doctor saw. But I don't think the doctor had the entire brief in order to have all the information that was available to him that's been available to us so this is an on balance opinion, looking at everything".
The evidence indicates that Dr Zinatsa is in fact a Psychiatric Registrar. There is therefore no doubt that he was appropriately qualified to express the opinions set out in his report. However, as Dr Allnutt pointed out, there is no evidence at all as to the nature and extent of Dr Zinatsa's assessment of the accused. What is clear is that unlike Dr Zinatsa, both Dr Allnutt and Dr O'Dea had a substantial amount of documentary material available to them to assist in forming an opinion as to the accused's mental state at the time of killing the deceased. It is clear that Dr Zinatsa did not have that material. It is also clear that, as one might expect, both Dr Allnutt and Dr O'Dea placed significant weight on that material in reaching their conclusions.
In these circumstances, I regard the opinions of Dr Allnutt and Dr O'Dea to be substantially more reliable, and deserving of far greater weight, than that of Dr Zinatsa. I do not accept the opinion of Dr Zinatsa that at the time of his examination the accused was neither mentally ill nor mentally disordered.
It should also be noted, bearing in mind my observations in [103] above, that I invited both the Crown and counsel for the accused to draw my attention to any evidence which might cast some doubt upon the reliability of the opinions of Dr O'Dea and Dr Allnutt. Counsel for the accused did not point to any such evidence. The Crown faintly submitted that it would be open to me to conclude from the CCTV footage that the accused gave the impression of "acting normally" before he stabbed the deceased and that he was "coherent and descriptive" when later speaking to the police. However the Crown accepted that Dr Allnutt had specifically alluded to the fact that a person suffering from schizophrenia may appear objectively "normal". Ultimately, the Crown accepted that in terms of the defence of mental illness there was not "a lot of scope" to go beyond the expert evidence.
For all of these reasons I am satisfied that the accused was suffering from a schizophrenic illness at the time of stabbing the deceased, which resulted in his not knowing that what he was doing was wrong. I am therefore satisfied that a defence of mental illness is established. In these circumstances it is not necessary for me to consider any of the remaining issues which were foreshadowed.
I am conscious of the fact that the members of the deceased's family suffered a sudden and indescribable loss on the morning of 13 March 2014. Some of them have been present in Court during the course of the trial and have heard and seen parts of the evidence as it has been given. I am hopeful that the conclusion of these proceedings may assist in bringing them some degree of closure, and I extend the sincere sympathy of the Court to each of them.