R v Ilie Istudor

A strata meeting on 24 April 2014

1. A strata meeting was scheduled for 24 April 2014 at the unit block. That block consists of two buildings; units 1-6 in one, units 8-12 in the other. Prior to the meeting Mr Istudor canvassed neighbours. He was determined to oust Mr Smith and take over as strata manger.
2. The meeting commenced at 6.30pm on the landing or foyer between units 3 and 4. Mr Istudor seated himself behind the small folding table set out for the strata manager. Mr Smith seated himself at another chair near the top of the stairs and began to take names of those attending. Mr Istudor began to berate him, swearing, and banging on and lifting the table. He then pushed past Mr Smith and others and left, going downstairs. Mr Samour, another owner, continued the verbal attack on Smith. Mr Samour told me that Mr Smith was "always polite" but on this occasion voices were raised. Mr Smith stood for a short time but then went to resume his seat.
3. At this moment Mr Istudor returned. He walked up the stairs to the landing. He was carrying a cut down single shot rifle. It was loaded. He had spare bullets in his pocket. He also carried a large kitchen knife. As he got near to the top step he raised an arm and fired a shot. The bullet went in the front of Mr Smith's neck, under the angle of his right jaw and out the back of his head just below the right ear: exhibit B, oral evidence of Dr Mortimer of 22 January 2016, and an expert opinion of Dr Chan an ear nose and throat specialist, exhibit L. The bullet just missed his carotid artery and major muscles. It then hit and shattered a light fitting on the ceiling. Pieces of the bullet then hit the rear wall and fell to the ground: see photographs, exhibit A and evidence of Raphael Jackson of 27 January 2016.
4. Mr Smith heard the noise and saw blood fall onto his papers. He then realised he had been shot. Seeing a hand with a gun he "decided attack was the best form of defence" and threw himself at the shooter. The two men went down the stairs to the landing below. Mr Istudor hit his head. He dropped the rifle. He appears to have lost consciousness.
5. Police and ambulance attended. First aid was administered to Mr Smith. Police found Mr Istudor in the stairwell. He was arrested. As he was being escorted from the building he kicked out at Mr Smith: shown in Pol-Air footage, Exhibit P.
6. Both men were hospitalised. Mr Smith received conservative treatment for his neck wound. He has made a physical recovery but suffers from hearing loss and other problems. Mr Istudor injured his arm and neck and suffered a traumatic brain injury. His recovery has been slow.
7. Mr Istudor was arrested. He has been in custody, first in hospital, then at Silverwater gaol and now in the Kevin Waller Unit at Long Bay Gaol Metropolitan Special Programs Unit.
8. Mr Istudor was charged with five (5) serious offences: 1. Shoot with intent to murder - s 29, Crimes Act 1900 (NSW); 2. In the alternative to (1), wound with intent to cause grievous bodily harm - s 33, Crimes Act; 3. Possess a prohibited firearm, without being authorised to do so by licence or permit - s 7(1), Firearms Act; 4. Possess a prohibited firearm that was not registered - s 36(1), Firearms Act; 5. Possess a pistol without being authorised to do so by licence or permit - s 7(1), Firearms Act.

Pre-hearing history

1. Concerns were properly raised about Mr Istudor's mental health and his fitness and capacity to participate in a criminal trial. On 17 February 2015 Judge Hock found Mr Istudor to be unfit to enter a plea or participate meaningfully in a criminal trial on all the charges. She referred his case to the Mental Health Review Tribunal and remanded him in custody.
2. On 18 May 2015 the Tribunal concluded he remained unfit. After a further review hearing in October 2015 the Tribunal reported he was fit to be tried. The Director of Public Prosecutions has advised the matters should continue. On 18 January I held a further enquiry into Mr Istudor's fitness: s 29, Mental Health (Forensic Provisions) Act. I determined that so far as count 3, 4 and 5 (the Firearms Act matters) he was now fit to be tried and properly exercise his rights as an accused person. He then entered guilty pleas to each charge. I will sentence him for those offences in the near future.
3. However, so far as the counts 1 and 2, attempt murder, and its alternative wound with intent to cause grievous bodily harm, were concerned I did not agree with the Tribunal. After further enquiry, including hearing evidence from Dr Furst and reading a fresh report from Professor Greenberg, I held that Mr Istudor was unfit and directed that the special hearing which had previously been listed for 18 January commence for counts 1 and 2: s 30 Mental Health (Forensic Provisions) Act. In all the circumstances I did not believe it appropriate for the matter go back again to the Tribunal: s 30(2)(b) Mental Health (Forensic Provisions) Act.

A special hearing

1. A special hearing must not prejudice the accused any more than his unfitness already may do. He must have legal representation. He may raise, or have raised on his behalf whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include: 1. to ensure that justice is done, as best it can be in the circumstances, to the accused person and the prosecution, and; 2. to give an accused person an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.
2. At a special hearing the accused person is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty.
3. I must reach my verdict on what the Act describes as the limited evidence available. The verdicts open to me are: 1. not guilty of the offence charged; 2. not guilty on the ground of mental illness; 3. that on the limited evidence available, the accused person committed the offence charged; 4. that on the limited evidence available, the accused person committed an offence available as an alternative.
4. If I find Mr Istudor not guilty then that will be the end of the matter. I have outlined above what will happen if I find him not guilty on the ground of mental illness.
5. If however, I find that on the limited evidence available, he did commit the offence or offences charged, it will be my duty to decide whether, had he been fit to be tried in a normal way, and been convicted, he would have been subjected to a term of imprisonment, and if he would have been, what term would have been appropriate. Other non-custodial options are available but they could not arise here.
6. After I nominate an appropriate term of imprisonment the Mental Health Review Tribunal will continue to review him and make appropriate recommendations. My duty at present is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that Mr Istudor committed the offence charged as count 1 or its alternate count 2.

A defence of mental illness

1. In deciding whether a special verdict should be entered I am obliged to have regard to the legal and practical consequences of a finding that Mr Istudor is not guilty of murder on the grounds of mental illness.
2. The law will excuse a defendant who commits a crime if at the time they were so mentally ill, as not to be responsible according to law: s 38, Mental Health (Forensic Provisions) Act. The onus is on the defendant who must establish on the balance of probabilities that they were mentally ill at the time of the doing of the act constituting the alleged offence.
3. As Button J noted in R v Gourlay [2015] NSWSC 67 at [50] and [51]: "Although the defence is referred to in s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), it is not defined by statute. Its elements were set out well over 150 years ago in M'Naghten's Case (1843) 8 ER 718 at [722]. The defence is established if it is more probable than not that: "at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong."
4. In The King v Porter [1933] HCA 1; (1933) 55 CLR 182, Dixon J said: "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."
5. When considering whether a defendant did, or did not, know the act to be wrong; it must be asked could the defendant through a disease, disorder or disturbance of the mind think rationally of the reasons, which to ordinary people would make that act right or wrong? If the defendant could not sense or appreciate or understand that his or her act was wrong the defence will be established: " "Wrong" in the second limb of the M'Naghten Rules means "wrong" according to "ordinary standards adopted by reasonable men": Stapleton v The Queen (1952) 86 CLR 358 at 375.
6. Even if the person knew in some sense their act was wrong, if through a disordered condition of the mind they could not reason about the matter with a moderate degree of sense and composure then the defence will also be established.
7. When considering the defendant's capacity to reason or know what he (or she) was doing or know the physical nature or quality of the act or know that the act was wrong, the ordinary standards of reasonable people in our community is applied.
8. While medical evidence is not strictly required it is the usual and preferred option to call expert evidence from a psychiatrist or a psychologist or both: R v Lucas (1970) 120 CLR 171.
9. The evidence before me raises directly whether or not Mr Istudor should be held criminally responsible for his actions given that at the time he was suffering from a serious mental illness - a delusional disorder - paranoid psychosis.

A possible complication

1. Both count 1 and its alternative raise issues of intent. In the ordinary course where mental illness is raised a judge is required to decide whether the requisite intent for the offence is proved: Hawkins v The Queen (1994) 179 CLR 500; R v Minani [2005] NSWCCA 226; 62 NSWLR 490; R v Newbury [2012] NSWSC 1361 per Button J. That question usually only arises if I do not find that the defence of mental illness is established.
2. In Minani the Court of Criminal Appeal noted that the High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: 1. was it the act of the accused that, here, fired the shot or caused the wound? 2. was he criminally responsible for doing that act? 3. was that act done with the specific intention required?
3. 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. Here however there is evidence available from what he said in his interview with police that Mr Istudor did not intend to murder or injure Mr Smith; evidence independent of the impact on him of his chronic mental illness.
4. Here the Crown must prove beyond reasonable doubt that the accused voluntarily did what is alleged. Here there is a possible defence that, putting to one side all issues relating to mental illness, Mr Istudor did not intend what is alleged in counts 1 or 2 and, at worst, was criminally reckless as to the possibility of harm to Mr Smith, a further alternative offence: s33(3) and s35(2) Crimes Act.
5. Mr Issa's case from 1995 raised similar legal issues to the present: R v Issa, NSWSC, unreported 25 October 1995. After a reference to Hawkins at 517 Sperling J said at p 35: "I do not read that passage to mean that, where the objective facts do not give rise to a finding of specific intent apart altogether from any question of mental illness, the accused is not entitled to an unqualified acquittal because his conduct is, by reason of mental illness, within the ambit of the M'Naghten Rules. That would be unjust. It would, for example, require a verdict of "Not guilty on the ground of mental illness" on a charge of wound with intent to murder where the objective facts supported no more serious an offence than malicious wounding based on recklessness, if there was also evidence making out the M'Naghten defence. Why should an accused person not be entitled to an unqualified acquittal on a serious charge if the Crown fails to prove the mental element in that offence merely because the accused has made out a M'Naghten defence in answer to a less serious alternative charge? The situation would be doubly unfair where, as in this case, the evidence of mental illness is adduced by the court with a view to establishing the M'Naghten defence, contrary to the wishes of the accused."
6. That conclusion similarly applies equally here. Only if the Crown satisfy the court beyond reasonable doubt that the accused did the act alleged (without reference to any mental illness) is there then a need turn to the defence of mental illness. Only at that point would the principles set out in Minani apply.

A trial by judge alone

1. A judge must include in their judgment the principles of law applied and the findings of fact on which they relied. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve any issues of law and fact that need to be determined. I may make any finding that could have been made by a jury on the question of the guilt of the accused person. If any warnings are required, I must take those warnings into account in dealing with the matter. In doing so I must properly formulate the warnings and principles applied and also expose my reasoning process, linking the relevant principles with findings of fact so as to justify those findings and the ultimate verdict reached.

Onus of proof

1. The most important direction in any criminal trial is that the prosecution must prove each critical element of a charge beyond reasonable doubt. An accused generally has no onus of proving anything. Where a statute places an onus on an accused that onus is only balance of probabilities. I do not act on suspicion, I do not act on what I believe might probably be the case. I can only reach a guilty verdict if I have no reasonable doubt that the Crown has proved its case. If the Crown failed to meet that high onus or if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty.
2. The evidence must be considered as a whole.

Expert evidence

1. I have heard, or have read, evidence from a number of experts; Dr Furst, Professor Greenberg, both forensic psychiatrists; Crime Scene Officer Sarkissan; Mr Kerr, a DNA analyst; Senior Constable Hay and Mr Jackson, ballistics experts; Dr Mortimer, a hospital registrar; and Dr Chan, an ear nose and throat specialist. Normally a witness can only speak about facts - what they saw and said. An expert with specialised knowledge may express an opinion within his or her particular area of expertise. Expert evidence is admitted to provide me with scientific information and opinion which is within the witness's expertise, but which is likely to be outside the experience and knowledge of most Australians, including me.
2. I do not however ignore my own extensive experience as a criminal lawyer but caution myself that experience is not the same as specialist knowledge.
3. While technically I do not have to accept even the unchallenged evidence of an expert the expert evidence in this case does assist in my assessment of the evidence, the facts, and the critical issues. Accordingly, I caution myself that unless I find what was agreed or uncontested, unbelievable, I would need to have a good reason to reject it - for example, that it does not fit with other facts, which I have found, proved.

Good character

1. It is an agreed fact that Mr Istudor has no criminal record. Accordingly, I can, and do, find that he is a person of good character. I can take this fact into account in considering the improbability of his having committed the offence alleged and when I consider his explanation to police.

Circumstantial evidence

1. As there is no direct evidence of the accused's intention the prosecution case is based on circumstantial evidence. Circumstantial evidence is a number of different pieces of evidence from which I am invited to draw inferences or to reach a conclusion. I may not, as a matter of law, find the accused guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, or inference that can be drawn from it, other than the guilt of the accused. If there remains some other reasonably possible explanation of the evidence I must give the accused the benefit of the doubt and find him not guilty.

"Intent"

1. Intention and intent are very familiar words. Here they carry their ordinary meaning. Intention may be inferred or deduced from the proved facts and circumstances. Whatever a person says about their intention, after the event or even before, may be looked at for the purpose of finding out what that intention was at the relevant time. In some cases a person's acts may themselves provide the most convincing evidence of their intention. Were a specific result is the obvious and inevitable consequence of a person's act and were he deliberately does that act, I may readily conclude that he did the act with the intention of achieving that specific result.
2. The indictment specifies the intent as being "to murder" .This here, relevantly, means intent to kill. Intent to do grievous bodily harm is not sufficient: Knight v The Queen (1992) 195 CLR 475.

"Shoot at"

1. Shoot at means shoot intending to hit: R v Abdallah [2005] NSWCCA365.
2. Other terms in the indictment are uncontroversial.

Two critical issues

1. There is no doubt that on 24 September 2014 Mr Istudor fired the shot that wounded Mr Smith. The limited evidence raised at this special hearing raises two particular and critical issues: 1. Has the Crown proved beyond reasonable doubt that, without reference to any mental illness that he might have, Mr Istudor intended either to murder or, in the alternative, wound Mr Smith? 2. If he did, does he have the defence of mental illness available to him?

Counsel's submissions

1. I am indebted to counsel for their clear, concise and well-directed submissions. I trust I have done justice to them in these remarks.
2. Mr Hughes SC submitted the evidence so far as intent (absent mental illness) was all one way. He drew my attention to the matters I have already set out concluding, "it was beyond doubt"; Mr Istudor intended to shoot Mr Smith and kill him. He aimed at his head and only by the smallest possible margin was Mr Smith saved from death or really serious injury. He submitted that any other conclusion was "contrary to common sense" and "did not survive objective scrutiny".
3. Ms David took me through the ballistic evidence and evidence from the scene. She submitted that Mr Istudor's account to police remained a possible version of events that had not been excluded by other evidence. In particular, she said if Mr Smith had been standing and possibly moving at the time the shot was fired, this provided a possible explanation for why he was wounded; an explanation consistent with Mr Istudor's contention he aimed only at the wall. This possible circumstance, consistent with innocence of counts 1 and 2 meant not guilty verdicts must be returned and I then consider only the statutory alternative.
4. Both counsel were as one however on the issue of Mr Istudor's mental illness. Both submitted that the only finding available to me, having considered all the evidence, was that Mr Istudor was so mentally ill at the time the shot was fired he could not be criminally responsible for his actions.

Question 1: What did Mr Istudor intend?

1. In his interview with police, Mr Istudor put forward an explanation of what occurred: exhibit N. That evidence was not supported by evidence on oath. It was not tested in cross-examination. It remains one possible version of events, to be considered in conjunction with all the other evidence. It raised issues that if not disproved would require not guilty verdicts on counts 1 and 2 and, at most make him liable for recklessly wounding Mr Smith.
2. I put aside for the moment his comment that his mind was "not in the right place". In brief summary, he told investigating police that he fired the rifle as he wanted to make a disturbance so the meeting would end and Mr Smith could go. To do this he fired not at Smith, who he said was seated, but at the wall behind him.
3. It is an explanation that receives some support from evidence of other witnesses. For example, Ms Tumang told the 000 operator he shot at the ceiling: exhibit D, call 1. With respect, although she was trying to do her best, I did not find Ms Tumang a reliable witness. She was too inconsistent and gave contradictory accounts.
4. A ballistics expert, Mr Jackson, concluded that Mr Smith was standing when shot. If he was standing there would have been a greater chance the bullet's impact with his neck was unintended as despite Mr Istudor's saying to police he was a good shot (exhibit N, answer 383) there would have been only a small portion of wall to aim at, increasing the likelihood the shooting was accidental, if reckless.
5. I have considered the crime scene and ballistic evidence. I have considered what Mr Istudor said to police, taking into account his good character.
6. I find that despite Mr Istudor told police, and Mr Smith told me, that Mr Smith was standing when the rifle was fired. I accept the Crown submission however that this issue is not determinative of the verdict.
7. I do not accept that Mr Istudor was simply intending to break up the meeting by shooting at the wall. He may well now believe what he told police. It is however a later reconstruction of events about which I am prepared to believe he has little memory; a possible consequence of the head injury he received. The only way he could have fired without hitting Mr Smith was to aim vertically at the ceiling, given the relative positions of Smith, Ms Tumang and others at the meeting. He did not do so.
8. He did not do so because he was aiming at Mr Smith. This is the only rational conclusion that could be reached. The limited evidence available establishes that: 1. In a letter to Mr Smith in mid April 2014 he wrote he would remove him "legally or illegally" and "you will have to go and you will go:" evidence of Mr Smith, 21 January 2016; 2. On 24 April 2014, sometime before the meeting he wrote a note which he left in his unit saying in part: "I will put an end to him and then myself": exhibit Q, tab 11. 3. Before the meeting he sent his will, unit keys and a letter to his GP, Dr Malik. In that letter he said "my end is approaching fast...by the time you read this I'll be gone": exhibit M, letter to Dr Malik; 4. He told his neighbour, Mrs Fahat, not to come to the meeting, "I prefer females not to be there as you don't know what is going to happen": evidence of Mrs Fahat, 21 January 2016; 5. He secreted the rifle in the garden before the meeting. He retrieved and loaded it; 6. He had extra bullets in his pocket; 7. He had also armed himself with a large kitchen knife; 8. He extended the arm carrying the rifle toward Mr Smith; 9. The bullet was fired from a very short distance from Mr Smith - at most a bit over a metre: evidence of Mr Smith and Ms Tumang, 21 January 2016; 10. The bullet hit Mr Smith in the neck. It is unlikely the bullet would have been deflected. It had sufficient velocity to pierce the skin twice. It then hit the light fitting, broke into fragments which hit the wall high on the rear wall ceiling which then fell to the floor: evidence of Mr Jackson, 27 January 2016 and photographs in Exhibit A; 11. As he was being escorted from the building by police Mr Istudor, despite being restrained, kicked out at Mr Smith, so great was his animosity towards him: PolAir footage, exhibit P; evidence Mr Smith, 21 January 2016 and Sergeant Anderson, exhibit Q, tab 2.
9. I have no doubt, having considered all the evidence and the submissions of counsel in relation to it, that Mr Istudor shot at Mr Smith intending to murder him.

Question 2: Does Mr Istudor have the defence of mental illness available to him?

1. In a criminal trial the onus is on the accused to establish the defence of mental illness. The special hearing on this issue was conducted in a non-adversarial manner. The question of onus did not arise as the issue was squarely raised by both Mr Hughes, Senior Counsel for Crown and Ms David for Mr Istudor.
2. Mr Istudor was seen by forensic psychiatrists, Professor David M Greenberg and Dr Richard B Furst. Both gave evidence at trial. Both are respected, well qualified and experienced in the assessment and treatment of the mentally ill, particularly in a custodial setting and where allegations of serious crimes are made. Both are very familiar with s 38 Mental Health (Forensic Provisions) Act 1990 and the tests a court must apply when applying the section and the relevant law as explained in the authorities I have already referred to.

Professor Greenberg's evidence

1. Professor Greenberg saw Mr Istudor in October 2014 and again in January 2016. In his expert opinion Mr Istudor has a disease of the mind namely a delusional disorder, being a paranoid psychosis. Further he told me that because of this disease of the mind, Mr Istudor had defective reasoning at the time based on his paranoid delusion. His illness meant Mr Istudor was obsessed at the time with matters relating to the strata title, Mr Smith and his neighbour, Ms Bush.
2. He said that: "He likely understood the nature and quality of his actions and that his actions were legally wrong but at the time he likely felt that he was morally justified and he could not understand the wrongfulness because of his defective reasoning, with a moderate degree of sense of - and composure at that time. On that basis, the fact that he had this defective reasoning due to his mental disease of the mind I am of the opinion that he likely has a defence of mental illness.
3. Mr Istudor's condition has remained constant. He is "treatment resistant" to anti-psychotic medication. To this day Mr Istudor does not believe he has a mental illness: "he believes this is all true despite the fact that it is implausible and he has no insight into the fact that he has an illness."
4. Professor Greenberg has read the opinions of Dr Furst and agrees with him that Mr Istudor has the mental illness defence available to him.

Dr Furst's evidence

1. Dr Furst assessed Mr Istudor on three occasions in 2014, 2015 and at the Downing Centre complex last week. His opinion has not changed, in fact he told me the passage of time has confirmed it. He has reviewed Mr Istudor's hospital, Justice Health records and the material in the brief of evidence, including the police interview (exhibit N), and the letter to Dr Malik (exhibit M).
2. He noted that there was a difference between delusional disorders and florid schizophrenia. Commenting about the police interview he said: "to the outside person it's very hard to pick that they are thinking irrationally because there's no - not necessarily an outward sign of that disorder but it's more the thinking. … there'll be evidence of the delusions even though outwardly there's no disturbed kind of affect or disorganised thinking which you'd otherwise see in schizophrenia."
3. He diagnosed Mr Istudor as having a delusional disorder; a psychotic disorder which is characterised by fixed delusional beliefs. Here it is persistent and chronic. He said Mr Istudor "wasn't able to think clearly about his actions or rationally because of these beliefs he was harbouring"
4. In his opinion at the time of the alleged offence: "Mr Istudor was probably suffering from a delusional disorder at the time in question which is a disease of the mind in the M'Naghten sense. He has no insight into his apparent mental illness, feeling completely justified about his apparent course of action when shooting….He was probably unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure at the time in question….His delusional disorder led to his delusional thinking about the victim which constituted a defect of reason in the M'Naghten sense…In my opinion Mr Istudor has the mental illness defence available to him."

My concerns

1. At the time when Mr Istudor fired the shot at Mr Smith he was, and remains, mentally ill. He did the act charged - fired at Mr Smith. He knew what he was doing and he knew that killing Mr Smith was legally wrong. Before I can find that he is not responsible for his act, according to law, it must be shown that he could not reason about the matter with a moderate degree of sense and composure and know that what he was doing was wrong having regard to the everyday standards of reasonable people.
2. Ordinary people including those with a mental illness are capable of deciding to kill someone; sometimes for apparently rational reasons believing what they do is morally justified; sometimes otherwise sane people act for apparently irrational reasons or for reasons known only to them. They are properly found guilty of the crime alleged. What distinguishes this case from those - why should a special verdict be returned?
3. When I addressed this concern to Professor Greenberg he said of this case: "It is different because his reasoning is based on his paranoid psychotic belief system and he has difficulty reasoning with any sense of insight into the reality of the situation. A normal person who does not suffer from a psychosis may feel morally justified but their reasoning is not based on - their defective reasoning is not based on a disease of the mind."
4. I then asked: "However, you believe here it is?" He answered: "Undoubtedly."
5. I also raised my concerns with Dr Furst. He acknowledged that there are people that don't have delusional disorders who, for example, find it difficult to accept findings of a tribunal or a court, but here Mr Istudor's delusional disorder distorted everything he did. He said Mr Istudor's thinking was clouded and irrational because of his delusional disorder. He drew an analogy with how a cataract influences a person's vision: "You can't see clearly because of the blocked vision so it's like a mental type of distortion in thinking... And that influenced everything he does".
6. The evidence of Dr Furst and Professor Greenberg allayed my concerns.

Determination

1. I have no doubt that Mr Istudor was suffering from a serious, chronic, mental illness at the time he shot Mr Smith. I have no doubt that at that time his illness, including the fact that one effect of his illness was he lacked insight into it, was such that he could not know that what he was doing was wrong. He was mentally ill, so as not to be responsible, according to law, for his action at the time when that otherwise serious criminal act was done.

Orders

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty of the charge of attempt murder by reason of mental illness is returned on Count 1.
2. No verdict is required on Count 2.
3. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Mr Istudor is to be detained at a correctional facility (the Kevin Waller Unit, Long Bay Gaol Metropolitan Special Programs Centre) or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
4. I direct that the Registrar notify the Minister of Health of these orders.
5. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and my orders and a copy of the exhibits tendered during the special hearing.

Amendments 03 February 2016 - Paragraph [65] amended. 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: 03 February 2016