R v Eyuboglu

Two defences to murder

1. Those undisputed matters form the evidential context that was established before me, after the accused was arraigned on an indictment containing a single count of murder on 4 March 2019. No jury panel was present, because I had previously ordered, in light of the unanimity of the parties, that the trial proceed by judge alone: see R v Eyuboglu [2019] NSWSC 181.
2. A simple plea of not guilty to murder was entered to that indictment. From a very early stage of the trial, however, defence counsel helpfully explained that the elements of the offence of murder were not in dispute, and that I could readily be satisfied of them beyond reasonable doubt. Rather, my verdict would depend on my answers to two questions, as follows.
3. The first is: has the accused established, on the balance of probabilities, that he is entitled to the special verdict of not guilty on the ground of mental illness, with the result that he will be detained indefinitely in a mental hospital unless and until he presents no significant danger to himself or others (ss 38 and 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW))?
4. That question may be rephrased in terms of its legal components as: has it been proven on balance that, at the time of the fatal stabbing, the accused was labouring under such a defect of reason, arising from a disease of his mind, that he either did not know the nature and quality of what he was doing; or, if he did know those things, that he did not know that what he was doing was wrong (M'Naghten's Case, Re [1843-60] All ER 22; (1843) 8 ER 718 at 722, as elucidated in many subsequent Australian cases)?
5. The accused submitted that that proposition had been established. In doing so, defence counsel made it clear that, with regard to the latter part of the defence, it was not lack of appreciation of the nature and quality of the fatal act that was relied upon, but rather lack of appreciation of its wrongfulness.
6. The Crown resisted the proposition that the defence had been established. To expand on that resistance a little, the final position of the Crown was an acceptance that, at the relevant time, the accused was indeed suffering from a disease of the mind in the form of schizophrenia. But the Crown did not accept that the accused suffered a defect of reason as a result. And the Crown position was that any such defect of reason, even if established, did not lead to the accused failing to appreciate either that he was repeatedly wounding the deceased with a sharp knife, or, in particular, failing to appreciate the moral wrongfulness of those acts.
7. The second question that I am to ask myself arises only if I answer the first question in the negative. It is: whether the accused has established the partial defence of substantial impairment, with the result that I would return a verdict of not guilty of murder but guilty of manslaughter (s 23A of the Crimes Act 1900 (NSW))?
8. The second question may be rephrased in terms of its many legal components as: has it been established on balance, first, that, at the time of the stabbing, an abnormality of mind arising from an underlying condition (that is, a pre-existing mental or psychological condition that was not of a transitory kind), impaired the capacity of the accused to understand events, or to judge whether his actions were right or wrong, or to control himself; secondly, that any such impairment was substantial; and thirdly, that any such impairment was so substantial as to warrant liability for murder being reduced to manslaughter?
9. Again, the ancillary position of the accused was that that partial defence has been established. Again, the Crown resisted the proposition.
10. To expand upon that second line of resistance, the Crown ultimately accepted that the accused suffered from a pre-existing mental condition that was not transitory, in the form of schizophrenia. It also accepted that arising from that condition was an abnormality of mind. And the Crown also accepted that that abnormality of mind impaired at least one of the three attributes of the accused set out above.
11. On the other hand, the Crown did not accept that that impairment was substantial. Furthermore, the Crown proposition was that, even if any such impairment was substantial, it was not so substantial as to warrant reduction of liability from murder to manslaughter.
12. Because of the helpful refinement of the undisputed and disputed elements of the two defences that had taken place by the time I retired to consider my verdict on 14 March 2019, much of the evidence in the trial need not now be canvassed by me in any detail, and my review of legal principles and my statements of findings of fact can be concise: s 133 of the Criminal Procedure Act 1986 (NSW).

Thumbnail sketch of evidence

1. Turning then to that evidence: the accused and the deceased had lived in apartment blocks in the south eastern Sydney suburb of Chifley for some time before August 2017.
2. The accused had in fact grown up there, and retained connections in the neighbourhood with family and friends. His developing mental illness had caused him to become estranged from his mother and others, and largely without a place to live. The diaries, which commence in about September 2016 and conclude in early August 2017, show that he was leading an isolated, hopeless, aimless, indeed tormented life. As at the time in question, the accused was not working, and as I have said, sadly a substantial proportion of his time was taken up with obtaining and using alcohol and prohibited drugs.
3. The deceased was sharing his apartment with a friend, Mr Alan Calleja, who is himself now deceased. The recorded interview with police of Mr Calleja was tendered in the prosecution case, with the result that I approach his hearsay evidence with a degree of caution, in general accordance with a warning pursuant to s 165 of the Evidence Act 1995 (NSW). Clearly enough, on his own admission Mr Calleja was utterly dependent on alcohol. I infer from their friendship; his lifestyle; and his blood alcohol reading on death that the deceased had a serious problem with that substance as well.
4. About a week or so before the fatal acts, the accused moved into that apartment with those two men, and it seems he was sleeping on a mattress there.
5. On the morning of Tuesday 29 August 2017, there was a fire in an apartment below the apartment of the deceased; there is nothing to suggest that the accused or anyone else involved in the trial was responsible. In order to escape the fumes, the three men left early in the morning; as I have said, they spent quite some hours in a hotel in Taylor Square, and at another bar in the south-eastern suburbs closer to the apartment blocks.
6. There is nothing to suggest that the accused and the deceased were not getting on reasonably well on that Tuesday. Having said that, an associate of the deceased, Mr Lee Barber, who also surely suffered from a dependence on alcohol, was in the company of the accused and the deceased during a drinking session on the Sunday evening, a few days before. He left the social event because of the aggression he observed on the part of the accused towards the deceased on that occasion.

The stabbing of the deceased

1. As I have said, it was never disputed in the trial that the accused stabbed the deceased repeatedly, thereby causing his death. There was a dispute between the parties as to how that happened. In particular, it has repeatedly been asserted by the accused - to civilian witnesses, and to the two psychiatrists qualified by the parties, and who gave illuminative evidence before me - that his fatal acts were a response to the deceased having made a verbal and physical sexual advance towards him. The Crown rejects the accuracy of that assertion.
2. I shall turn to resolve completely that dispute as best I can later in this judgment, but connected to it is the question of what one can infer about the physical positions of the two men before the fatal attack commenced.
3. Contrary to the submission of defence counsel, and although I have borne in mind the need for caution in drawing inferences as the tribunal of fact, I think that the interactive video of the crime scene and its attendant diagram (the ISRAP); the video from the body camera of one of the first police officers on the scene; and the crime scene photographs firmly establish the following.
4. The deceased was sitting on a chair at the kitchen table, eating a meal of chicken, with his back to the sink. The accused had already eaten, and his plate was in the sink, with some food scraps still on it. The accused was not sitting at the table on a chair opposite or near the deceased, as evidenced by the location of the other two chairs when the deceased was found, and the items that were still in place on both of those chairs. A condom and two packets of lubricant had been sitting on the kitchen table, and ended up on the floor, it seems under the body of the deceased.
5. Something passed between the two men that led the accused to produce a knife. He repeatedly stabbed the deceased to the rear right side of his neck and of his right shoulder, having first approached him from behind. The deceased turned and sought to defend himself with his left hand, and suffered defensive wounds as a result. The infliction of wounds continued on the front side of his shoulder and neck. Eventually the deceased fell heavily from his chair, which became upturned, and died very close to where his body was later found, between the fridge and the kitchen table.
6. Because of that analysis of mine of objective evidence, I reject any proposition that anything important passed between the two men in the nearby lounge room of the apartment immediately before the fatal stabbing, for the simple reason that one can readily infer that the deceased was partway through a meal at the kitchen table when he was stabbed.
7. Secondly, I also reject the proposition that the deceased placed his hand on the knee or groin of the accused immediately before he was stabbed, simply because I consider it established that the deceased was sitting at a table eating, and the accused was not sitting there with him.
8. Thirdly, I also reject the proposition that there was any fist fight between the two men, not least because of the significant disparity in height and weight between them; the absence of observed injuries to either man supportive of that proposition; the absence of crime scene evidence in support of it; and the fact that such an event has not been consistently recounted by the accused.
9. Fourthly, bearing in mind that the version of events given by the accused was hearsay, and therefore not on oath, not the subject of cross-examination, and not able to be assessed by me with regard to demeanour when given, I have approached it also with a measure of caution.
10. Fifthly, a part of my generally adverse approach to some of what the accused has had to say about the stabbing is informed by two indisputable facts: first, as a result of his illness, at the time (and even recently) he has experienced great difficulty in discerning reality from delusion, and, secondly, he has told many lies about what happened on that evening.
11. Sixthly and finally, I take this opportunity to indicate that neither in this context, nor any other, have I used the failure of the accused to give evidence in the trial against him in the slightest. In particular, I have drawn no inference adverse to the accused from his failure to give evidence. And I say that even though, with regard to the two defences relied upon, the accused bears the onus of proof to the lesser standard. To be clear: I have merely come to my verdict on an analysis of the evidence that has been placed before me.

Special verdict?

1. Turning now to discuss the special verdict first, I respectfully believe that I can be concise in my analysis. In particular, I do not believe that I need to engage in the difficult task of "disentangling" the effects upon the mind of the accused at the time of the stabbing of, on the one hand, his illness, and, on the other hand, the alcohol and prohibited drugs that he was abusing. I say that not because, with respect, I accept the submission of defence counsel that, in a case of exacerbation by substances of an undoubtedly pre-existing mental illness, one need not do so. (To the contrary, I respectfully believe that the recent decision of Fang v R [2018] NSWCCA 210, combined with the whole history of the defence of mental illness, and the policy reasons underpinning it, means that a tribunal of fact must do so.) Rather, I say it because I am firmly of the opinion that one of the elements of the defence of mental illness has not been established on the balance of probabilities, as follows.
2. Whatever else may be established of the necessary elements of this defence, I am not satisfied that it has been established that, at the time of the stabbing, the accused did not appreciate the wrongfulness of what he was doing. I say that for the following reasons.
3. First, the evidence establishes that, in the days leading up to the stabbing, the accused had an appreciation of right and wrong, despite his chronic illness.
4. For example: he knew that it was right to pay for items that one wishes to obtain from a shop, rather than stealing them; he knew that it was right to queue up patiently in order to do so, rather than simply barging in at the counter; he knew that it was right to "tap on" and "tap off" with one's Opal Card when using public transport, rather than dishonestly riding for free; he regarded it as right to help an elderly lady to lift her heavy bag onto a bus, rather than leaving her to fend for herself; and he appreciated that Mr Calleja had been arrested on the Tuesday afternoon for the wrongful act of kicking something out of the hand of a homeless person.
5. Separately, when he saw his parole officer on 23 May 2017 (that is, 6 days before the stabbing) he appreciated that being "good" included not breaching his good behaviour bond or apprehended violence order. (I interpolate at this stage that, neither in this context nor in any other, have I used evidence of other discreditable behaviour of the accused against him, whether as tendency evidence, bad character evidence, or anything else. In accordance with the approach of the parties, I have simply used it as evidence of context or surrounding circumstances in which the two defences are to be determined.)
6. Those (perhaps individually small) matters in the lead up to the fatal act show that the mind of the accused, whilst certainly suffering from a mental illness, could assess the rights and wrongs of everyday life, including with regard to things that he himself did or did not do.
7. Secondly, very soon after the stabbing, the accused absented himself from the scene. He walked to the home of an older female friend who had been something of a mother to him over the years. He immediately confessed what he had done. And he said that he had "really done it this time", thereby showing an appreciation not only that he had done something wrong, but also of its comparative gravity. Furthermore, he told that lady that he had repeatedly stabbed the deceased, thereby evidencing a sound sensory and intellectual engagement with, and memory of, his own acts.
8. Thirdly, on the same evening he chose not to sleep in the apartment where the body of the deceased remained, but, unusually at least at that time, slept at the home of his older friend.
9. Thirdly, at some time soon after the stabbing, he disposed of the fatal weapon, in such a way that it could never be located by authorities.
10. Fourthly, he promptly changed out of, and disposed of, shorts he was wearing at the time of the stabbing, no doubt because they were bloodstained. They have never been found either.
11. Fifthly, shortly after 10:45 on the following morning, Wednesday 30 August 2017, the accused lied to his parole officer about where he had been living, thereby literally distancing himself from the apartment of the deceased.
12. Sixthly, he has told countless lies of omission and commission to the police about the events of that evening, including in a recorded interview two days later.
13. Seventhly, on the occasion of his second interview with police on 31 October 2017, the accused unwittingly spoke to an undercover operative in terms that showed that he well appreciated at that time that he had done something seriously wrong, and that it remained in his interests to hide it from the police.
14. Eighthly, it is true that the ferocity of the attack, at the end of a day during which there is no evidence of trouble between the two men, may suggest an enraged, perhaps out of control, response to something said or done by the deceased (a topic to which I shall return shortly). But in my respectful opinion, defence counsel was correct to submit in his final address that I should put from my mind any question of "rage, offendedness, homophobia" that was motivating the accused at that time. That is because, as my recitation of the elements of the defence shows, the focus of the defence of mental illness must be upon the defect of reason being of sufficient significance to have the effect that the accused failed to appreciate the wrongfulness of what he was doing, not any other symptom of a disease of the mind. And I do not accept that any such defect was operating on the mind of the accused, at the time of the stabbing, that led to him to fail to have that appreciation.
15. Ninthly, I accept that schizophrenia can be expected to affect one's cognition, and one's ability to reason through complex problems. But there is nothing complex about the wrongfulness of brutally stabbing another human being to death.
16. Tenthly and finally, the distinguished forensic psychiatrist called in the defence case accepted that, very soon after the stabbing, the accused appreciated its wrongfulness. And whilst I appreciate the point that his state of mind shortly beforehand, at the time of the stabbing itself, may have been different, I maintain the opinion that underpinning the fatal acts was a violent disinhibited outburst, not a defect of reason.
17. In short, I am not satisfied on the balance of probabilities that the accused did not appreciate the wrongfulness of what he was doing at the time he did it. If anything, I tend to the view that, on all the evidence, it has been established to that standard that he did indeed possess that appreciation.
18. For that reason, I consider that it is not necessary for me to analyse in any depth the other elements of the defence of mental illness. In my view, because an essential element of that defence has not been established, the special verdict cannot be returned in this case.

Substantial impairment?

1. I turn now to the partial defence of substantial impairment that, if established, reduces liability from murder to the lesser form of homicide, manslaughter.
2. It is convenient to set out first those elements of the partial defence that have, in my opinion, been established on the balance of probabilities.
3. First, the accused did indeed suffer from an abnormality of mind.
4. Secondly, it arose from an underlying condition, namely the pre-existing mental condition of schizophrenia, which, far from being a transitory illness, is chronic and incurable.
5. Thirdly, I consider that that abnormality of mind impaired (without destroying entirely) each of: the capacity of the accused to understand events; and to judge whether his actions were right or wrong; and to control himself. I say that because two distinguished forensic psychiatrists were on my analysis, unanimously of that view. In particular, it is important that the psychiatrist qualified by the Crown, who was cautious about the establishment of other elements of the defence, did not resist in cross-examination the general proposition that all of those impairments can be understood as inherent to the disease of schizophrenia.
6. The more difficult determinations are: first, whether any such impairment was substantial; and, if so, whether it was so substantial as to warrant reduction from murder to manslaughter.
7. In answering the first question, the statute mandates that I disregard the effects of any self-induced intoxication upon the accused: s 23A(3) of the Crimes Act 1900 (NSW). I respectfully think there is force in what the psychiatrist qualified for the defence had to say about the great difficulty in that "disentangling" exercise; I simply do my best to do so in accordance with the mandate of Parliament.
8. As for that question then, I think it should be answered in the affirmative: without descending into any detail, I accept that the serious mental illness from which the accused suffered substantially impaired at least one of the three attributes essential to the partial defence. In a nutshell, I say that because each of the psychiatrists emphasised the gravity of the illness; each of them cautioned against simply looking at its grossest symptoms, and thinking that they are the extent of the illness; and each of them, to the contrary, spoke of its pervasive effect on perceiving and thinking and feeling.
9. I answer the first question in the affirmative, and turn now to the final, evaluative question, which, it is well known, calls for an assessment and application of community values.

A precipitating event?

1. Before answering the second question, however, I think that it is first incumbent upon me to resolve, as best I can, the remaining factual dispute between the parties about what, if anything, led to this explosion of violence.
2. As I have said, the defence position was that it was a sexual advance. The Crown position was that it was some sort of trivial annoyance between two men living in straitened, indeed deprived, circumstances who had been drinking all day, and one of whom was affected not only by alcohol but also amphetamines.
3. Before I turn to resolve the question of what occurred between the two men in the moments before the stabbing, I emphasise, as I did during the trial, that this process is not being engaged in because of any adverse view on my part, or indeed on the part of the criminal justice system generally, of gay or lesbian people seeking to have consensual sexual contact with other adults. Rather, it is simply being done as part of an enquiry as to what may have operated on the disturbed mind of the accused, and led him to commit these fatal acts.
4. I have already rejected much of what the accused has had to say about the circumstances of the stabbing. In particular, I have rejected the proposition that there was any sort of physical, let alone violent, approach made by the deceased. Turning now to the question of whether or not the deceased may have made some sort of verbal sexual advance to the accused: first, it is true that the accused has repeatedly said that that occurred.
5. Secondly, it is also noteworthy that before the stabbing, he spoke of there being some sort of sexual harassment towards him occurring at the apartment where he was living with two older men.
6. Thirdly, it is also to be recalled that a condom packet and two packets of lubricant were, I have found, on the kitchen table at the time of the stabbing, and that they ended up on the kitchen floor.
7. Fourthly, it is also the case that the evidence is that the accused and the deceased seemingly got on well together during the day in question; that may suggest that something significant occurred, and that led to a complete change in atmosphere in the apartment, shortly before the fatal acts.
8. On the other hand, it is to be recalled that the undisputed evidence is that the accused had been sufficiently aggressive to the deceased during a separate drinking session two nights before for one of the guests to get up and leave.
9. Secondly, there is force in the proposition that, after a day of drinking and taking drugs, the accused was in a confined apartment in depressing, perhaps aggravating, circumstances. In all the circumstances, I think that the Crown submission has force that it would not have taken anything particularly significant to aggravate the accused.
10. Thirdly, the evidence in the trial was that the deceased had fathered four children over the years with four different women. That does not rule out a same-sex sexual advance, but it perhaps makes it less likely.
11. Fourthly, in similar vein, although quite a few residents of the blocks of flats gave evidence, none of them was cross-examined to the effect that he or she had observed any same sex attraction on the part of the deceased, whether in general or towards particular persons, especially the accused.
12. Fifthly, for the reasons already given, the reliability (because of his illness) and credibility (because of his lies) of what the accused has had to say are both seriously in question.
13. Weighing up all of those countervailing factors as best I can, I proceed on the basis that something was said between the two men that led the accused to commit a brutal act of fatal violence. And I think it possible that what was said had some sort of sexual flavour to it, though perhaps very casual in nature or light-hearted in intention.
14. On all of the evidence, I cannot go further than that in favour of the factual assertions of the accused. And as I have said more than once, I reject the proposition that there was any physical sexual advance, let alone one attended by force or violence.

Reduction in liability to manslaughter?

1. Having resolved that final factual question, I turn to the difficult exercise whereby a judge sitting alone does his or her best to apply community standards to the question of whether the impairment of the accused was so substantial as to warrant a reduction in liability. I record that I have read, and respectfully agree with, what his Honour Hamill J has recently written about the exercise in R v Hutchison & Wilkinson [2018] NSWSC 1759 at [46]. In particular, I find the test "elusive"; how I am to apply it "perplexing"; and have simply done my best to approach my task in a common sense way, applying community standards in Australia in 2019 as I discern them to be.
2. The following factors argue in my opinion in favour of a reduction in liability.
3. First, as I have said more than once, the mental illness of the accused from which he suffered at the time of the stabbing is serious, chronic, and disabling.
4. Secondly, it is a mistake simply to focus upon its symptoms, such as auditory hallucinations and paranoia. Again, I record my acceptance of the unanimous view of the psychiatrists that it must be thought of as a disease that holistically affects one's cognition or thinking, and that also results in "blunting of affect", that is, a difficulty in regulating emotions and a reduced intensity in emotional expression. I accept the proposition that one must not simply "hive off" such things as auditory hallucinations, and take the approach that, apart from that particular manifestation, a person suffering from schizophrenia is otherwise "fine".
5. Thirdly, the diaries eloquently speak of the torment and resultant despair that this untreated mental illness inflicted upon the accused.
6. Fourthly, I think there is force in the submission of defence counsel that the presentation of the accused when he was hospitalised some months before the stabbing, after having accidentally fallen from a balcony, is of little adverse weight on this question. I say that because I think it quite possible that the accused might have been reluctant to expose the extent of his mental illness at that stage, not least because of a fear of being involuntarily detained if he were completely frank about it.
7. Fifthly and finally, although it is incumbent upon me to disregard self-induced intoxication, I do not impose some opprobrium on the accused in self-medicating in that way, and in failing to maintain his prescribed medication; I approach those aspects of this matter as simply functions of his illness.
8. The factors that I consider argue in favour of no reduction in culpability are as follows.
9. First as I have said, it is important, as best I can, to "shear off" the effects of the self-induced intoxication of the accused.
10. In that regard, although he was a seasoned drinker who had surely developed a tolerance to alcohol, nevertheless, his drinking from before dawn that day must have clouded his thinking to some degree. I say that because the blood alcohol reading of the deceased was at an extreme level that would induce stupefaction in an intolerant drinker, and I infer that the blood alcohol of the accused was at a similar level.
11. His use of amphetamines would separately have aroused the accused, and made him more aggressive than he otherwise would have been. As the psychiatrist called by the defence said in evidence, the combination of alcohol with that particularly pernicious prohibited drug was "a very bad combination on an abnormal brain" indeed.
12. Undertaking the exercise mandated by statute is best I can, I think that the accused would surely have been substantially "better", cognitively and emotionally, even despite his undoubted illness, if he had not used alcohol and amphetamines that day.
13. Secondly, although he was certainly experiencing auditory hallucinations, there is no evidence that the accused believed they emanated from the deceased. Nor were the voices commanding the accused to harm that person. In other words, it cannot be said that that most extreme manifestation of his illness directly caused the fatal violence.
14. Thirdly, in similar vein, his persecutory ideas were not "sheeted home" by the accused to the deceased. Again, in that sense it could be said that the illness did not directly "cause" the fatal acts.
15. Fourthly, it could be said that, at least at a superficial level, the accused was able to function on a day-to-day basis in the period leading up to the stabbing: he could travel to and from a hotel by bus and drink there; he could purchase groceries; he could go fishing with a friend; he could cook and eat a meal; he could attend appointments with his parole officer, and there discuss reasonably reflective strategies for his rehabilitation.
16. Fifthly, as I have recounted, very promptly after the fatal acts, the accused was sufficiently cognitively engaged as to appreciate the need to hide what he had done, not only by disposing of more than one piece of evidence of his acts, but also by telling very many lies about them. The first of those lies were told to persons in authority less than 48 hours after the stabbing, by way of the first recorded interview with police; if one regards a parole officer as an authority figure, an important lie was told well before that, less than 12 hours after the deceased had died.
17. Sixthly, one can accept that the accused may have been suffering from an inner turmoil arising from his illness during that interview. Still and all, he was able to answer each question rationally. He was also able to avoid the topics of his contact with the deceased; his residence in that apartment; and his presence there on the Tuesday evening, with a degree of focus and forethought.
18. Seventhly, I have already found that the attack commenced with the deceased being stabbed from behind whilst sitting eating an evening meal. In other words, the deceased was attacked by a younger, larger man when he was basically defenceless. The attack was also unremitting, as shown by the presence of the two defensive wounds to the hand of the deceased.
19. Eighthly, I am satisfied beyond reasonable doubt that the accused possessed an intention to kill; in my opinion, that inference is inevitable from the number, location, and depths of the knife wounds. In my opinion, that finding of mine has a role to play in the assessment of the appropriateness of the reduction in culpability from the greater form of homicide to the lesser.
20. Ninthly and finally, to the extent that I have found that the attack may have been a response to a verbal sexual approach by a person of the same gender as the accused, I think that, even allowing for his mental illness, community standards in 2019 would give little or no weight to that factor in favour of reduction in culpability. Indeed, I think that in modern day Australia any suggestion that the fatal response of the accused was founded on a hatred, or even dislike, for gay and lesbian people would be adverse to him in the application of community standards to the question of homicide.

Resolution of crucial element of partial defence

1. Again, weighing up all of those countervailing factors as best I can, I confess that my mind is evenly balanced as to whether there should be any reduction from murder to manslaughter. I have reflected on the question over a number of days since I reserved in the matter, and have repeatedly returned to that position. But that lack of a clear answer is itself the answer, because the accused bears the onus of satisfying me on the balance of probabilities that the reduction in liability is warranted. Because my state of mind shows that that onus has not been discharged, it follows that the partial defence fails, because the balance of probabilities have not been tipped, ever so slightly, in its favour.
2. In other words, as the Crown prosecutor submitted in his final address, questions of onus in this context can be determinative, and they are in this trial.
3. In short, I have not come to believe that the partial defence has been established on the balance of probabilities.

Verdict

1. Having rejected the defence of mental illness, and the partial defence of substantial impairment, and being separately satisfied of all of the elements of the offence of murder beyond reasonable doubt, it remains for me to deliver my verdict.
2. Gokhan Eyuboglu, on the indictment alleging that on the 29th day of August 2017 at Chifley, you murdered Charles Grace, I return a verdict of: guilty.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2019