[1998] HCA 68
Markou v R [2012] NSWCCA 64
Mizzi v R (1960) 105 CLR 659
[2005] NSWCCA 226
R v M'Naghten (1843) 8 ER 718
R v Porter (1933) 55 CLR 182
Source
Original judgment source is linked above.
Catchwords
[1998] HCA 68
Markou v R [2012] NSWCCA 64
Mizzi v R (1960) 105 CLR 659[2005] NSWCCA 226
R v M'Naghten (1843) 8 ER 718
R v Porter (1933) 55 CLR 182
Judgment (2 paragraphs)
[1]
Judgment - ex tempore (revised)
INTRODUCTION
On 16 October 2010 the Crown presented an indictment against William Cahill (to whom I shall refer as "the accused") containing three counts. The first count alleged that on 10 December 2015, at Camperdown in the State of New South Wales, he murdered Brian Anthony Liston. The second count alleged that on the same date, and at the same place he was armed with an offensive weapon, namely a knife, with intent to commit an indictable offence, namely to assault Paramjeet Pal. The third count alleged that on the same date, and at the same place, he was armed with an offensive weapon, namely a knife, with intent to commit an indictable offence, namely to assault Colin Semaan.
On 5 December 2016 Hidden AJ found that the accused was unfit to be tried and referred the matter to the Mental Health Review Tribunal ("the Tribunal"): R v Cahill [2016] NSWSC 1697.
On 27 January 2017, pursuant to s. 16 of the Mental Health (Forensic Provisions) Act 1990 ("the Forensic Provisions Act") the Tribunal determined that the accused was unfit to stand trial, and would not become fit to be tried for the offence of murder within 12 months of the court's earlier finding of unfitness. On 28 July 2017 the Tribunal confirmed that the accused was unfit to be tried.
It is in those circumstances that the matter comes before me as a special hearing pursuant to s. 19 of the Forensic Provisions Act, which is in the following terms:
19 COURT TO HOLD SPECIAL HEARING AFTER ADVICE RECEIVED FROM DIRECTOR OF PUBLIC PROSECUTIONS
(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.
(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.
(4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned. Having regard to the provisions of s 19, the Crown tendered a letter of 2 March 2017 from the Director of Public Prosecutions to the Registrar of the Court which became exhibit A. That letter confirmed, pursuant to the provisions of s 19, that the Director of Public Prosecution intended to proceed with the charges against the accused. The letter went on to request that the matter be listed for a special hearing as a matter of urgency. Pursuant to s 21A of the Act a special hearing is to be conducted by judge alone, unless an election is made by either the Crown or the accused that there be a jury. No such election was made by either party in the present case.
Exhibit A is a letter from the Director of Public Prosecutions confirming, pursuant to s. 19(2), that the matter is to proceed.
Pursuant to s. 22(1) of the Forensic Provisions Act, the following verdicts are available to be returned on a special hearing:
1. that the accused is not guilty of the offence charged;
2. that the accused is not guilty on grounds of mental illness;
3. that on the limited evidence available the accused committed the offence charged; and
4. that on the limited evidence available the accused committed an offence available as an alternative to an offence charged.
As to (iv), manslaughter is an available verdict given that count 1 alleges murder.
The evidence relied upon by the Crown is primarily contained in Exhibit B which consists of two lever arch folders of documents, together with two DVDs. The evidence in the case of the accused, which is Exhibit 1, consists of three reports of Dr Furst of 21 March 2016, 3 November 2016 and 23 August 2017, along with clinical notes compiled within Justice Health. Dr Furst and Dr Martin each gave oral evidence in the hearing before me.
Pursuant to s. 21A of the Forensic Provisions Act, a special hearing is to be conducted by a judge alone unless an election is made by either the Crown or the accused that there be a jury. No such election was made in the present case. The statutory framework for a trial before a judge alone is provided by s. 133 of the Criminal Procedure Act 1986 (NSW) ("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 such 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: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108]-[110]. That said, 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 per Macfarlan JA (with whom R S Hulme J and R A Hulme J agreed) citing R v Winner (1995) 79 A Crim R 528 at 531.
I should also note that the provisions of s. 133(3) of the CPA apply only to warnings, and do not require that every direction which would be given to a jury be referred to when giving a judgment in a trial before a judge alone: W at [111]. For present purposes I constitute the jury. I have taken all of those principles into account and have approached my judgment accordingly.
THE FACTS
The facts of the offending are not in dispute. The evidentiary material which establishes those facts may be summarised as follows.
In December 2015 the accused lived in premises in Church Street, Camperdown. He had lived there since 15 May 2015. The premises comprised part of a residential unit block which had been acquired by the Metro Community Housing Cooperative, an organisation funded by the New South Wales Government for the purposes of providing transitional housing for people with mental health conditions.
On the afternoon of 10 December 2015 the accused attended the Camperdown Community Mental Health Centre and requested to see his care co-ordinator, David Ball. Mr Ball was not there at the time, as a consequence of which the accused was seen by Tamara Suzuki, the acting team leader of the Sydney Local Health District Mobile Assertive Treatment Team. Ms Suzuki had apparently met the accused previously, firstly in 2008 at the Concord Centre for Mental Health, and again in about November 2015.
It seems that the accused attended the Centre on that day seeking assistance regarding his finances. He said, in particular, that he had not received an anticipated payment of $400 from the NSW Trustee and Guardian which he had planned to use to purchase items for his premises on a shopping trip with Mr Ball that had been organised for the following day. Ms Suzuki made enquiries and informed the accused that she had been unable to contact the NSW Trustee and Guardian but had left a message and that someone from the team would contact him as soon as they had heard anything. The accused thanked her for trying and told her that his plans for the week were "nothing, just shopping with David tomorrow". The accused then left the centre.
The importance of the interaction between the accused and Ms Suzuki is that Ms Suzuki did not observe anything in terms of the accused's behaviour or demeanour at that time which might have indicated that he was acutely psychotic. In particular, he did not display any obvious agitation, frustration, irritability or mood fluctuation.
At about 8.30pm on 10 December 2015, Brian Liston was at a bus stop on Salisbury Road, Camperdown. That bus stop was in close proximity to the building in which the accused resided. Mr Liston had attended a German class in premises nearby and was, it seems, waiting for the bus to take him home in accordance with the practice that he generally adopted.
At about this time two members of the public, Joshua Smart and Terina Toko, were in a car which had parked on Mallett Lane, about three metres north of the intersection with Salisbury Road. Mr Smart was in the passenger's seat and Ms Toko was in the driver's seat. Both of them saw Mr Liston sitting on his own at the bus stop.
Mr Smart saw the accused leaving his premises. Both he and Ms Toko recognised him as one of the residents of the unit block. They observed that the accused was not wearing shoes at the time and they both watched him walk towards the bus stop where Mr Liston was sitting. Ms Toko observed the accused reach Mr Liston and appear to speak to him for about 5 seconds. She then saw the accused swing a knife in his right hand towards Mr Liston's chest.
As soon as that motion occurred Ms Toko heard Mr Liston start screaming:
"Why are you doing this?"
Mr Liston then got up and started to run but fell over in the street. Ms Toko watched as the accused went over to Mr Liston and continued to stab him on the roadway. She said the stabbing motions were slow and long. She could see blood coming through Mr Liston's top. She said that this lasted for a few seconds before the accused walked away.
Paramjeet Pal lived in a unit in the same unit block as the accused. Mr Pal had been inside his unit and had heard Mr Liston screaming:
"Please stop stabbing me. Stop. Stop. Somebody help. Somebody help me. He is going to stab me to death".
Mr Pal looked out of the window facing onto Salisbury Road and saw the accused (whom he recognised from seeing him in and around the unit block) and Mr Liston having what he described as an "altercation" on the median strip. He described Mr Liston as apparently being in absolute fear, trying to get away from the accused. The accused began to chase Mr Liston. Mr Pal said he saw Mr Liston fall over the median strip as he was trying to run away, continuing to yell:
"Get away from me".
Mr Pal saw the accused trip over Mr Liston and fall onto the road, following which the accused got up and stood over Mr Liston with one foot on either side of him and a knife in his right hand. Mr Pal said he saw the accused lean down and stab Mr Liston three times while he lay on the ground screaming. After the third stab Mr Pal said that the accused raised his hand and made a slashing motion with the knife across Mr Liston's body. Mr Pal was not sure whether this movement hit Mr Liston or not.
Having made these observations Mr Pal ran outside and onto Salisbury Road. He saw that Mr Liston was covered in blood and he called out for people nearby to call police and an ambulance. He saw the accused standing on the other side of Salisbury Road with a man named Colin Semaan. At that time Mr Pal saw the accused lash out at Mr Semaan with the knife in his right hand, before turning around to walk towards Mallett Street. Mr Pal then ran towards the accused and kicked him in the back. The accused stumbled forward and then turned around and charged at Mr Pal, still holding the knife and slashing towards his direction. The knife did not strike Mr Pal. In the same motion the accused made another slashing attempt towards Mr Semaan.
In the meantime, Mr Smart was observing what had occurred. He said that as the accused initially reached Mr Liston at the bus stop, he bent down slightly and struck Mr Liston in the chest with his right hand. Mr Smart did not see the knife at that stage and thought that the accused had punched Mr Liston. He said that Mr Liston jumped up and yelled out and tried to push the accused away. There followed a scuffle for a couple of seconds, after which the accused turned around and began to walk away from Mr Liston towards the unit block. It was at that stage that Mr Smart saw that the accused was holding a knife with what he described as a silver blade about 15 centimetres long which had "a lot of blood on it".
According to Mr Smart, as the accused walked away Mr Liston yelled:
"You've just stabbed me. I've been stabbed".
Mr Smart saw Mr Liston move his hands to his chest and stumble onto Salisbury Road. He saw the accused walk away for a short distance before turning around and running towards Mr Liston, holding the knife out in front of his body and pointing it at him. Mr Smart said that at one point Mr Liston threw one of his shoes at the accused, apparently in an effort to distract him. This was to no avail. Mr Liston tried to run around the accused but the accused grabbed him and took hold of the back of his shirt. Mr Smart said the accused then began to stab Mr Liston wildly with the knife as Mr Liston continued to struggle to get away.
According to Mr Smart, the accused appeared to be stabbing Mr Liston randomly, anywhere he could land the knife. He said he saw the accused stab Mr Liston five to ten times in his upper and lower chest and the upper arms. Mr Liston broke free and attempted to run away across Salisbury Road but after a few steps he tripped and fell to the ground, landing onto his back. It was at that stage that Mr Smart got out of his car and approached Mr Liston to render assistance. At that point he saw the accused walk towards Mr Liston and bend down and take hold of his hair, using his left hand. He said that with his right hand the accused stabbed Mr Liston in the face and neck area very slowly and deliberately. Mr Liston yelled:
"Why are you doing this to me?"
The accused did not respond but pulled the knife out and stabbed Mr Liston again, slowly and deliberately in the same area, at which time Mr Smart said he saw blood coming from Mr Liston's neck. Mr Pal then intervened in the manner I have earlier described.
After Mr Pal's intervention (and that of Mr Semaan) the accused was seen to walk in the opposite direction past Mr Pal towards the Royal Prince Alfred Hospital on Salisbury Road. Mr Pal followed him and he and another member of the public tried to corner the accused. As they did so they were yelling:
"Drop the knife. Drop the knife".
At that point the accused turned around and threw the knife into the dirt on the nature strip under a tree. Mr Pal then grabbed hold of the back of the accused's shirt and remained there until the police came and arrested him a short time thereafter. Mr Pal observed that the accused sat on the ground and did not say anything. He described the accused's eyes as being "wide". He said that he seemed very alert, and that he was looking at everything that was going on and listening to him (ie Mr Pal) but did not respond. He said that each time an onlooker would yell something, the accused would look directly up at them.
Mr Semaan had been driving north along Salisbury Road and had seen a scuffle on the right-hand side of the roadway. He said that Mr Liston was lying on his back and the accused was crouched down with both knees on his chest, preventing him from getting up. He described the accused as thrusting into Mr Liston with his left hand in a motion that looked like he was stabbing or punching him, although at that stage Mr Semaan did not see a knife. He did, however, observe that at that time Mr Liston's shirt was covered in blood. Mr Semaan stopped his car, got out and yelled:
"Get off him. Get off him".
At that stage he became aware of Mr Pal nearby yelling similar things. He said it was at that point that the accused got off Mr Liston and started walking towards the footpath. At that point, for the first time, Mr Semaan noticed that the accused was holding a knife which he described as being black with a metal blade about 15 centimetres in length.
There were a number of other bystanders who also gave evidence of their observations. One of them, Golfo Deftereos, had been driving along nearby Carillon Avenue at the time with her boyfriend. As they approached Salisbury Road, Ms Deftereos saw Mr Liston sitting on the ground. She heard him screaming:
"He stabbed me. He stabbed me. Help. Someone help me".
Mr Liston had blood on his left forearm. The accused was standing behind the bus stop for about 40 seconds before walking back towards Mr Liston again. Ms Deftereos described the accused's face as "blank" and she said that she did not hear him say anything.
As the accused approached Mr Liston, Ms Deftereos heard him yell:
"Help, he's coming back".
She said she saw Mr Liston trying to get up and move away from the accused but he kept falling. She said that when the accused reached Mr Liston he bent over and stabbed him 10 to 12 times in the torso with a swinging motion from the side. As he did so Mr Liston was again screaming for help. She said the knife appeared to her to be about 8 or 10 centimetres in length, with a black handle and a metal blade.
It is not necessary for me to detail the observations of a number of other bystanders who witnessed the incident. I should simply note that those bystanders variously described the accused as "expressionless" and a person whose "eyes (were) really wide".
Constables Merchant and Shepherd were driving along Carillon Avenue shortly before 9:00pm. In the course of doing so, they came across the scene of what had occurred. This was shortly before the incident was broadcast over the police radio. They saw Mr Liston lying on the street surrounded by a number of people, covered in blood. Constable Merchant's observations of Mr Liston's chest moving up and down appeared to be consistent with him breathing. Constable Shepherd commenced providing first aid to Mr Liston by, amongst other things, applying pressure to the wound on his chest. At this time Mr Liston's eyes were open but he was not responsive to voice commands.
The witnesses who had observed the incident directed the attention of the two officers to the accused who was nearby. The officers were informed that the accused had been in possession of a knife. They saw the accused surrounded by a number of people and approached him, Constable Shepherd with her taser drawn and Constable Merchant with his firearm drawn. The officers yelled at the accused on two occasions to get to the ground. On the first occasion, he looked in their direction but did not respond and did not move. On the second occasion he initially failed to respond but then moved on to his knees and then on to his stomach.
The accused was placed under arrest and taken to the police car. When police tried to put the accused into the rear of the police car he initially refused. They had to use a significant amount of force to push the accused into the rear of the car. A short time later another police officer reported to Constable Merchant that he had located a knife nearby.
A paramedic team led by Liane Croft of the New South Wales Ambulance Service then arrived. Upon arrival, Ms Croft saw Dr Laura Hutchinson, an off duty Emergency Department specialist who had been driving past, checking Mr Liston's airway, with another person assisting by holding Mr Liston's body in position. She observed that Mr Liston appeared to have a number of wounds and that he was unconscious. Ms Croft and her team set about administering emergency treatment on the roadside to Mr Liston, including the insertion of a laryngeal mask in order to facilitate a patent airway. Defibrillation and cardiopulmonary resuscitation was commenced before Mr Liston was transferred to the Royal Prince Alfred Hospital. Upon arrival at the hospital, he was in cardiac arrest. Emergency treatment was administered to him but he died shortly before 10:00pm that evening.
THE POST MORTEM EXAMINATION
On the morning of 11 December 2015 an autopsy was conducted by Dr Istvan Szentmariay, a forensic pathologist, who subsequently provided a report to the coroner. That report forms part of the evidence before me.
Commencing at page 6, Dr Szentmariay set out the injuries sustained by Mr Liston in the course of the attack. Those injuries were lengthy, but significantly Dr Szentmariay reported that there was a stab wound entry present over Mr Liston's left upper chest, which was centred 12 centimetres left of the midline, 3 centimetres above the left of the nipple and 143.5 centimetres above the sole. The wound measured 1.5 centimetres in length and was orientated between the 4 and 10 o'clock directions. The blunt (or squared) end was at the 10 o'clock direction and the sharp (or pointed) end was at the 4 o'clock direction. There was a mild upward tailing towards the 4 o'clock direction of 0.4 centimetres in length. Dr Szentmariay reported that the wound subsequently went through the underlying rib/intercostal space, and through the upper layer of the left lung and the lateral aspect of the pericardium sac, before subsequently entering through the anterior lateral aspect of the left ventricle, terminating the lumen.
Dr Szentmariay described the direction of the wound path as being left to right, slightly downwards, and front to back. There were 150 millilitres of blood present in the left pleural cavity, and 50 millilitres of blood in the right. The estimated depth of the wound was 12-15 centimetres. The pericardium was widely open anteriorly and there was blood noted in both sides of the chest. It was in these circumstances that Dr Szentmariay concluded that the direct cause of Mr Liston's death was a stab wound to the heart.
In those circumstances it is unnecessary for me to detail the other injuries and wounds which Dr Szentmariay found. It is sufficient, for present purposes, to note that the wounds to which Dr Szentmariay referred in his report are wholly consistent with the incident which I have previously described.
THE ACCUSED'S INTERVIEW WITH POLICE
After being taken into custody at the scene the accused was transferred to Newtown Police Station where he subsequently participated in an electronic interview with the police. The recording of that interview, as well as a transcript, forms part of the evidence before me. The recording was played in the hearing.
I do not propose to recount the entirety of what the accused said when he was interviewed. However, because of the significance which was placed upon that evidence by Dr Furst (to whose opinions I will come) it is necessary for me to make reference to some of the answers given by the accused to questions asked of him in that interview.
Commencing at Q. 33, police canvassed the subject of whether or not the accused was suffering from any mental illness. He told them that he was suffering from "psychosis". When asked at Q. 35 when he last took his medication, he responded by saying:
"Not last night, the night before".
The questions then turned to the circumstances in which the accused had attacked Mr Liston (commencing at Q. 55):
Q55. What's your understanding of the situation?
A. That I'm going to gaol for a while. That's my thoughts.
Q56. What do you think you're going to gaol for?
A. Stabbing someone.
Q57. Do you want to talk about that?
A. No.
Q58. Do you know who you stabbed?
A. Pardon?
Q59. Do you know who you stabbed?
A. Um, I think it was someone of John Bochman's family.
When asked (commencing at Q. 60) about "John Bochman" the accused told police (commencing at Q. 61) that Mr Bochman was someone he had lived with. When asked (at Q. 64) what had happened with Mr Bochman that made him (ie the accused) want to stab one of his family members, the accused responded by saying:
"I don't know, I thought it looked like a good-looking woman, and then looked a bit better, and I came out, and I, like, I saw an old man, so I started stabbing him. Smoking, I don't know why he would smoke".
When asked (commencing at Q. 69) how it made him feel when he saw a person smoking at the bus stop, the accused responded:
A. Like, I came with a knife in my pocket but didn't know it, but then he stabbed me a bit with my knife, so I went crazy.
Q70. And why did you come with a knife in your pocket?
A. Didn't know it was there.
Q71. Did you say you thought it was a woman?
A. Yeah. Looked out my window and, yeah.
Q72. And what made you think it was a woman?
A. Cause she, saw a good-looking lady, that's what I thought. And then half an hour later I had another look, and I, there's someone else there, but she wasn't there anymore.
Q73. Yeah. So it was two different people then?
A. Yeah. No, the, it was only one each time.
Q74. So when you saw the good-looking woman, how did that make you feel?
A. Ah, it made me feel all right, but then I looked another time and, um, just went haywire.
Later in the interview (commencing at Q. 146) the accused was asked about what happened after he had walked up to Mr Liston. The accused responded by saying:
A. Ah, I was about to yell, but he, I think he pulled out my knife a bit and got me on my wrist.
Q147. And how did he do that?
A. Don't know.
Q148. Did you say, did you say anything to him?
A. No.
Q149. Did, did he say anything to you?
A. Ah, I stabbed him a bit with the knife and he yelled something like "piss off" or something.
Q150. So you said that you walked up to him and he took the knife out of your pocket and stabbed you first. Is that what happened?
A. Yeah.
Q151. Why would he do that?
A. Don't know.
Q152. When you approached him, did you recognise him at all?
A. Pardon?
Q153. Did you recognise him when you, when you walked up to him and got closer?
A. Yeah, he looked a bit similar to John Bochman.
Later, when describing parts of the incident, the accused was asked the following (at Q. 179):
Q179. Do you remember if he said anything?
A. Ah, something crystal meth, found a trap, got evil there, didn't even know him or something. And I think it was something to you people.
When asked (at Q. 201) why he kept attacking Mr Liston, the accused responded:
"Um, just felt like it, if that's what you think I did".
Finally (at Q. 219 and following) the accused was asked:
Q219. Why did you stab him?
A. Ah, Billy B just started making some bets back then.
Q220. Pardon? Billy?
A. Billy made some bets.
Q221. Okay, who's billy?
A. Billy Black(beard).
It will be apparent that the accused's answers are indicative of a considerable degree of what can only be described as disordered thought.
THE ACCUSED'S CUSTODY
Following the interview with police the accused was detained at Newtown Police Station pending an appearance before the Magistrate at the Newtown Local Court on the following day. The Custody Management Record prepared by the police noted that the accused appeared to be "disorientated and confused". Whilst in the dock at the station the accused was seen to pace up and down. A check of the police computer system indicated that he had a history of mental illness, possibly schizophrenia, and that he had previously been an inpatient at the Concord Mental Health Centre.
The accused told police that he was taking Clozapine for psychosis. He said the last time he had taken medication was on the previous evening. When asked about his medication, the accused told the police that he "takes meds but doesn't like them". When asked about the type of psychosis from which he suffered and how it affected his mental state, the accused told the police:
"I just can't think every now and then".
A subsequent analysis of a blood sample taken from the accused confirmed the presence in his bloodstream of drugs used to treat schizophrenia.
Other observations recorded in the Custody Management Record noted that whilst he remained in the dock in the police station the accused was seen to stand and walk around. Detective Constable Bale, who had been recalled to duty following the attack on Mr Liston, said that in the course of his observations of the accused that evening the accused was pacing around the dock and appeared dishevelled. Det. Bale said that as the accused paced back and forth in the dock he would sometimes stop and look up with his head tilted, staring toward the ceiling as if he was looking at something that was not there.
THE ACCUSED'S APPEARANCE BEFORE THE MAGISTRATE
At about 12.30pm on 11 December 2015 the police were asked to bring the accused into the Newtown Local Court to appear before the Magistrate. The accused was taken into the court room and was placed on a wooden seat, which was to the left of the Magistrate's bench. After being placed in that seat, the accused suddenly stood up and tried to leap over a barrier that was located directly in front of him. One of the police officers present, Constable Stacey, instantly grabbed the accused's right arm and tried to push him back into the seat. The accused began to resist, using his body weight to try and push Constable Stacey away. The Police Prosecutor, who was apparently present in court at that time, assisted Constable Stacey in attempting to restrain the accused. The accused continued to resist, resulting in Constable Stacey having to strike him to gain control over him. Constable Stacey described the accused as overpowering. He managed to pull the accused to the ground where he applied handcuffs to the front. He was unable to handcuff the accused to the rear because he kept pulling his arms away. The accused was then taken into another room where there was a cell. As a consequence of that incident, Constable Stacey suffered some minor injuries. The incident was captured on CCTV from cameras located within the Newtown Local Court. I have viewed that footage and what is depicted on it is consistent with the description provided by Constable Stacey.
THE SEARCH OF THE ACCUSED'S PREMISES
As part of their investigation police executed a warrant on the accused's premises. Whilst I do not propose to detail the entirety of what was found in the course of that search, there are two items of some significance.
The first item was a spiral notebook in which there were a number of pages of handwriting. The first page, which is the only page to which I need to refer for present purposes, was headed with the words "Serial Killer" and contained the following:
"1 oysters you cannot eat;
2 there are people you shouldn't come across;
3 books you shouldn't read serial killer ones;
4 Chinese food you cannot eat;
5 there are popcorn shrimp in meals you cannot eat;
6 people you wouldn't mind sticking up for;
7 hash browns;
8 ways you can keep your thoughts hidden;
9 coke drinks you shouldn't drink;
10 different skills up your sleeve."
The second item was a novel by Colin Wilson entitled "A Plague of Murder". The front appeared to have an adhesive label attached to it of a kind generally issued by pharmacists when dispensing medication. That label contained the name of the accused.
THE MEDICAL EVIDENCE
Professor Greenberg, psychiatrist, provided a report to the Director of Public Prosecutions on 1 March 2016. The focus of that report was whether or not the accused was fit to stand trial. Professor Greenberg concluded that in light of the chronicity of his mental illness, it was unlikely (but not impossible) that the accused would become fit to plead and fit to stand trial in the next 12 months.
On 16 November 2016 Dr Martin, a forensic psychiatrist, provided a report to the Director. On that occasion he expressed the view (at page 7) that the accused had schizophrenia. He described schizophrenia as a serious mental illness, characterised by experiencing psychotic symptoms such as being out of touch with reality and experiencing hallucinations and delusions, disorder of thought, and disorganised behaviour. Dr Martin concluded that, although the accused presented as a person with some understanding of the charges against him, of what it meant to plead, and of the general purpose of court proceedings, he had a limited capacity to understand and communicate as a direct consequence of a mental illness which Dr Martin described as "treatment-resistant". He concluded that on balance, it was likely that the accused was unfit to stand trial because of his impaired ability to follow proceedings, and his limited capacity to communicate with his lawyer and with the court.
Dr Martin provided another report to the Director on 17 July 2017. The purpose of that report was to provide an opinion as to whether the accused may have available to him a defence of mental illness. Having reviewed lengthy background material, Dr Martin concluded (at page 2) that there was clear evidence of the accused having a serious mental illness in the weeks, months and years leading up to the offending. He said that there was consistent information establishing that the accused had a psychotic illness, with previous experience of psychotic symptoms, and disorganised and risky behaviour which had required involuntary hospitalisation and coercive treatment due to poor insight and a history of non-compliance with medication.
Dr Martin thought that the fact that the accused had been prescribed Clozapine, which he said was reserved for serious and treatment-resistant psychotic illness, was strongly supportive of what he considered to be the severity of the accused's illness. He concluded that if it were the case that the accused were found by a court to have (as he put it) "physically committed the offending", such offending was, from a clinical perspective, probably a result of a disordered mind such that the defence of mental illness could be argued.
On 14 September 2017, Dr Martin provided a further report to the Director. That report included (insofar as he was able to obtain it) the accused's account of the events which led to Mr Liston's death. Dr Martin noted that the accused was "extremely reluctant" to talk about what had happened, but that on being encouraged to do so, he had said:
"I suppose I was mentally ill because I was taking my medication".
Dr Martin confirmed that the accused's primary diagnosis was that of chronic schizophrenia. He described schizophrenia as a chronic vulnerability to experiences of psychosis which takes on a relapsing and remitting course. He commented that schizophrenia is a mental illness frequently associated with emotional disconnection, lack of emotional reciprocity and communication difficulties of a kind described in autistic spectrum disorders.
Dr Martin expressed the view that the accused would satisfy what he understood to be the legal criteria for having "a disease of the mind". He said that it was very obvious that the accused had a major mental illness, namely chronic schizophrenia. He thought it highly likely that the accused would be seen as having a defect of reason as a direct consequence of that condition.
Whilst he acknowledged that it was difficult to access the accused's exact thinking processes around the time of the offending, Dr Martin was of the view that the accused's responses to questions put by him on examination were suggestive of a disorder of thought form, paranoia, and delusional misidentification, all of which were psychotic symptoms. He said that whilst it was difficult to know for certain the accused's thinking processes around the time of the offending, it was his opinion that it was extremely likely that the accused's capacity to appreciate the moral wrongfulness of his actions would have been significantly compromised. He concluded by stating that in his opinion, the accused's ability to behave rationally was significantly and detrimentally affected because of psychotic symptoms which were a part of his chronic schizophrenia, and that this was directly linked to the violence which resulted in Mr Liston's death. He concluded that the accused had available to him the defence of mental illness.
Dr Furst also provided a number of reports to those acting on behalf of the accused. Those reports, as I have noted, form part of Exhibit 1.
In the first of his reports of 21 March 2016, Dr Furst (who had had some prior connection with the accused) diagnosed that the accused was suffering from schizophrenia which was chronic and treatment-resistant, along with an autistic spectrum disorder. There appears to be a slight difference in the medical opinion as to whether or not the autistic spectrum disorder diagnosed by Dr Furst should be regarded as part of the schizophrenic condition suffered by the accused on the one hand, or as a differential diagnosis on the other. Dr Furst preferred the latter approach, Dr Martin the former. However it is clear that whatever approach is adopted, it makes no difference to the ultimate opinions expressed by either medical specialist.
At the time of providing his report of 21 March 2016 Dr Furst expressed the view that the accused was not fit to be tried, and that in light of the chronicity of his schizophrenic illness and lack of improvement in the period of time leading up to that report, he was unlikely to become fit to be tried within the ensuing 12 months.
Dr Furst's second report to the accused's solicitor was dated 3 November 2016. He confirmed his earlier diagnoses, and added a further diagnosis of a likely borderline intellectual function. He again expressed the view that the accused was not fit to be tried, and he thought it extremely unlikely that he would become fit to be tried in the ensuing 12 months.
On 23 August 2017 Dr Furst provided his third report. In terms of the history of the offending, he recorded that the accused informed him that he had thought that the deceased had been "stalking him". He told Dr Furst:
"I'm not sure if my mind was playing tricks. I never personally knew him. I only found out his name after my arrest".
When asked by Dr Furst why it was that he had approached Mr Liston, the accused replied:
"I don't know. I just got a bit stupid that day. He was just down the street".
Dr Furst made specific reference to the accused's interview with the police, and to some of the questions and answers to which I have referred. He also made reference to the items recovered in the search of the accused's premises. He said that although the extensive writings in the notebook were suggestive of an interest in serial killers and/or fantasies or thoughts regarding killing, the contents were noticeably thought-disordered and illogical.
Dr Furst had available to him a plethora of historical medical records pertaining to the accused, including those from Justice Health which form part of Exhibit 1. He concluded that the accused was suffering from a chronic and treatment-resistant schizophrenic illness which was severe in nature. He said that the accused remained chronically psychotic and impoverished in his thinking and that there were marked negative symptoms, poor communication skills, and self-neglect, despite being treated with Clozapine over a number of years. He also expressed the view that schizophrenia has been recognised as a disease of the mind.
In Dr Furst's opinion, the accused was suffering from a defect of reason in the form of delusional thinking at the time of his offending, such that he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. It was on this basis that he concluded that the accused had a defence of mental illness available to him. Dr Furst expressed the view that because the accused was suffering from a disease of the mind in the form of treatment-resistant schizophrenia, he was probably unaware of the wrongfulness of his actions at the time.
Both Dr Martin and Dr Furst gave oral evidence in the hearing before me. Dr Furst confirmed (at T13.9) that he had been involved in cases relating to the accused for a number of years. He also confirmed (at T13.32) that the accused's mental health records dated back to 2006 and recorded the onset of psychotic symptoms at that time which were subsequently diagnosed as schizophrenia. Dr Furst confirmed (commencing at T14.34) the nature of a schizophrenic illness and its severity. He also confirmed (commencing at T14.41) that a schizophrenic illness is often characterised by a combination of different factors, including delusional beliefs, auditory hallucinations, disorder of thought, disorder of thought form, difficulties in processing information, and prominent mood symptoms.
Importantly (at T15.12) Dr Furst said:
"…I should clarify in the case of Mr Cahill that, he has a more severe illness compared to most people with schizophrenia, so he's on the severe end of the spectrum, and his illness has also been treatment resistant which means failing to respond to two different classes of antipsychotic medication in a reasonable timeframe, and hence the reason for treatment with the Clozapine medication, That's C-l-o-z-a-p-i-n-e. So he's, although that general description of schizophrenia is accurate, Mr Cahill is on the more extreme end of the illness."
Doctor Furst also expressed the view (at T15.46) that he suspected that the accused would always suffer from deficits of the kind that he had described, even when taking medication.
Commencing at T16.7, Dr Furst confirmed his opinion that it was more likely than not that at the time of his offending, the accused was driven by delusional and/or paranoid thinking, was suffering from a defective reasoning in the form of delusional thinking, and was thus unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure. He then said (at T16.24):
"…The delusions were most likely paranoid delusions and delusions of misidentification, and it's been very hard to extract information from Mr Cahill coherently, even since the time of his arrest when police interviewed him and when assessed by Justice Health, Doctors, myself and other experts, but the absence of any logical reason, and especially looking at the police transcript and the recent DVD, they would be the most likely delusional ideations."
In terms of the writing in the notebook seized from the accused's premises by the police, Dr Furst's view was that the writing became more disorganised and disjointed as it progressed. However he agreed (at T17.32) that there was evidence of disorganisation in the writing from the outset of the notebook, and that the thought process simply deteriorated as the writing progressed.
Dr Furst also described the accused as being a person who had very poor insight. He said that as well as being on the more extreme end of a severe illness, he has little (if any) true insight into his condition, and the need for treatment.
Dr Furst made reference (commencing at T18.47) to the evidence of Ms Suzuki, and the difficulties faced in assessing what was happening with the accused at a particular time. He said that there was evidence in the material that he had reviewed of attempts being made on a number of occasions to understand the accused's thinking about the events which led to Mr Liston's death. No logical narrative could be obtained, and there had been no breakthrough in the accused's treatment which would give any confidence that he would one day understand his thinking, delusions or hallucinations. He confirmed (commencing at T19.35) that there was a history of "delusional misidentification" which, on occasions in the past, had led to misidentification of one person for another.
Dr Furst made reference, in particular, to that part of the accused's interview with police, in which he made reference to a person who he thought was "John Bochman". He attached considerable significance to that interview in terms of assessing the accused's mental state at the time of the offending, bearing in mind that the interview was conducted within a very short time of the offence being committed. Commencing at T20.3, Dr Furst expressed the view that evidence of that nature tended to be the most reliable evidence in terms of determining a person's mental state a short time before. He confirmed that some of the answers given by the accused in the interview were reflective of disordered thinking. He referred, in particular, to Q. and A. 179, describing the accused's answer on that occasion as:
"…almost a textbook example of thought disorder, where the ideas are disjointed, there's no connection between them, and it shows the state of mind he was in and also shows the state of mind where someone can't really reason about things with a moderate degree of sense and composure
or even rationally, because their brain is disorganised."
Dr Martin also gave evidence. He said (at T21.38) that there was "no doubt" that the accused suffered from schizophrenia. It should be emphasised that although Dr Martin reached the same conclusion as Dr Furst, he pointed out (at T22.19) that his opinion was independently formed, based upon the material with which he was provided and which he reviewed. That material included, importantly, the interview between the police and the accused which Dr Martin described as having been "quite important" in his assessment.
THE DEFENCE OF MENTAL ILLNESS
The opinions of Dr Furst and Dr Martin are expressed independently, and in unequivocal terms. They have been formed after each of them received a considerable amount of material dating back to 2006, documenting the accused's history of mental illness. That historical material is wholly consistent with the opinions that they have expressed. Those opinions squarely raise the defence of mental illness.
The defence of mental illness is governed by the provisions of s. 38 of the Forensic Provisions Act which provides for the return of a special verdict:
38 SPECIAL VERDICT
(1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.
(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.
In the event that a special verdict is returned pursuant to s. 38, then the provisions of s. 39 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 terms of the order.
The onus of establishing the defence of mental illness falls on the accused, on the balance of probabilities: Mizzi v R (1960) 105 CLR 659; [1960] HCA 77; R v Ayoub [1984] 2 NSWLR 511. In order for the defence to be made out, there must be evidence that at the time of committing the relevant act(s), 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 that what he was doing was wrong: see R v M'Naghten (1843) 8 ER 718; R v S [1979] 2 NSWLR 1. Senior Counsel for the accused made it clear that he sought to rely on the second of those two limbs.
The test was stated by Dixon J in R v Porter (1933) 55 CLR 182; [1933] HCA 1 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 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 the 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 terms of count 1 in the indictment, I am satisfied that the deliberate act of stabbing Mr Liston was committed by the accused, and that it caused Mr Liston's death. So much is clear, not only from the statements of the eyewitnesses, and the paramedics who treated Mr Liston at the scene, but also from the evidence of the treatment administered to him at the hospital and the report of the forensic pathologist. In terms of counts 2 and 3, I am satisfied that the accused was armed with a knife, which was subsequently recovered from the scene, and which he used to "lash out" at Mr Pal and Mr Semaan. It is clear from the evidence to which I have referred that the accused was so armed.
Having reached that position, I must determine whether the accused is criminally responsible for his acts in each case, or in other words, whether he has established on the balance of probabilities that he was mentally ill at the time. If that is established, I must enter verdicts of not guilty by reason of mental illness. If not, it will become necessary for me to consider whether the Crown has established, beyond reasonable doubt, that the acts of the accused in each case were accompanied by the relevant mental state: R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at 498; [32] per Hunt AJA, Spigelman CJ and Howie J agreeing.
I have already referred at some length to the evidence of Dr Martin and Dr Furst. There has been no challenge to their opinions. Indeed, both the Crown and senior counsel for the accused submitted that such opinions ought be accepted. Importantly, there is complete unanimity in those opinions. If evidence of that kind is unanimous, it is not open to reject it in the absence of material which might cast some doubt on it: R v Afele [2014] NSWSC 366 at [68] and the authorities cited therein. There is no medical evidence which casts any doubt upon the opinions of Dr Martin or Dr Furst in this present case. I therefore have no reason to reject those opinions and I accept them.
I should also make three further observations. Firstly, the objective appearance of the accused on the night in question as described by bystanders is consistent with the medical opinions which have been expressed. Secondly, the accused's demeanour in the course of the interview with police, and the answers that he gave to the questions asked of him, do nothing other than support the conclusion that at the time of the offending, he was suffering from significant disordered thought. Thirdly, the evidence concerning the accused's demeanour, firstly at the police station on the evening of his offending, and in court the next morning, provides further support for these conclusions.
I am therefore satisfied that at the time of the offending the accused was suffering from a schizophrenic illness. I am satisfied that, in the terms adopted by Dixon J in Porter, the accused did not know that what he was doing was wrong, having regard to the everyday standards of reasonable people. The schizophrenic illness from which the accused was suffering from at the time of the offending produced the symptomatology to which Dr Furst and Dr Martin referred. That symptomatology included thought disorder, hallucinatory beliefs, difficulty in processing, and delusional beliefs. I am satisfied, based on the opinions of Dr Martin and Dr Furst, that at the time of the offending, the accused was driven by delusional thinking and was, as a consequence, not able to reason about the wrongfulness of his actions on that occasion. In all of these circumstances, I am satisfied that the defence of mental illness has been established on the balance of probabilities.
Having reached that finding, it will be necessary for me to make orders giving it effect. However before I do so, there are some final observations that I wish to make.
I am aware that yesterday and today a number of members of Mr Liston's immediate family, and a number of his close friends, have been in court. Each and every one of you has heard the evidence, and the reasons that I have given this morning leading to the conclusions at which I have arrived. I can barely imagine the torment through which you have been put. I have some appreciation of the fact that such torment has, in more than one sense, been exacerbated by hearing the evidence that you heard yesterday, and the reasons that I have given this morning. The orders that I am about to make will have the effect of closing, as it were, this chapter of what happened on that evening in December of 2015. I do not, in saying that, pretend in any way that the conclusion of these proceedings will provide complete closure for any one of you. However, it is my hope that it will provide some mechanism, however small, to assist you to cope and deal with the grief that each and every one of you is suffering. In all of those circumstances, I extend not only the sympathy of the court, but my own personal sympathy and condolences to you, for what could only be described as an unimaginable loss.
I make the following orders:
1. I find the accused not guilty of each of counts 1, 2 and 3 in the indictment on the grounds of mental illness.
2. I order that the accused be detained pursuant to s. 39 of the Mental Health (Forensic Provisions) Act 1990 in an appropriate correctional centre or in such facility as the Mental Health Review Tribunal may determine until he is released by due process of law.
3. I direct the Registrar to notify the Minister for Health and the Mental Health Review Tribunal of these orders.
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Decision last updated: 20 October 2017