R v Islam [2011] ACTSC 32

Supreme Court of the ACT|2011-03-02|Before: Mathews AJ

1. A verdict of not guilty be entered in respect of count one.

2. A verdict of guilty be entered in respect of count two.

3. Consequently, no verdict be entered in respect of count three.

... THAT on the 4th day of July 2009 at Canberra in the Australian Capital Territory ISA ISLAM attempted to murder ANDREW DYER.

AND FURTHER AND IN THE ALTERNATIVE THAT on the 4th day of July 2009 at Canberra the aforesaid ISA ISLAM intentionally inflicted grievous bodily harm on ANDREW DYER.

AND FURTHER AND IN THE ALTERNATIVE THAT on the 4th day of July 2009 at Canberra the aforesaid ISA ISLAM intentionally and unlawfully used against ANDREW DYER and offensive weapon namely, a paring knife, likely to endanger human life.

2. The accused elected to be tried by judge alone and the hearing then proceeded before myself. The hearing occupied a number of days, with the calling of numerous witnesses, and the tendering of extensive documentary material.

3. The charges relate to an incident which occurred at the Ainslie Shopping Centre on the afternoon of Saturday 4 July 2009. Much of the evidence given in the Crown case was not disputed. I shall commence with a description of those parts of the evidence which are not in contention, and then turn to those aspects as to which there is some dispute.

4. As at 4 July 2009 Andrew Dyer was working part-time at Theo's Takeaway (Theo's) food shop at the Ainslie Shopping Centre. He and the accused were known to each other, as both of them were living in Ainslie Village, not far from the shopping centre. Indeed, until a few months earlier they had been living in the same boarding house, in rooms that were opposite each other. The extent of their previous contact is one of the matters in dispute, and I shall return to it later. There is no doubt, however, that there was no love lost between these two men.

5. Mr Dyer was due to start work at Theo's at about 4.00 pm on 4 July. As he approached the shop he saw the accused standing outside. Mr Dyer wanted to avoid any contact with him, so he went around to the rear of the shop and entered through the back door. Shortly after he had arrived at the front of the shop the accused entered from the street. According to Mr Dyer, he came straight behind the counter and confronted him in an aggressive manner. At that stage the owner of the shop, Mr Rodrigo, came in from the back, and told them to "take it outside". On the way out, when they were already in the public area of the shop, a physical confrontation occurred between them. The accused stabbed Mr Dyer, who fell forward onto the floor.

6. There is no doubt, on the evidence, that the accused inflicted a number of stab wounds on Mr Dyer, both before and after he fell to the floor. Even after the blade of the knife broke off, the accused continued to strike him with the handle. Then he picked up Mr Dyer's head and smashed it onto the ground. One witness described him as kicking and stomping on Mr Dyer's head.

7. I shall be returning later to describe the details of the assault, and the extent of Mr Dyer's injuries. Most unfortunately for Mr Dyer, one of the stab wounds entered his spinal canal and damaged his spinal cord, with the result that he is now a tetraplegic, with severe weakness of the muscles on the left side of his body below the shoulder, and severely impaired sensation on his right side. He is permanently dependent on an electric wheelchair for mobility. In the circumstances, it is hardly surprising that the accused has admitted that Mr Dyer's injuries constitute grievous bodily harm.

8. According to eyewitnesses, the assault stopped as suddenly as it had started. The accused abandoned his attack and walked out to the street in front of the shop. He came back in at least twice, on each occasion moving Mr Dyer's position on the floor, saying that he was putting him into the recovery position. Otherwise, he sat outside the shop, apparently waiting for the police to arrive.

9. Not surprisingly, given that it was a Saturday afternoon in a busy shopping centre, there were a number of eyewitnesses to at least part of this assault. Several phone calls were made to the ambulance and the police. The first police to arrive at the scene found the accused standing quietly outside the shop, with his hands covered in blood. He said "I did it, I'm the one." The accused was placed under arrest and handcuffed. Shortly afterwards, Sergeant Faram cautioned him and asked what had happened. The accused said: "I am sick of him. He is always breaking into my room and stealing my stuff. I am just sick of it and I have had enough". The accused was in due course taken to the Canberra City Police Station. That evening he was assessed for his mental fitness to be interviewed. He was found to be fit, but he declined to be interviewed except in the presence of a lawyer. I shall be referring to part of this evidence later when discussing the accused's mental state.

10. The accused was in due course charged with the present charges. He has been in custody ever since.

11. I turn now to discuss the major issues in contention in relation to the first charge against the accused, of attempted murder.

12. As already indicated, there is no dispute that the accused inflicted very serious injuries on Mr Dyer. However the accused strongly denies that he had any intention to kill Mr Dyer. This is the first matter to be considered. If I were to find that he did have that intention, an issue has been raised as to the partial defence of diminished responsibility. This in turn raises a legal question as to whether this defence applies to a charge of attempted murder. Finally, in relation to any charge which I find established against the accused, there is a question as to whether there is a mental impairment defence under s 28 of the Criminal Code 2002 (ACT) ("the Criminal Code").

13. It is appropriate to commence with the relevant legislative provisions.

14. Murder is defined in s 12 of the Crimes Act 1900 (ACT) ("the Crimes Act") in the following terms:

12 Murder

(1) A person commits murder if he or she causes the death of another person -

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person.

(2) A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.

15. Section 44 of the Criminal Code deals with attempts to commit an offence. That section provides as follows:

(1) If a person attempts to commit an offence, the person commits the offence of attempting to commit that offence.

(2) However, a person commits the offence of attempting to commit an offence only if the person carries out conduct that is more than merely preparatory to the commission of the offence attempted.

(3) The question whether conduct is more than merely preparatory is a question of fact.

(4) A person may be found guilty of attempting to commit an offence even though -

(a) it was impossible to commit the offence attempted; or

(b) the person committed the offence attempted.

(5) For the offence of attempting to commit an offence, intention and knowledge are fault elements for each physical element of the offence attempted.

Note Only 1 of the fault elements of intention or knowledge needs to be established for each physical element of the offence attempted (see s 12 (Establishing guilt of offences)).

(6) However, any special liability provisions that apply to an offence apply also to the offence of attempting to commit the offence.

(7) Any defence, procedure, limitation or qualifying provision applying to an offence applies to the offence of attempting to commit the offence.

(8) If a person is found guilty of attempting to commit an offence, the person cannot later be charged with committing the offence.

(9) The offence of attempting to commit an offence is punishable as if the offence attempted had been committed.

(10) This section does not apply to an offence against section 45 (Complicity and common purpose) or 48 (Conspiracy).

16. It is common ground that, in order to establish the offence of attempted murder, the Crown must prove, beyond reasonable doubt, that the accused had the actual intention to kill Mr Dyer (see ss 56(1) and 57(1) of the Criminal Code). It is the accused's intention at the time of inflicting the relevant injuries that is to be considered.

17. In Mr Gill's written submissions on behalf of the accused, he suggested that there are four sources of evidence which are relevant to this issue. Modifying them slightly, they are:

Any inferences that can be drawn from the accused's actions at the time, including the nature of the physical attack

What the accused said later about his intention

18. The first three of these are, in a sense, inextricably interconnected. The fourth, motive, stands on its own. I propose to commence my discussion with the matter of motive. For the prior relationship between these two men permeates much of the evidence of what transpired that fateful afternoon, and gives meaning to statements and events which might otherwise appear inexplicable.

19. Both the accused and Mr Dyer were residents at Ainslie Village, a public housing complex consisting of a number of residential blocks. Until about March or April 2009 the two men were in Q Block, in rooms approximately opposite each other. Without going into great detail, it is apparent that, at least for the last few months of their joint residency, there had been considerable conflict between the accused and other residents of the block, particularly Mr Dyer. Mr Dyer (sometimes accompanied by other residents) had made a number of complaints to the management of the Village about the behaviour of the accused, mainly relating to the accused's activities in his room, which were perceived to be excessively noisy and intimidating to other residents. The accused in turn complained that property was being stolen from his room. He insisted on placing a padlock on his door, something which was normally not allowed at Ainslie Village. It was as a result of these complaints that the accused was transferred into another block a few months before July 2009. Even after his transfer, there is evidence that the accused returned to Q Block on at least one occasion, notwithstanding that it was a closed block, and only residents were permitted to enter. This was on 19 May 2009, when a resident of Q Block approached Elizabeth Parker, the Ainslie Village property manager, and reported that the accused was in Q Block. Ms Parker went there and found the accused in the public area. She asked him why he was there. He said that he had come back because "it's like you always go back to your first love, I had to come to see Andrew, but wouldn't waste your time". He then left. (I shall return later to give the accused's explanation for this strange statement). On another occasion, a resident of Q Block saw the accused looking into Mr Dyer's window.

20. Evidence as to the above matters came from witnesses other than Mr Dyer or the accused, and I accept it to be reliable. Their versions, however, were completely different. Mr Dyer in his evidence denied having ever made any complaints about the accused. He barely knew him, he said. Although they lived across the hall from each other, he, Mr Dyer, kept to himself. The accused's body language scared him, he said, so he avoided any contact with him. He had had no conversations with him. His only contact was to exchange formal greetings such as "hello", "good morning" or "goodbye".

21. The accused gave yet a different version. He said that for a short time after he first moved into Q block, he and Mr Dyer got on well. After about a month things changed. Relations with Mr Dyer became more distant, and someone started to steal his property and vandalise his room. He suspected that Mr Dyer was either responsible for this, or at least knew who had done it, for often when he returned to find his room vandalised, he heard Mr Dyer laughing loudly.

22. There are some strange aspects to all this evidence. One relates to Mr Dyer himself. Ms MacKenzie for the Crown acknowledged in her written submissions that there is ample evidence that Mr Dyer made several complaints about the accused to the management of Ainslie Village, notwithstanding his denials during the course of his evidence. Yet these denials were repeated more than once, and I can only assume that Mr Dyer was deliberately misstating the position. It is difficult to understand why he should do so. He clearly has good reason to resent the accused. Whatever the outcome of the present proceedings, it was the accused who inflicted the injuries which permanently deprived Mr Dyer of the capacity for independent living. In many respects I regarded Mr Dyer as a reliable witness. However his lack of candour about his prior relationship with the accused gives me cause for concern in relation to some aspects of his evidence as to the events of 4 July 2009 insofar as they relate to the accused. I shall be returning to this later.

23. The other strange aspect relates to the accused's continued concern about Mr Dyer, given that the accused had moved out of Q Block at least three months before 4 July. There is no suggestion, as I understand it, that Mr Dyer could have been responsible for any damage to the accused's property after that time. Yet the only recorded complaints made by the accused relate to an incident on 13 June 2009. On 14 June he complained to the police about the stealing of money and vandalising of property in his room. On 22 June he complained to the ACT Ombudsman about the refusal of the Ainslie Village management to allow him to place a deadlock on his door after his room was broken into on 13 June. The accused said in evidence that he thought that it was February 2009 when he went to the police. He also said that although most of the problems in his room - theft and vandalism - occurred in Q Block, a couple of incidents occurred in the new block.

24. A threshold factual issue needs to be determined at this stage, namely whether these events - the stealing and damage to the accused's property - happened at all, or whether they were all the product of the accused's distorted mind. This issue will assume real significance later in these reasons, when I am discussing the accused's mental state at the time of the assault on Mr Dyer.

25. In my opinion, there were some events of this nature, although it is likely that the number and seriousness of them have been exaggerated in the accused's mind, and therefore in his subsequent accounts. As I shall discuss later, both Dr Allnutt and Mr Sutton considered it likely that he had a paranoid personality disorder. This would have made him prone to overreact to events of this nature, and to harbour obsessive ideas about the person or persons he thought responsible.

26. This, then, is the background to the relationship between these two men. Even accepting that the accused had a distorted thinking process, it hardly provided a motive for him to want to kill Mr Dyer.

27. On the other hand, motive is but one of the strands of evidence to be considered in cases of this nature. The absence of a proved motive cannot be regarded as highly probative in relation to the accused's intention when he attacked Mr Dyer.

28. Before turning to the next topic, I should give the accused's explanation for the seemingly strange comment that he made to Ms Parker in May 2009, when he referred to returning to his 'first love' (para [19] above). The following passage in his evidence is not only relevant to that matter, but it also has resonance in relation to the explanation he gave for first approaching Mr Dyer on 4 July:

And she reports a conversation where you said something about first love, do you recall that conversation?---I do recall it, I walked down to see Andrew, I knocked on the door, Andrew initially came to the door and opened it, and I said, "Look Andrew we need to talk about this thing because you know I moved out, there's still this bad blood and I feel we need to talk it out, and sort it out so it doesn't keep festering or whatever", and he said, "Look I know I've got nothing to say to you so he shut the door", Todd went and got Elizabeth, and she came up, Liz said, "Look what are you doing in here it's a locked block", and I said, "Well the door's open", and she said, "Look well Andrew doesn't want to talk to you so there's no reason for you to be here you're going to have to leave", and she said, "What were you doing here anyway?" And I mean I tried to crack a bit of a joke, to try and lighten the tension, and I sort of said as a throwaway line, "I guess I'm back here because I lived here once, and it's like coming back to your first love or something", and she didn't laugh, she just looked at me like I was an idiot, so I left and I went back to my block.

29. I propose first to discuss the evidence of what transpired before the assault took place. This is relevant to the accused's reason for being outside Theo's Takeaway in the first place.

30. The accused was 36 years old at the time of the assault on Mr Dyer. "Islam" is not his birth name. In 2006 he converted to the Islamic religion, and changed his name to "Isa Islam". For some time before July 2009 he had made a practice of preaching his faith in certain public areas in Canberra, the Ainslie shopping centre being one of them. It was this, according to the accused's evidence, which took him to that area on 4 July. As was his habit, he carried with him a large bag containing a number of his papers and other belongings. He was accustomed to wearing headphones and listening to music while he preached, in order to cut out the sound of the negative responses which sometimes came from his audience. He had developed a particular protocol for his preaching sessions, and each session lasted approximately an hour and a half.

31. The accused said in evidence that he arrived at the Ainslie shops on the morning of Saturday 4 July. He positioned himself outside Theo's where he did two preaching sessions. He ate his lunch after the first of these sessions. His lunch comprised food he bought at a nearby IGA store, which he cut up by using a paring knife he had in his bag. After eating his lunch he put the knife in his pocket. It was this knife which was later used to stab Mr Dyer. When he had finished the second preaching session, the accused went to a nearby bus stop, planning to catch a bus back to Ainslie Village. However after a long wait no bus arrived, so he decided to return to the shops and do a third preaching session.

32. It was while the accused was preparing for this session, outside Theo's, that he looked into the shop and saw Mr Dyer inside. He said that he knew that Mr Dyer sometimes worked at Theo's, but he had no idea that he would be there that afternoon. When he saw him he decided to go in and talk to him about what had happened in Q Block. It was then that he first walked into the shop. He walked as far as the drinks bar opposite the door, but then decided that it was not worth trying to talk to Mr Dyer, who would only deny everything. So he turned around and walked out again. He was part way across the park when he changed his mind, and decided that he should try to talk to Mr Dyer after all. So he turned around and went back into the shop. It was on this occasion that the assault took place.

33. The details of what happened thereafter will be described shortly. In the meantime, I propose to go back and briefly discuss some of the other evidence relating to these earlier events, and the Crown's submissions arising from the totality of this evidence.

34. Jeremy Rodrigo, the owner of Theo's, started work at about 2.00 that afternoon. The accused was outside his shop when he arrived. He recognised him as an associate of Mr Dyer's. The accused was alternately standing and preaching, and sitting on a brick wall on the footpath outside the shop. He was facing the shop and looking in, and Mr Rodrigo concluded that he was waiting for Mr. Dyer. When Mr Dyer eventually arrived in the shop, Mr Rodrigo said that the accused looked very relieved and happy. Very shortly afterwards, the accused walked into the shop. Mr Rodrigo asked if he could help him. The accused turned around and walked out again without saying a word. Immediately afterwards he came back in again, and the assault occurred shortly afterwards.

35. Ms MacKenzie, in her submissions, quoted the evidence of two witnesses who observed the accused while he was still on the footpath outside Theo's. She submitted that on the basis of this evidence, combined with that of Mr Rodrigo, I should conclude that the accused was neither preaching nor preparing to preach. He was there for the sole purpose of waiting for Mr Dyer. Nor, she submitted, did the accused in fact go to the bus stop that afternoon. Finally, she submitted that the accused's account of his first entry into the shop was inconsistent with Mr Rodrigo's evidence about this matter.

36. I do not propose to discuss this evidence in any detail. The observations of the eye witnesses were not necessarily inconsistent with the proposition that the accused was concentrating and/or muttering to himself in preparation for a preaching session. Indeed, Mr Dyer said that he thought that the accused was handing out pamphlets. In any event, the accused is an eccentric man, and it would be unfair to draw adverse conclusions from apparently eccentric behaviour. Whether or not the accused went to the bus stop earlier that afternoon is a highly peripheral matter. The only basis for submitting that he did not do so was his own concession that he did not look at the bus timetable. For what it is worth, I think that he probably did do go there. The Crown also submitted that there was a clash between Mr Rodrigo's evidence and the accused's account about the accused's first entry into the shop. However I am unable to find any significant inconsistency between their accounts of this matter.

37. The one matter of real significance which arises from all this evidence is whether I should conclude that the accused's real motive for being outside Theo's that day was to wait for the arrival of Mr Dyer. The evidence of Mr Rodrigo certainly points in that direction. If I were to find against the accused on this matter it would inevitably lead to a further finding that the accused was lying in his evidence when he vehemently denied that this was the case. This in turn would seriously undermine the credibility of his evidence about other aspects of the events in question.

38. At this point it is appropriate to turn to the accused's account of this matter. He did not deny that he might have been looking into the shop, as described by Mr Rodrigo, but he said that this was a normal pattern for him. He also continuously looked inside the chemist shop, next door to Theo's, whenever he preached outside it.

39. In my view the evidence on this matter remains inconclusive. I cannot dismiss the possibility that the accused was indeed waiting for Mr Dyer. On the other hand, I do not regard the evidence as sufficiently cogent to enable me to make an affirmative finding adverse to the accused on this matter.

40. I turn now to discuss the evidence as to what transpired between the accused and Mr Dyer after the accused entered the shop the second time. These events are central to the charges against the accused, and require close analysis. Having said that, I do not propose to minutely dissect the evidence of the various witnesses, and explore all the inconsistencies between them. There were certainly a number of inconsistencies between the evidence of Mr Dyer, the accused, and some bystanders as to the details of the occurrence, including the precise places where various events took place, but their overall observations were generally very similar. In any event, it is almost inevitable that there will be differences in the observation and memory of participants and onlookers in relation to the details of events which have happened rapidly and unexpectedly.

41. I shall commence with the evidence of Mr Dyer. He said that when he first started working that afternoon he was at the cash register, because it was very busy. Within a minute the accused came into the shop. He came straight behind the counter, and started pushing Mr Dyer against the cash register. Mr Dyer asked the owner, Mr Rodrigo, to call the police. Mr. Rodrigo said "you take it outside." Mr Dyer said that he was trying to usher the accused outside, and was in the public area of the shop, when the accused pushed him back against the bain-marie. He felt a thud in the back of his head and he fell to the ground. It was not until he was on the ground that he realised that the accused had a knife. This happened when he, Mr Dyer, tried to block a blow with his hand, and the accused cut a hole through it. The accused continued to stab him. Then he stopped, and started smashing Mr Dyer's head into the ground. At this stage he was saying "die, cunt", "you bastard, die", "you're dead". Mr Dyer said that he had no recollection of the accused later rolling him onto his side.

42. Notwithstanding Mr Dyer's assertion that it was very busy in the shop at that time, it seems that the only other person in the shop when the accused came in was Mr Rodrigo. He described the accused as going straight up to Mr Dyer behind the counter. Mr Dyer said "sorry, you can't come back here." The accused said "I just want to talk to you. I want to talk to you about the shit that went down." Mr Dyer said: "mate, I don't want nothing to do with you. I don't want to know you". At that stage they were standing face to face behind the counter. Mr Rodrigo said that the accused appeared calm. It was Mr Dyer who seemed to be agitated. Mr Rodrigo told them to take it outside, and they both moved through the gap in the counter and into the public area of the shop. Once there, they started pushing and shoving each other. Mr Dyer was facing the door and the accused had his back to it. The accused then pulled a knife out of his pocket and stabbed Mr Dyer four or five times in the back, neck and shoulder area. At that stage Mr Rodrigo went out through the rear of the shop to try and get help. Mr Dyer was still on his feet when he left. By the time he returned, the attack had ceased, but the accused was still there. Mr Dyer was lying on the ground and calling out for help, and Mr. Rodrigo told him that help was on the way. The accused said "Shut the fuck up, mate. I'm helping you." After that the accused went outside. Mr Rodrigo said that he might have come back inside the shop later, but he did not see him place Mr Dyer on his side.

43. The only other person inside the shop at this time was Mr John Grame, who was a regular customer at Theo's. Mr Grame was 81 at the time, and has since died. His statement, made later on 4 July 2009, was by consent admitted into evidence. When Mr Grame first walked into the shop the two men were standing face to face. The accused was facing the door, and Mr Dyer had his back to it. It appeared that they were having an argument. Mr Grame heard the accused say words similar to: "Fuck off. You'll learn to obey", and "You'll learn not to touch my stuff." The accused had his arms on Mr Dyer's arms. Mr Grame walked past them and sat down at the back of the shop. At that stage Mr Rodrigo came out of the back area of the shop and told the two men to go outside. The accused pulled Mr Dyer by the front of his shirt, and Mr Dyer fell to the ground. As he was trying to get up, the accused punched him in the face two or three times. He then started to stab Mr Dyer. At this stage, Mr Dyer was lying on the ground. After about four stabbing motions something shattered in the accused's hands, and Mr Grame saw a fragment of a knife fall onto the ground. The accused then pushed Mr Dyer's head into the ground four or five times. Finally, the accused stood up and stomped on Mr Dyer's head and kicked him in the head area. Whilst all of this was going on, Mr Grame described the accused's facial expression as blank and calm.

44. The attack finished very quickly, according to Mr Grame. The accused walked outside, but then returned shortly afterwards and tried to move Mr Dyer onto his side, similar to the recovery position. It appeared that the accused was trying to help him. The accused then went outside and sat down until the police arrived.

45. The Crown called a number of people who were in the street outside Theo's Takeaway during part of this time, and who described what they saw. I do not propose to go through all their evidence, as it does little to contribute to the overall picture of events. One of them, however, bears mention. That was Mr Luis Arango, who drove to the shopping centre that afternoon and parked immediately outside Theo's. When he arrived he noticed a person with earphones outside the shop. When Mr Arango returned from doing his shopping he saw the same man inside Theo's, apparently having an argument with another man. The accused (for the first man was undoubtedly the accused) bent down and got something from his bag. Mr Arango then saw the accused moving his hand several times with a knife in it. He then proceeded to stab the other man in the neck. The other man initially tried to turn around, and then fell onto the floor. The accused continued to stab him in the neck. Mr Arango's attention was momentarily distracted. When he looked back, he saw the accused continue to attack the victim with stabbing motions, but he only had the handle of the knife in his hand. At that stage the accused grabbed the upper part of the victim's back and proceeded to smash his head onto the ground.

46. Mr Arango's observations ceased at that point, as he went to help a young boy who was extremely upset at what had happened.

47. Mr Arango impressed me as an accurate and observant witness, and I accept that the sequence of events is generally as he described them. It is consistent with much of the other evidence in the case.

48. At this stage I turn to discuss the accused's account of these events. It is to be found in the written instructions he gave to his lawyers on 12 November 2010 (ex OO) and in his evidence at the trial, given on 9 December 2010.

49. In exhibit OO, the accused said that when he went into the shop he was "wound up and pretty angry", but he did not think he would lose his temper. He had determined to have it out with Mr Dyer and get some answers. The following are the portions of those instructions which directly relate to the assault on Mr Dyer and its aftermath:

Andrew was behind the counter. I said to him words to the effect, "What's going on Andrew. I want to talk to you about what has been going on in my room." Andrew replied, "I don't want to talk to you - get out." I said, "No, you are going to talk to me." I then lifted up the [hinged] counter top and proceeded towards him. We were face to face. The old Greek manager said, "you both get outside. Take it out of the shop Andrew." Andrew started to move to the door. Andrew then grabbed the counter top and pulled it down. I was on the other side of the counter. Andrew turned around and said, "No, I don't want to talk to you."
I lifted the counter again and got right up close to him. I said, "I want some fucking answers. You need to tell me who has been messing with my stuff." At this point we were nose to nose. I said, "You fucking tell me now who has been in my room." Andrew replied, "I don't want to talk to you - fuck off." With this, my temper was rising, there was a push by Dyer then I just went berserk and I lost it.
I grabbed Andrew with both my hands and smashed him up against the bench top. The knife which I had used to cut my lunch had been in my suit pocket. At this point I grabbed the knife and stabbed him [I kind of remember doing this]. At this point everything was moving very fast. It was like a scene in the movie 'Chopper' after Chopper had been on speed. I may have said, "Fuck you, learn to obey and you will learn not to touch my stuff."
I stabbed him in the shoulder about 4 or 5 times. I then grabbed him again and smashed him on to the ground, where I punched him on top of his head. The hand that I punched him with was still holding what remained of the knife. I punched him about 20 times to the top of his head with the knife in my hand. I also smashed his head into the ground at least twice. I stood up and kicked him at least once. During all of this I was just manic; I was completely out of control.
I then must have dropped what remained of the knife. I heard 'ting, ting' sound. I looked down and the knife was on the floor. Everything returned to normal speed now. It was the sound of what remained of the knife hitting the floor that took me out of it. There was blood everywhere. The Manager had long gone and there was a customer, an elderly man crouching/cowering in the corner. He kept saying, "Don't hurt me, don't hurt me." I said to him, "I have nothing against you." After the first 'ting' everything had gone super clear like a photograph.
At this point, Andrew was trying to get up. I thought I might have killed him. I knelt down over him. He said, "Can you help me, can you please help me?" I had done a first aid course and I moved him into the recovery position with his left arm out. I checked his airways. I asked him if his mouth was clear and if he could breathe. He replied that he could. I picked up things. They had dropped out of my wallet which had fallen out of my pocket on the floor.
There were 5 or 6 people outside the shop. When I came out some started running. I called out, "Whoever has a mobile phone, call an ambulance."
I then went back inside. Andrew had moved again. I moved him out of the blood and put him in the recovery position again. He said, "I can't stay in that position - it is uncomfortable." He wanted to sit up. I sat him up against my left leg. I said, "Just wait, an ambulance is coming." I thought about calling an ambulance myself, but there were no public phones. Andrew then fell down again and I held him up again for what seemed like ages. I then propped him against the wall and I again went outside to try and get an ambulance. I think I took my bags outside. I went back in at least twice. I said I had placed him in the recovery position.

50. In his evidence, the accused gave a generally similar account of these events. The one matter which he corrected related to the hinged counter-top, which he had referred to on three occasions in paras 15 and 16 of his instructions. In fact there was no such top, as the photos of the shop clearly showed. There was an uninterrupted gap in the counter which allowed access between the staff working area and the public area. The accused said that he remembered the counter top from previous visits to the shop. In acknowledging that he was mistaken about the presence of this barrier on the afternoon in question he was, in effect, conceding that he must have reconstructed at least this aspect of his account when giving his written instructions. Not surprisingly, the Crown has relied on this discrepancy, and I shall be returning to it later.

51. The accused said that once he and Mr Dyer had reached the public area of the shop, and were walking towards the entrance, he assumed that they would go outside and have their conversation. Not far from the door, Mr Dyer darted back, and the two of them ended up confronting each other, and pushing at each other. At this stage, the accused said, he "snapped". He was unsure of the details, but he grabbed Mr Dyer with his left hand, and with his right hand took the paring knife out of his pocket and, with a downward motion towards Mr Dyer's shoulders and the back of his neck, stabbed him three or four times, and then threw him down onto the ground. He described himself as "completely out of control".

52. From this point, the account given by the accused in his evidence was generally in accordance with that contained in his instructions. He repeated that it was the sound of the knife hitting the ground which brought him back to reality. He denied that he said "die, cunt" or "you're dead", as described by Mr Dyer. He also denied that he intended to kill Mr Dyer in this episode, saying that if that had been his intention, he would never have picked such a public location with so many witnesses.

53. I turn now to say something about the injuries sustained by Mr Dyer. As both counsel agree, this is the only truly independent evidence as to the nature of this assault. Nevertheless, this evidence is of limited assistance in determining the accused's intention at the time. For this reason I do not propose to describe the medical evidence in the type of detail which was contained in counsels' written submissions.

54. Evidence on this matter was given by Dr Frank Piscioneri and Dr Robert Hoskins. Dr Piscioneri saw Mr Dyer when he was first taken to Canberra Hospital, and oversaw his initial treatment before he was transferred to Sydney. He noted that Mr Dyer had open wounds to his right hand, the left side of his face, the left side of his neck and the right shoulder region. He had weakness on his left side and diminished sensation on his right side, indicating a partial laceration of the spinal cord.

55. Numerous photos were taken of Mr Dyer's injuries at Canberra Hospital. These served to show the extent and seriousness of those injuries. They were primarily around the face, the head and the neck, and also to the right arm and hand. These latter injuries were probably defensive injuries. The photos were examined by Dr Hoskins, an expert in forensic medicine with extensive experience in seeing photographs of injuries and assessing their causes. Dr Hoskins gave evidence in which he described the difference between an incised wound and a laceration. An incised wound is a cut wound, which in this case would mean a stab wound. A laceration is a tear in the skin which is generally caused by the skin being compressed between the bone and an external object, often a blunt object. Once a wound has been sutured, it is very difficult to be certain which type of injury it was, although there are some reliable indicators. Dr Hoskins said that there were two stab wounds to the back of Mr Dyer's neck and shoulder region, including the wound which penetrated the spinal canal. All but one of the facial wounds were definitely lacerations. The single exception was a wound on the forehead which might have been an incised wound, but the doctor was unable to say with certainty. There was also an incised wound on the back of Mr Dyer's right hand, and probably another one on his right forearm.

56. Dr Hoskins had examined the CT scans which showed damage in the area of Mr Dyer's spinal cord. This was clearly caused by a stab wound, whose point of entry was between the third and fourth cervical vertebrae. Looking at the blade of the knife which was found at the scene (which was 8.5 cm in length) Dr Hoskins considered that it would probably have gone to its entire depth. He was asked about the force that would be required to do this, and responded that it "wouldn't really be terribly much". He went on to explain that once a knife has penetrated the skin, it has gone through the tissue of maximum resistance, and it does not take much force for it to penetrate everything else under the skin, so long as it does not hit bone. In cross-examination, Dr Hoskins agreed that "the wound as and where caused would have been unlikely to have been fatal".

57. The principal significance of the medical evidence is that it is essentially consistent with the accused's version of events. Indeed, as Mr Gill correctly pointed out, the accused said that he inflicted more stab wounds than the medical evidence indicates. The accused said in exhibit OO that he stabbed Mr Dyer in the shoulder "about 4 or 5 times". Yet Dr Hoskins said that there were probably only two stab wounds in this region. The other injuries are all consistent with the accused's description of punching Mr Dyer's head with the handle of the knife, "smashing" his head on the ground, and kicking him when he was on the ground. In other words, this evidence does not support the proposition, as urged by the Crown, that the accused was seeking to minimise the seriousness of his actions during the course of his evidence.

58. Before discussing the inferences to be drawn from the accused's actions on 4 July, it is appropriate to deal with the other matters which go to the question of intention, namely what (if anything) the accused said at the time as to his intention, and what he said later.

59. Mr Dyer said in his evidence that when he was lying on the floor and the accused was smashing his head onto the ground, the accused was saying words to the effect of "Die cunt", "You're dead, die", "You bastard, die". The Crown, not surprisingly, relies on this evidence as significantly supporting the proposition that the accused was intending to kill Mr Dyer at the time.

60. The accused, however, strongly denies using these words. This is one of the major factual disputes in the trial. I should say at the outset that I am not satisfied that these words, or others to similar effect, were in fact used by the accused while he was assaulting Mr Dyer. Nobody other than Mr Dyer described the accused saying words to this effect. Of course, there was only one other person in the shop at this stage of the assault, and that was Mr Grame. Mr Rodrigo had already left to try and get help. Mr Grame said that he heard the accused muttering, but he could not make out what he was saying.

61. As already indicated, I generally regarded Mr Dyer as a reliable witness in most respects. However there were some aspects of his evidence, particularly relating to the accused, which did not accord with other evidence in the case. I have already discussed the evidence relating to their previous dealings, and the respects in which Mr Dyer's assertions as to his prior relationship with the accused were clearly incorrect.

62. A further very significant matter, which is closely connected to this issue, is this; The accused said that when he first approached Mr Dyer in the shop on 4 July it was because he wanted to talk to him about what had been happening at Ainslie Village. For reasons which I shall give shortly, I accept his evidence on this matter. One of the strongest grounds for doing so is that the accused's version was supported by Mr Rodrigo, who said that when the accused first came up to Mr Dyer, he said: "I just want to talk to you. I want to talk - I want to talk to you about the shit that went down." Yet Mr Dyer denied that the accused said anything about wanting to speak to him. Mr Gill put to him three times in cross-examination that when the accused first approached him he said that he wanted to talk to him. Mr Dyer disagreed with this proposition, saying that when the accused came behind the counter "he didn't say anything, he just had this evil smirk and very confident feel about himself."

63. Mr Dyer, as indicated, has every reason to resent the accused, who on any way of looking at it, was responsible for the fact that Mr Dyer will never again be capable of independent living. It is not surprising that he might, perhaps even unconsciously, have reconstructed the events of that afternoon in a manner which reflects adversely upon the accused.

64. In the circumstances, I do not accept that the accused used the words attributed to him by Mr Dyer. It follows that there is no evidence of anything said by the accused at the time of the assault which throws light on his intention.

65. I turn now to discuss what the accused has said since then as to his intention at that time.

66. Several witnesses described the accused as making apparently strange remarks when he was in the street immediately after the assault and before the police arrived. One, for instance, said that the accused called out, towards the inside of the shop "How do you feel about your temple of light now?" However there was no evidence of anything said which was relevant to his intention at the time of the assault. Since then, in his written instructions (ex OO) and his evidence at the trial, he has consistently denied that he intended to kill Mr Dyer.

67. In order to reach a conclusion adverse to the accused on this issue I would need to be satisfied beyond reasonable doubt that when the accused assaulted and wounded Mr Dyer he intended to kill him. I should say at the outset that I am unable to make this finding.

68. I do not accept that the accused's intention, when he first approached Mr Dyer, was to inflict injury upon him, let alone to kill him. Indeed, in my opinion the evidence points in the opposite direction, namely that he wanted to talk to him about the events at Ainslie Village. This was consistent with Mr Rodrigo's evidence as to the first words which passed between them. It is also consistent with the fact that the only weapon carried by the accused was the small paring knife which he had used to cut up his lunch. The blade of the knife is only 8.5 cm in length. If the accused had entered the shop with the intention of killing Mr Dyer, one would have thought that he would have taken a much more effective weapon with him.

69. This, of course, is hardly the end of the matter. For it is his intention at the time of inflicting the injuries which is central to this issue. The absence of premeditation is a relevant but by no means decisive consideration.

70. The Crown submissions refer to a number of bases upon which it is suggested that I should reject the accused's account, and find that he intended to kill Mr Dyer when he inflicted these serious injuries upon him. One related to the discrepancy between the accused's instructions (ex OO) and his evidence as to the existence of the hinged counter-top. Ms MacKenzie also relied upon the fact that, on one view of the evidence, the first stab wound was inflicted when Mr Dyer was looking away. This indicated that the accused was behaving opportunistically, she submitted. However I am unable to attach any real significance to this matter. The evidence is by no means all one way. In any event, on the accused's own version, the final straw which made him lose his control and lash out at Mr Dyer was the latter's dismissive attitude when he turned around to go back inside the shop.

71. A further matter relied upon by the Crown related to the accused's evidence that it was the sound of the knife hitting the ground which made him "snap out of it" and regain control of himself. Ms MacKenzie pointed to several photos of the inside of the shop which were taken shortly after the incident, and which showed the handle of the knife on the "welcome" mat near the front door. The knife would have been most unlikely to make any noise when it hit this surface, she submitted. I accept this to be so. On the other hand, the photos show the knife to be close to the edge of the mat, and it is always possible that it was displaced at some stage, or even that it bounced from the floor onto the mat. One thing is certain, namely that something happened to make the accused not only desist from his attack on Mr Dyer but to try to render him assistance. For, contrary to the Crown submissions, I accept that when the accused later returned into the shop and moved Mr Dyer's position on the floor, he was trying to place him into the recovery position. The great bulk of the evidence supports this conclusion, which itself is inherently inconsistent with the proposition that the accused's intention was to kill Mr Dyer.

72. For all these reasons I cannot find beyond reasonable doubt that the accused's intention, when he inflicted these serious injuries upon Mr Dyer, was to kill him. It follows that an essential ingredient in the offence of attempted murder has not been made out, and that the accused is entitled to an acquittal on the first charge in the indictment.

73. This finding makes it unnecessary to discuss the partial defence of diminished responsibility, and the difficult question of whether it can apply to a charge of attempted murder.

74. I turn now to discuss the second charge in the indictment, namely that the accused intentionally inflicted grievous bodily harm upon Mr Dyer.

Intentionally inflicting grievous bodily harm

75. This offence is created by s 19 of the Crimes Act which, as relevant here, provides as follows:

Intentionally inflicting grievous bodily harm

(1) A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

(2) However, for an aggravated offence against this section, the maximum penalty is imprisonment for 20 years.

76. As already indicated, the accused has admitted that the injuries sustained by Mr Dyer as a result of this assault constituted grievous bodily harm. This is clearly an appropriate admission, given the devastating consequences to Mr Dyer.

77. The only remaining matter which requires to be proved in order to sustain this charge is that the accused intentionally inflicted this harm. The onus and standard of proof are the same as for the element of intention in the first charge, namely it must be proved by the Crown beyond reasonable doubt. However, from a factual point of view, it is much easier to infer that there was an intention to inflict the damage which was actually caused than it is to infer that the damage was inflicted with the specific intention of achieving a further end, as was required under the first charge.

78. Mr Gill submitted that the evidence indicates that the accused "was not thinking clearly at all" during his assault on Mr Dyer. On one level this may be so, but there is no suggestion that his actions were involuntary at the time. He clearly understood the physical quality of his actions, and was able to describe them in considerable detail later. The obvious and inevitable consequence of those actions was that Mr Dyer would sustain serious injuries. In stabbing Mr Dyer several times, and, amongst other things, repeatedly bashing his head on the ground, he must have realised and intended that really serious injuries would follow.

79. For these reasons I have no difficulty in finding, beyond reasonable doubt, that the accused intentionally inflicted grievous bodily harm upon Mr Dyer.

80. A conviction under the second count will therefore follow, subject to the issue, which was raised by the defence, of mental impairment. I turn now to discuss that matter.

81. The defence of mental impairment is established under Part 2.3 of the Criminal Code. The relevant provisions are sections 27 and 28, which provide as follows:

(1) In this Act:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(2) In this section:

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(c) the person could not control the conduct.

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the tribunal of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must make or return a special verdict that the person is not guilty of the offence because of mental impairment.

82. In order for this defence to succeed, it is necessary for the accused to prove, on the balance of probabilities, that at the time of this offence he was suffering from a mental impairment that had one of the effects referred to in s 28(1). It is paragraph (c) which is primarily relevant here, namely that the accused could not control his actions when he inflicted the injuries on Mr Dyer.

83. The accused has been assessed by a number of forensic mental health experts. In particular, psychiatrists Dr Graham George and Dr Stephen Allnutt assessed him and gave evidence of their findings in relation to the applicability of this defence, as did the psychologist Mr Tom Sutton. However before turning to their evidence, it is appropriate to say something very briefly about the accused's background.

84. The accused is now 38 years old. He was born in Sydney on 22 February 1973, and adopted at the age of six months. He completed his secondary schooling with good results, and is clearly an intelligent man. At the age of 15 he joined the RAAF, where he remained until 2001. In 1999 he was involved in a car accident in which his head hit the windscreen. This was followed by a brief period of unconsciousness. Afterwards his friends started telling him that his personality had changed, and that he had become more aggressive and angry. It was this change of personality, he said, which led to his seeking a discharge from the RAAF two years later. In 2003 he went to Kuwait where he worked as a military contractor for eighteen months. It was as a result of his Kuwait experiences that he converted to Islam and changed his name. He also changed his habits. Whereas he had previously partaken liberally of alcohol and sometimes cannabis, he became totally abstemious. He is estranged from his adoptive family, and has no close friends or associates.

85. The accused was assessed by a number of mental health professionals in the weeks immediately after his arrest in relation to this matter. The first was Dr Luke Streitberg, who was employed at the time by Clinical Forensics ACT. He saw the accused later on 4 July in order to assess his fitness to be interviewed by the investigating police. Dr Streitberg was looking for any mental health issues that would affect the accused's ability to answer questions appropriately and in his own best interests. The accused's behaviour since his apprehension had been noted by the arresting police as "calm and co-operative". That was also Dr Streitberg's assessment of the accused's demeanour during their interview. He rated the accused as "normal" in all relevant respects, including "insight and judgement/awareness of circumstances", as well as "memory (recent and remote)". Dr Streitberg asked the accused if he had any blank spots in his memory over the previous 24 to 48 hours, to which he answered in the negative. There was nothing in the accused's presentation, Dr Streitberg considered, to indicate that he was suffering from psychosis. Dr Streitberg concluded that the accused was fit to be interviewed. However, as already indicated, the accused declined to be interviewed except in the presence of a lawyer, and no interview in fact took place.

86. On 6 July the accused was assessed by Jessica Rofe, a social worker who worked in a mental health clinician role at the Alexander Maconochie Centre ("the AMC"), which is the correctional institution where the accused was sent shortly after the events of 4 July. It is standard practice, she said, for an induction assessment to be carried out in relation to all new detainees at the centre. Ms Rofe completed a report in which she noted that the accused was pleasant and co-operative. There was no evidence of any formal thought disorder, and his thought content was considered to be "appropriate to questions asked and his situation". His memory was described as "grossly intact."

87. On 15 July the accused was further assessed by Linda Wigginton, a registered nurse employed by the Forensic Mental Health Team in ACT Mental Health. It was decided, she said, to conduct a further assessment because of the serious nature of the charges and because it was the accused's first time in custody. Without going into the details of her findings, she found nothing abnormal or inappropriate in the accused's thought content, mood, judgement or insight. She concluded: "Isa was pleasant and co-operative throughout the interview, maintained good eye contact and rapport was established. I found him to be a good historian with an open and engaging manner." (ex EE).

88. I have recounted in considerable detail the evidence of the people who saw the accused and assessed his mental health within a short time after the offence, for it is his mental state when he inflicted these injuries on 4 July 2009 which is to be determined under this head.

89. Before turning to the expert evidence which goes directly to the issues raised under this defence, I should briefly refer to the evidence of Dr John Kasinathan, a consultant psychiatrist for ACT Health. In the middle of 2010 the accused asked to see a psychiatrist, as he was complaining of depression and anxiety-related symptoms. Dr Kasinathan saw him on 10 June 2010 at the AMC. He concluded that the accused was suffering from mild depression accompanied by anxiety symptoms. There was no sign of psychosis. At the accused's request, the doctor put him on a regime of antidepressant medication.

90. Dr Graham George is a highly experienced forensic psychiatrist and a consultant to Forensic Services ACT Health. He saw the accused only a matter of weeks after the offence, namely on 28 July 2009. In a report of the same date (ex P), Dr George recorded the following summary and opinion:

Mr Isa Islam is a 36 year old man who presents for psychiatric assessment in the context of his current charges. A mental health report has been ordered by the court. Mr Islam does not necessarily present any symptoms of mental illness or mental impairment. During the course of the history taken, he indicated that he was involved in a motor vehicle accident in the past and it appears that he suffered a closed head injury. However, he regained consciousness relatively quickly and recalled the circumstances of the accident and the fact that it took some time for him to be extracted from the wreckage of his car.

Normally, any form of organic brain damage is associated with a significant period of post traumatic amnesia. Post traumatic amnesia in excess of 24 hours is, generally, associated with permanent brain damage. Mr Islam appears to have been rendered unconscious for a relatively short period and then on regaining consciousness he does appear to have recalled events from that point in time onwards. It does not appear that he had any significant post traumatic amnesia.

However, it does appear that he may well have a lower frustration tolerance. It is possible that he could have had come [sic] specific frontal lobe damage such that his tolerance for frustration is less and he is more prone to act impulsively or without thinking through consequences. This could only be ascertained through psychometric evaluation. However, in general terms, there is no strong evidence of organic impairment.

My general conclusion, therefore, is that Mr Islam does not suffer a mental illness nor does he suffer mental impairment. He is aware of the fact that he needs to address issues related to management of feelings of anger. Other than this he is not receiving psychiatric intervention or treatment. There are no grounds for a Treatment Order related to the Mental Health (Treatment and Care Act) 1994. There does not appear to be any requirement for Mr Islam to be followed by mental health services over time.

91. By the time Dr George came to give his evidence, Mr Sutton had performed psychometric evaluations of the accused, as recorded in two reports dated respectively 18 August 2010 and 31 October 2010. I shall be describing these shortly. Dr George said that his conclusion that the accused did not suffer a mental impairment had not changed after reading these reports. Nor did he find any evidence of mental illness when he assessed the accused in July 2009. Clinically, he did not think that the accused had suffered frontal lobe damage as a result of the accident in 1999.

92. The accused said in evidence that he was not entirely frank with Dr George. He was concerned, he said, that if he told the doctor all the details of his history he might be moved into a psychiatric facility. Amongst other things, he did not tell him about his anxiety attacks.

93. I turn now to Mr Sutton's reports and evidence. Mr. Sutton first saw the accused in August 2010 at the request of the Legal Aid Office, at which time he administered a number of psychological tests. His first report, dated 18 August 2010, is exhibit 5(1). In it, Mr Sutton noted that the accused had high average intelligence, and was motivated to perform to the best of his ability. Nevertheless, tests showed unsatisfactory verbal memory processing and verbal memory. In addition, there were mixed results in tests of executive process. These results, he said, were strongly suggestive of some executive dysfunctions, but were not so low as to be dysfunctional in everyday life. The accused's emotional assessment profile was invalid due to a very negative response style. Mr Sutton noted that the combination of these results "do not at this stage add up to an impairment sufficient for me to say he has no control over his action. Nor can I say they were caused by his 1999 car accident."

94. Mr. Sutton's clinical view as a result of this first consultation was that the accused presented well, "as competent and with good interpersonal skills. Beneath this has been a longstanding and developing paranoid ideation, which has become less controllable with the various events of his life." He recommended further testing of memory function and further assessment by a psychiatrist before impairment could be considered.

95. Further tests were duly carried out before Mr Sutton's second report of 31 October 2010 (ex 5(2)). After assessing the results, Mr Sutton concluded as follows:

The neuropsychological data does not definitively indicate he suffered a permanent traumatic brain injury from his 1999 motor vehicle accident, nor from earlier accidents he has experienced.
There is evidence for distorted thinking on perceptual and self answer personality tests, and some tests of executive functioning within otherwise intact cognitive processes. This is likely a longstanding pattern and precedes the 1999 accident.
He presents well, as competent and with good interpersonal skills, though he does not like emotional closeness. Beneath this has been a developing distorted internal ideation, which has become less controllable with the various events of his life.
His life history indicates progressive deterioration in his ability to control or contain internal distorted thoughts and impulses.
He still requires assessment by a forensic Psychiatrist, and should not be tried without such an opinion. I understand finding a suitable person within the limitations of legal aid finances is difficult, but he should not be denied a full assessment due to his adverse economic circumstances.
Impairment and Criminal Responsibility - Division 2.3.2:

He would appear to satisfy the definitions of section 27 'mental illness' in that there is an "underlying pathological infirmity of the mind". 2. Re 28(1)a: I believe he knows the nature and quality of his conduct. There is no cognitive evidence against this.

Re 28(1)b: I believe he knows the conduct was wrong for the same reasons.

96. In his evidence, Mr Sutton said that the accused's executive dysfunctions were related to his frontal lobe issues, and represented an impairment "because they are outside the range of what one would expect."

97. The final witness called by the defence was Dr Allnutt, an extremely experienced forensic psychiatrist who saw the accused on 18 November 2010 and completed a report two days later. He undertook a very detailed assesment of the accused's history, including his account of the offence. He also reviewed the reports of the various mental health professionals who had assessed the accused, including Dr George and Mr Sutton. In his report (ex 6) Dr Allnutt said that the combination of the accused's history, which included a decline in his performance and increased behavioural problems after the car accident in 1999, together with his clinical presentation, made him "suspicious" that the accused had suffered frontal lobe damage. Further, if other evidence led to the conclusion that the accused had a delusional belief about the victim, this would also constitute a mental impairment. As to the matters referred to in paras (a) to (c) of s 28(1) of the Criminal Code, Dr Allnutt said as follows:

I do not believe the evidence would support the conclusion that he was unable to know the nature and quality of his conduct.

In the absence of evidence of a delusional belief I am not of the view that there was significant enough evidence to support the conclusion that at the time he did not know that the conduct was wrong, that is, I do not believe that his impairment would have eroded his capacity to reason with a moderate degree of sense and composure about whether the conduct as seen by a reasonable person was wrong- this was clear from his post offence behaviour and response.

I remain unable to definitively rule out that his belief that the victim was harassing him was delusional but at this stage have not concluded this.

Whether or not as a consequence of his brain damage he suffered a compromise in his capacity to control his actions to the extent that he was unable to resist the impulse to act and could not control his conduct is at issue.

Damage to the frontal lobe area of the brain is commonly associated with a compromised capacity to control; it would be reasonable to hold the view that if he had frontal lobe damage he was more prone to act impulsively and to rigidly hold strong persecutory views about others intentions towards him and thus less capable than a person with a normal brain to control his conduct towards the victim, about whom he held a firm belief that he had been responsible for damaging his property and as a consequence towards whom he held strong feelings of resentment and on this basis the court could conclude a defence of mental impairment; but the evidence is marginal at this stage, in this regard at this stage.

98. In his evidence, Dr Allnutt said that much would depend on whether the accused's belief that Mr Dyer was implicated in persecuting him at Ainslie Village was a delusional one, or whether there was some basis for this belief. Even in the latter case, the doctor said, it was very likely that the accused had an exaggerated interpretation of what was going on, as he tended to agree with Mr Sutton that the accused has a paranoid personality disorder. I understand Dr Allnutt to be saying that this does not amount to a mental impairment. Even if it did, the doctor said that he considered it a "marginal call" as to whether the accused was unable to control his actions. He concluded that it was a difficult issue, but he did not think that the accused would cross the line as to incapacity to control his actions.

99. The first question to be determined is whether the accused was suffering a mental impairment or a mental illness under s 27 of the Criminal Code at the time of the offence. This is a matter which must be proved by the defence on the balance of probabilities.

100. There is no serious suggestion that the accused was suffering a mental illness. Accordingly, the focus has always been upon whether he was suffering a mental impairment at the time. According to Dr Allnutt, this depends, at least to some extent, on whether the accused's belief that he was being persecuted at Ainslie House was delusional or whether there were some grounds for that belief. As I have already indicated, I consider that there were real grounds for the accused's belief that his property was being vandalised and stolen. It is also likely that Mr Dyer, at the very least, knew who was involved in this. This being the case, it cannot be said that the accused was delusional at the time. Certainly his perception of these events was exaggerated, but on the evidence this does not amount to a mental impairment under s 27.

101. Mr Sutton was the only expert who considered that the accused was suffering from a mental impairment, because his executive dysfunctions were "outside the normal range". I do not take Mr Sutton to have been addressing the issues in ss 27 or 28 when he made this assessment. Even if he was, the two psychiatrists clearly do not consider that this was sufficient to amount to a mental impairment.

102. In the result, I am not persuaded on the balance of probabilities that the accused suffered a mental impairment at the time of the offence, within the meaning of s 27 of the Criminal Code.

103. Even if I had found that there was a mental impairment at that time, I would not have been satisfied that it had any of the effects set out in s 28(1). The only one of these which was seriously in issue was (c), namely that the accused could not control his conduct. But given the evidence of Dr George and Dr Allnutt, I could not find this affirmatively established by the defence.

104. It follows that the defence of mental impairment has not been made out. No other defence has been raised in relation to the charge of intentionally inflicting grievous bodily harm.

105. In the result, the accused will be acquitted of the first charge in the indictment, and convicted of the second charge, namely that he intentionally inflicted grievous bodily harm on Mr Dyer. There is no need to address the third, alternative, charge.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.

Solicitor for the plaintiff: Director of Public Prosecutions for the ACT

Solicitor for the defendant: Legal Aid Office (ACT)

Date of hearing: 22, 23, 24, 25 and 29 November 2010 and 3, 7, and 9 December 2010

At a glance

Court

Decision date

Before

Source

Judgment (132 paragraphs)

Parties