R v Krey

Relevant principles

1. The Crown bears the onus of proving the charge of murder and doing so beyond reasonable doubt. If that is done, then the onus shifts to the defence to establish the elements of the partial defence of substantial impairment on the balance of probabilities. As this is a trial by judge alone, I note s 133 of the Criminal Procedure Act 1986 (NSW), which is as follows: "133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
2. I have already referred to the onus and standard of proof in relation to the charge of murder and how that shifts to the defence on the question of substantial impairment, if the elements of murder are satisfied. Other relevant principles are as follows.
3. I must consider the evidence impartially and dispassionately, without prejudice or sympathy to either the accused or the deceased, or to any other person.
4. Not all inconsistencies in the evidence need be resolved. Rather, I am to determine the issues of fact that are relevant to the elements of the charge and, if the elements of murder are otherwise made out to the requisite standard of proof, the partial defence. In doing so, I bring to bear my common sense and life experience.
5. I must be conscious of the difference between evidence which I regard as reliable, and evidence of a witness which I accept is honestly given, but which may nevertheless be unreliable.
6. I am not obliged to accept the whole of the evidence of any one witness; I may accept some parts and reject other parts, if I find some part of that evidence to be unreliable.
7. In drawing inferences, I must be satisfied that they are reasonable and drawn from the facts that I find established by the evidence.
8. The accused exercised his right of silence in the trial. I draw no inference adverse to him by him so doing.
9. I note that the accused has no criminal record other than a matter of shoplifting. Although the defence has not formally raised the accused's good character, there is no evidence of past unlawful behaviour by him and I take that into account in his favour.
10. In relation to the opinions of the forensic experts, I note that the weight to be attributed to their opinion evidence is dependent upon the reliability of the material provided to them.
11. I have careful regard to the submissions that have been put to me by the Crown and defence in their addresses.
12. The verdict must be according to the evidence and the directions of law that I find to be appropriate.

An overview of the stabbing

1. The accused resided in Whalan at an address that I will identify with a pseudonym of Number 93, Coulter Street ("Number 93"). It was a double-storey semi-detached townhouse, being the Western-most townhouse in a row of six that lay approximately East-West. To the South, the row backed onto Coulter Street. To the North was an unfenced grassed common area ("the common area"). Facing onto the common area from the North was another row of townhouses, which backed onto a street that I will refer to as Warner Street.
2. A broad concrete footpath ("the path") ran through the middle of the common area in the same East-West configuration, with narrower paths radiating off to the North and South, to the entrances of the individual townhouses on both sides of the common area. To the West, the footpath crossed another of similar width that lay North-South. The path continued in an Easterly direction for at least a kilometre, through suburban Whalan.
3. The parts of the townhouses that faced their respective streets had fenced-in yards, so that although the dwellings bore the street addresses, in reality they were the back yards and the front of the two rows of townhouses were the sides that faced the common area. Number 93 had steps leading up to a small porch, where the entrance was located. There were windows on both sides of the door.
4. Resident with the accused were his girlfriend, AJ, who was aged 15 at the time, his mother, Renai Krey ("Ms Krey"), and a brother, KK, who was aged six.
5. On 15 July 2017, which was a Saturday, the accused awoke at about 4pm in his bedroom on the first floor of his house, having been asleep since the night before. He awoke in an angry mood and almost immediately fell into an argument with his mother, apparently about a $50 note that he believed she had taken. They went downstairs to the living room. He stood over his mother, who was seated on a lounge, alongside KK. At one point, he raised his arm towards her, and she cowed with her hands over her head. AJ, who was seated behind the accused, stood and tried to intervene by holding the accused in a hug from behind. He pushed her away, causing her to fall onto a coffee table. Ms Krey then left the house, taking KK and AJ with her. They walked in an Easterly direction along the common area, headed to a friend's place.
6. The accused was seen by neighbours to emerge through the same entrance, look around and move about the outside of Number 93, then return inside.
7. The deceased resided in a house on the Northern side of Warner Street. At the time of these events, he was visiting the occupants of a house in Warner Street, which was opposite his and faced onto the common area. The principal resident of that house was Anne Marie Daniels, and the house was referred to in that micro-community as "Danielle's house". It was diagonally to the East of Number 93.
8. Ms Krey spoke briefly with the deceased as she walked past the vicinity of Danielle's house. Shortly afterwards, the deceased was seen to walk to the door of Number 93 and knock. The deceased called out to the accused. The accused was seen at a window to the side of the door but did not open it. The deceased left and walked East along the common area. Shortly afterwards, the accused was seen to leave Number 93, walk East along the common area and meet up with the deceased. Witnesses saw the accused repeatedly stab the deceased. Some recollected them facing each other as this occurred, the accused repeatedly stabbing the deceased to his lower torso and chest. Others saw, at one point, the deceased with his back to the accused, receiving blows to his back. Eventually, while the deceased was facing the accused, he crumpled forward and to the side. Some witnesses said the deceased fell on the accused, who also fell to the ground under the deceased. Other witnesses said that the deceased fell to the ground and then the accused straddled him, continuing to stab him. At least two neighbours approached the two men while this was occurring and described verbal and physical interactions with the accused.
9. When confronted, the accused retreated towards Number 93, disappearing from sight from the common area down the Western side of Number 93, towards Coulter Street.
10. The deceased was unresponsive to first-aid efforts by members of the community. Police and paramedics arrived. He was taken to hospital and pronounced dead shortly afterwards. On all eyewitness accounts except one, the deceased's body remained where he fell until it was removed by ambulance officers. That position which, it follows according to the majority of eye-witnesses, is where the deceased was stabbed, was adjacent to two apartments further to the East of Number 93. According to a scaled map, it was on a grassed area 2m South of the path and approximately 13m from the steps leading to the porch of Number 93.
11. Shortly afterwards, the accused arrived on foot at the house of his paternal grandfather, James Bobak, which was approximately 1.5km away in the neighbouring suburb of Emerton. Mr Bobak gave evidence that the accused told him: "I think I hurt someone". The accused's clothing was bloodied. Mr Bobak told the accused to have a shower and gave him fresh clothing. Shortly after the accused finished showering, the police arrived and arrested him. A toxicology report on a sample of the accused's blood returned a negative result for alcohol and drugs, except for cannabinoids, but at a quantity that was so small it could not be quantified.
12. The post-mortem analysis revealed that the deceased had received 12 sharp force injuries. Four of these wounds had both entry and exit points, making 16 apparent wounds to the surface of his body; five to the back of his torso, seven over the abdomen, one to the left side of his face and three to his left arm. Only two of the wounds to the deceased's torso caused "severe injury", being one to the left side of the back which injured the deceased's left lung and heart, and one to the right side of the back of the torso, which injured the right lung, right kidney and liver. Two of the wounds were 16cm deep and one was between 15cm and 18cm deep. The deceased had a blood/alcohol content of 0.232g of alcohol per 100ml of blood.
13. According to the autopsy report, the height of the deceased was 182cm and his body weight was 105kg. The height of the accused is 185cm, according to Justice Health records.
14. The stabbing of the deceased, in a public place in view of his neighbours and friends, was a traumatic experience for those who witnessed it. I note that the deceased's high blood/alcohol content, which was more than four times the maximum blood/alcohol concentration for driving, may explain why he was unable to react defensively to the attack upon him by running away, fighting back or calling out for help.

The case for the Crown

1. In its opening, the Crown noted that the issue in the trial was whether the defence could establish to the requisite standard the partial defence of substantial impairment and stated its position in relation to it: "The Crown's position in relation to that … will be, depending upon how the evidence in the trial actually unfolds, including the evidence of forensic psychiatrist Dr Stephen Allnutt on behalf of the Crown, that it could be open to the Court to find that the accused was likely to have been substantially impaired for the purposes of section 23A(1)(a) on the third limb of partial defence which Dr Allnutt identifies, which is the capacity of the person to control himself. … So … what the Crown's position is ultimately will depend upon how the facts have unfolded and what facts your Honour finds including the actual evidence of Dr Allnutt. If your Honour finds the relevant impairment to the accused's capacity is likely to have existed, the Crown's position is likely to be that nevertheless the accused hasn't satisfied your Honour in the circumstances of this case, that any impairment to his capacity was such that he shouldn't be found guilty of murder but rather of manslaughter. And in those circumstances, the Crown's position would be that the appropriate verdict is a verdict of guilty of murder."

The case for the defence

1. The defence opened that the forensic evidence would establish that the accused was substantially impaired at the time of the stabbing, pursuant to s 23A of the Act. The defence relied primarily upon the evidence of Dr Nielssen, in his report dated 17 June 2018, to the effect that the accused had a mild intellectual disability. Alternatively, Dr Pulman, Dr Allnutt and Dr Schafer had also concluded that s 23A of the Act was open to the accused, on different bases. The defence stated that it would not be submitting that the accused qualified for the defence of mental illness.
2. The defence anticipated that medical reports and records would establish that the accused, while in utero, was exposed to alcohol and prohibited drugs, consequent to addictions suffered by Ms Krey and that, over the span of his life, the accused has been diagnosed with a range of mental conditions including an attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, "severe longstanding global delay" and "receptive and depressive language delay".

Consistencies in the eyewitness accounts of what occurred

1. In all, eight witnesses gave evidence of having witnessed all or part of the stabbing, although some did not initially realise that the accused was stabbing, rather than punching, the deceased. An additional two witnesses gave evidence of the immediate aftermath and the statement of a third person who arrived immediately after the stabbing was tendered without objection. There were differences between the eight accounts of the stabbing, but there were certain common features, which are relevantly as follows:

• The accused walked from the area of Number 93 immediately before the stabbing, to where it occurred;
• The deceased was unarmed;
• The accused repeatedly stabbed the deceased, with a knife, to his upper body; and
• The deceased made no attempt to defend himself, to move away or to strike back.

Irrelevant and relevant variances in the eyewitness accounts

1. Most of the variations in the witnesses' accounts of the stabbing are inconsequential to the issues of fact in the trial, although, as I note below, they may be pertinent to the testing of a witness' credibility, where that witness has also given evidence of observations that are relevant to an issue of fact.
2. When hearing and reviewing the evidence of witnesses to the stabbing, I have been particularly conscious of any evidence that potentially offers insight into the accused's motivation and his degree of awareness of his actions at that time.

The incident at the accused's residence, Number 93

1. Ms Krey died in 2018. An amended version of her police statement, made by her on the evening of the stabbing, was read. She stated that the accused visited Mr Bobak "quite a lot". He also frequently visited Rebecca, a "close family friend [who was] about 39 years old". There was evidence that this was a reference to Rebecca Palu, who lived approximately 800m to the East of Number 93.
2. Ms Krey stated: "Both [the accused] and his girlfriend [AJ] woke up about 3.50pm … [The accused] got up angry, he was cursing and carrying on as he usually does when he gets up. … when he got up and walked down the stairs he approached me in the lounge room. [KK] was outside in the front yard playing with his mates. [The accused] came up to me. I was seated on the lounge room chair. He bent over to the lounge chair where I was and shouted, 'I should slash your fucking throat.' I said, 'I didn't do anything wrong ...' He said, 'Sick of you treating me like shit cunt.' As he shouted this, [AJ] came downstairs too and said, 'Don't talk to your mother like that.' (Words similar) I got up thinking he was going to hit me and walked outside. As I did this I saw [the accused] grab [AJ] by her arms and throw her down on to the lounge room wooden coffee table. I turned back inside and shouted, 'Come on [AJ] you're coming with me.' I saw [AJ] begin to follow me outside. I shouted at [KK], 'Come on [KK] we're going.' I didn't know where I was going but I was going. I was still in my [pyjamas] and had no shoes on. [AJ, KK] and me walked up toward [Rebecca's address] to see Rebecca."
3. AJ gave evidence. She had met the accused about three months before the stabbing. She and the accused initially lived with Mr Bobak for "a week or two" and then moved in to Number 93. On the day in question, she and the accused woke at about 4pm. The accused had an argument with Ms Krey over a $50 note that the accused was missing. The argument started in their bedroom and moved downstairs, to the lounge room. AJ followed them downstairs and saw the accused standing over his mother, who was seated on a couch, and he was raising his fist to her. KK was seated on the lounge alongside his mother. AJ grabbed the accused from behind around the waist and tried to pull him back, but he resisted and shook her off, causing her to fall on to the coffee table. AJ and Ms Krey decided to leave and go to "Rebecca and Willy's place" until the accused calmed down.
4. AJ said that, during the argument, "I don't remember exactly what was said". She said that the accused did not hit her or his mother.
5. KK was interviewed by police on the night of the stabbing. The interview was recorded and tendered. He said that the accused was angry at their mother and he did not recall what the accused had said to her. KK said: "[The accused] was tell my mum … And [AJ] holding [the accused] and watched up my mum, and [the accused] pushed them next to the table. And [AJ] is hurt, and we went Becca's house and we went here. And that's it."
6. KK said: "And my mum did this", putting his hands up to protect his face. He said: "[the accused] was smacking her". He said: "[The accused] hurt [AJ]", who "fall down the table".

Ms Krey and AJ's account of a conversation with the deceased as they left

1. In her statement, Ms Krey said: "As I was walking away from [the accused] who I saw was standing in our doorway I passed [the deceased] who said, 'Are you all right?' I said, 'He's just woken up with the shits, don't worry about it ...' … [The deceased] was standing on the footpath outside or near Danielle's house which overlooks my house. He was standing on his own … … [The deceased] wasn't holding anything, well I don't think so … … There was no one around [the deceased] when he spoke to me. I did see [the accused] was still at my front doorway just looking. He didn't say anything to us as we walked away. … As we continued to walk away I saw a female known to me as Maree who was at [Warner Street] visiting Sal. I continued walking with [AJ] and [KK] to Bec's house."
2. AJ said the last time before the stabbing that she saw the accused was when he was inside the house. She said they saw the deceased standing outside Danielle's house and that the deceased said: "'Is everything all right?' And we replied, like, 'Don't worry about it. Everything's fine.' And we continued to walk."

Jesse Kelly's evidence

1. Jesse and Natalie Kelly lived in a townhouse almost directly opposite Number 93, so that the two townhouses faced each other at a slight angle across the common area. Mr Kelly gave evidence that his attention was first sparked when he heard a woman yelling. He saw a young woman emerge from Number 93, followed by Ms Krey, who he knew by sight, and KK. When they were in front of their townhouse, as they walked away, the older woman (Ms Krey) said to the younger woman (AJ): "He did hit you. We'll go up the top of the alleyway and wait for the police".
2. Mr Kelly's evidence was that about three to five minutes after he saw the party of three leave Number 93, the accused came out onto the porch, looked to both sides, came down the steps, looked around the side of the dwelling, then went back inside and closed the door.
3. Mr Kelly then saw the deceased calmly walking to Number 93 from the direction of townhouses to the East and opposite Number 93. The deceased knocked on a window alongside the door. There was no answer, and he called out: "You shouldn't be hitting women". Again, there was no answer, and after a "minute or two", the deceased turned and walked away to the East, diagonally across the front of Number 93 and their neighbour's yard.
4. Mr Kelly then saw the accused emerge from the side of the house and, at a "moderate pace", approach the deceased. When the accused was "a metre, a metre and a half" away, the deceased turned around. Mr Kelly "slightly remember[ed]" the deceased asking: "Why did you hit your girlfriend?" and then the accused stabbed the deceased with a knife held in his right hand. Mr Kelly described the knife as: "more of a medieval thing, about eight to 12 inches long with a scallop taken out near the handle". The first knife blow was to the deceased's "left torso or rib area". Two or three further knife blows followed in quick succession to approximately the same area, after which the deceased fell forward towards the accused, then rolled to his right and fell onto his back. The accused rolled with him, then kneeled or sat on the deceased's pelvic area and continued to stab him. Throughout the confrontation, the deceased did nothing other than look at the accused. Mr Kelly did not hear them speak to each other. Mr Kelly was asked if he heard "anything said at all" by the two men and answered: "Not that I can remember … no".
5. Mr Kelly called out to the accused, "Stop", but there was no reaction. He said "it seemed like he didn't hear me or anything". He called out "knife!" to alert his wife, Natalie Kelly, and approached the men. The accused jumped up and came towards him, staring at him, holding his arms out to the side at shoulder height, knife in his right hand, yelling a few times, "What?" Mr Kelly grabbed a metre-long tree branch that was nearby and started "back-pedalling". As he did so, his wife called out "to call the cops". The accused turned and ran to the side of Number 93 and out of sight.

Natalie Kelly's evidence

1. Ms Kelly said that, as Ms Krey walked off with KK, she heard her say to KK: "He's hit her. Let's go ... We're leaving … I'm going to call the cops". She saw the accused walk from the front yard of Number 93 to outside Danielle's house.
2. Ms Kelly then heard a "commotion" with the accused. She said: "He was leaving from Danielle's and yeah, he was, I don't know, he was just going off and all I could hear 'was run at me.'"
3. Ms Kelly said that the accused continued to Number 93 where he entered and closed the door behind him. Shortly afterwards, she saw the deceased walking along the common area footpath from the area of Danielle's place, towards Number 93. He knocked on the door, saying "I just want to talk ... You're not, I don't want you to get in trouble, like you shouldn't have hit her, let's just talk this out". There was no response, although she saw the accused "peek[ing]" out through a window. The deceased then walked back towards Danielle's house.
4. Ms Kelly said that she next noticed the accused walking at a fast pace towards the deceased, who was still walking away at a normal pace. They wrestled, and she heard the deceased say: "I just want to talk to you about it". They went "down to the ground". She thought the incident was becoming serious, so she took her children inside and remained there for three to five minutes.
5. Ms Kelly said that when she came back outside, she saw her husband about to "intervene". He came within a metre of the two men while they were on the ground. She then saw the accused walking, "fast paced", to his home and go inside, while the deceased was getting up from the ground. She went back inside her house. She came back out again and saw the accused come around from the side of his house and walk "really fast" towards the deceased, who was facing towards the accused. She said: "I just saw him walking really fast up to [the deceased] and he stabbed him about six times. It was all very quick". She then took her children back inside, as her husband called out: "knife, he's got a knife". The deceased fell to the ground. Ms Kelly yelled out that she was "calling the cops" and went back inside for a few seconds to get her mobile phone. She came back outside and rang Triple-0. The accused got off the deceased and ran away.

Brooke Lupton and Jacob Lupton's evidence

1. Brooke Lupton and Jacob Lupton were siblings, who were visiting at Danielle's house at the relevant time.
2. Ms Lupton said that she spoke to the deceased at Danielle's house. She and her brother then left and made their way East of that house. She heard a male voice yelling and saw two women and a boy walking in a direction towards her. Ms Lupton heard a woman, who in her statement made on 15 July 2017 she referred to as "Renee", say: "Hurry up, he said he's going to stab us. I've contacted the police. I'm sick of this shit".
3. Ms Lupton then heard the deceased, who she saw in Danielle's front yard, say: "Just let them go for a walk. I'm sure they'll be back". She turned back around and saw a young man moving his arms in a punching motion to the stomach area of the deceased, who was in front of the young man. They were positioned "on the opposite side of Danielle's". She marked their positions on a sketch of the relevant part of the common area which approximately coincided with positions marked by other eyewitnesses as to where the stabbing occurred. She said that the deceased fell to the ground and the young man ran off, towards Number 93.
4. Mr Lupton said that he went to the deceased, who was lying on his back on the ground. He saw people rendering first aid. He rang Triple-0, which he agreed was at 5:34pm. He said at that time it was dark.

Jamie Burns' evidence

1. Ms Burns was with Brooke Lupton and Jacob Lupton. She said that after leaving Danielle's house, she heard a girl screaming, and saw a woman running with a little boy and a young girl along the "alleyway". The woman said that "some guy was going to stab them". Ms Burns said she walked in the direction they had come from: "I went further down the alleyway. I seen two figures. A little one, a bigger one. The little one was hitting into the bigger one. I thought he was punching. I ran down because the bigger fellow hit the ground. I ran down to see if he was okay and he was opened up. He had all these stab marks."

Margaret Ah-See's evidence

1. The Crown tendered an edited statement of a eyewitness, Margaret Ah-See. She stated that she was in the company of Jacob Lupton and Brooke Lupton that afternoon. Her observations were of the deceased, apparently within minutes of the stabbing having occurred. She called Triple-0 at 5:34pm.

Tanya Butler and Aaron Edwards' evidence

1. Ms Butler and her partner Mr Edwards lived in the townhouse immediately to the West of Danielle's house. Ms Butler was inside her house. She stated: "[Ms Krey screamed]: 'No one will f'ing help me. No one will open their fucking doors when I need help.' And that's when I come out onto the balcony I saw she was screaming 'When I need help, no one will answer their fucking doors. No one will open their fucking doors when I need it.'"
2. Ms Butler saw that Ms Krey was with KK and AJ and returned inside. Shortly afterwards, Mr Edwards went outside to assist with the deceased, after he had been stabbed. Ms Butler joined him in giving assistance, administering chest compressions. She noticed that another resident, Maree Templeman, was in the area in the front of her yard; she was not near the deceased.
3. Mr Edwards said he was inside with his wife and their four children when he heard the deceased's voice, which he recognised, coming from outside. Mr Edwards said: "It wasn't so much arguing, it was just his voice, and it appeared loud and it didn't seem right". He elaborated that it was something like "Oi", or "hey". He went outside and saw the deceased and the accused standing about a metre apart. The deceased was unsteady on his feet, stumbling backwards, and fell sideways to the ground. Mr Edwards did not see any hand movements from his perspective, which was from behind the deceased.
4. Mr Edwards said that he asked the accused: "What happened … what have you done?" He was asked in evidence-in-chief: "Q. When you said that, was there any response from [the accused] or anybody? A. Honestly, no. No. Q. Where was [the accused] when you said that? A. Still standing where he was. Not motionless, but I think he was unsure of what was going on himself. Q. Did [the accused] then do anything after you said that to him? A. No. He didn't approach, or he didn't say, I looked up and he just wasn't there."
5. Mr Edwards later elaborated: "I have known [the accused] for a long time and everybody in the area, we all got along. And I remember looking at him and asking what he done. And I don't believe he realised what was going on. Q. Why do you say that Mr Edwards? What led you to that conclusion that you didn't believe he knew what was going on? A. I don't know what started it or how it became, but when I looked at [the accused] and asked him what had happened, I honestly believed he was unsure. Q. How did he look to you? What was it about his appearance that made you conclude that? A. It was out of character. He looked lost. Q. He looked lost? A. Mmm. Like unsure. He didn't show any anger towards me. Q. What was the expression on his face? A. Blank."

Maree Templeman's evidence

1. Maree Templeman gave evidence that she saw Ms Krey with AJ and KK, running in an Easterly direction in the common area. She said that Ms Krey was "very frightened, very scared … very agitated". Ms Templeman said that both Ms Krey and AJ were crying.
2. Shortly afterwards, Ms Templeman saw the deceased with his back to her, facing the accused: "He turned around, like he said like something about him being a little shit, no respect. And he's turned to walk away and that's when [the accused] turned around and done like a punching motion that I thought he was hitting him. And that's when [the accused] said something about 'cop this' and 'cop that' or something to those words."
3. Ms Templeman said that the deceased swung back around to face the accused. There were more punching motions to the front of the deceased, who then fell forwards onto the accused, and they both fell to the ground, the accused falling backwards with the deceased on top of the accused.
4. Ms Templeman said that she ran to assist the deceased, putting her hands underneath him and pulling him off the accused. The accused then "jumped to his feet and he swished the knife towards me". She indicated a swinging motion in front of her chest. She said that Mr Kelly intervened, telling the accused he "wouldn't do that if I was you". The accused then ran off.
5. Ms Templeman explained where she dragged the deceased, having regard to the aerial photograph, and drew it on a map. It equates to a distance of about eight metres. She said that it took her a "couple of minutes" and that she could not recall if Mr Kelly and Mr Edwards, who were there at the time, offered to assist her.

Anne Marie Daniels' evidence

1. Ms Daniels was the person known locally as "Danielle". She gave an account that during the afternoon, the deceased was at her place. At one point, she saw Ms Krey with her son and a young girl walking away. The deceased went outside and she saw him walk to the front door of Number 93. The door opened and the deceased appeared to have a conversation with Ms Krey that lasted "About a minute, two minutes". He left and walked in an Easterly direction, following the accused, who was walking in front of him. The accused then abruptly turned around and stabbed the deceased four times in the stomach area, causing him to fall backwards to the ground.

James Bobak's evidence

1. Mr Bobak gave evidence that the accused arrived at his house in the late afternoon on the day of the stabbing. He said that the accused was "covered in blood … shaking like a leaf and … breathing … like he must have been running". The accused was not wearing shoes. The blood was "dripping", so Mr Bobak told the accused to take his clothes off and have a shower. Mr Bobak said: "I kept asking him what had happened and that, and he said, 'I don't know, I don't know, I think I hurt someone'."
2. Mr Bobak's memory of what was said was refreshed from his interview by police that night: "Q. Yeah, but in that time he was sitting down did you guys talk about anything? A. Only what happened and that, and he said he got into a big fight over there, he had been fighting with his mum and that. Q. Do you remember his exact words? A. Oh he just said he had a bad day and he said he had been fighting with his mum, been fighting with his girlfriend and he had a fight outside with some bloke. … And he said 'I think I hurt him pretty bad'. And that was about all we'd spoke about really."
3. Mr Bobak had also told police about a conversation that occurred after the accused had a shower: "… he came back in and he was sitting on the lounge. And I said 'what happened?' And he said, 'I've been fighting with me mum and me girlfriend, and I went out the front and I had a fight' with some bloke with some, some bloke over there. He didn't mention his name or anything. And he said 'I think I've hurt him pretty bad.'"
4. Mr Bobak said that as the accused sat in the lounge, he was looking out the window. The accused said, "Oh the police are here", and quickly walked out to the backyard, and then there was a knock at the door. Mr Bobak opened the door to the police. The police went to the backyard, but the accused was walking back in the door as they did so. One of the police officers gave evidence that they arrived at Mr Bobak's residence at 6:42pm.

The accused's account to police

1. The accused was interviewed in the presence of a support person, Rebecca Palu, commencing at 1:38am on Sunday 16 July 2017. The video-recorded interview of him was admitted into evidence.
2. The accused's account was as follows. He went to bed about 11pm the night before, and slept through until the following afternoon. He said (deleting repeated words): "I had a fight with mum and then … went outside, slammed the door and then mum went up to a friend's house and then … the person who I stabbed … came over, was saying stuff, like, yeah, saying stuff … and I can't remember really … I went, like, sort of … blacked out. I saw … the guy with two poles in his hand and then … I just left and then I seen the blood on the knife and then I just walked to …"
3. The accused recalled yelling at his mother and AJ, but could not recall what he had said. He thought the argument started upstairs. He was feeling angry: "I just like woke up and I was in a bad mood or something and then mum said something … and then I got, like annoyed … I think it started from there."
4. The accused thought the argument with his mother was about money but could not recall any further details. He accepted that he could have been violent or threatening to his mother in the course of the argument, but thought she, AJ and KK left the house because they hated him. He did not recall pushing AJ. He thought his mother went outside first but could not recall if she was by herself. The accused said that the deceased came to him at his house. The accused said: "And then I walked past him … I can't remember … what happened after that but then I walked back around the corner and then I came back and then … I can't remember what happened."
5. He then went out: "I had the knife out the front and I picked it up and I went for a walk … And I came back and [the deceased] was there yelling at me … Or something and he said that ticked me off and like everything just went black."
6. When asked what the deceased had said to him, he replied: "… something about f'n dog and … something else I don't know a couple other things I can't remember."
7. The accused recalled: "… I said … just not today, like, go away or whatever I said and then he just kept on goin'. … I think he was comin' over to come start with me 'cause I think he was a bit drunk as well."
8. The accused said: "[The deceased] … was coming to me and swearing at me … And then I walked off and then he said something else and then, just, I went into black mode … Just everything went black and then I just, like, went back to normal and then I seen this guy with two, like bars in his hand … and then I looked at the knife and there was blood on it. … Q. … when you realised that that man with the pole was there, were you walking, running or something else? A. When I realised that he was there and I … realised why he's got these poles and then looked at the knife and seen there was blood. … Q. So you realised that something had happened? A. Yeah."
9. The accused said that he could not recall if that man said anything to him: "He might've but I don't know". He thought he said something to that man, but could not recall what it was.
10. The accused was also asked: "Q. … how do you feel about what's happened? A. Bad about myself. Mmm. Q. And what do you think about the victim? Can you tell me how you feel about that? A. I feel, oh I don't know. Words can't explain what I did to him, yeah."
11. Later in the interview, the accused said: "I didn't mean for anybody to get stabbed or dead."
12. The accused was asked: "Q. And what do you do when you get angry? A. I normally go for a walk. Yeah. I go for a walk. Q. Yeah? And, what happens then? A. Then it just goes slowly down. Less anger and less anger, and it just goes away and then I just come back home. … Q. And … do you do anything else apart from go for a walk when you get angry? A. Nuh, just go for a walk. Go to my pop's or something. Yeah. "
13. The accused said the knife was in his left hand, although he is right-handed. I note that no eyewitness described the knife as being in his left hand at any stage of the incident, although some could not recall which hand was holding the knife. The accused did not remember being on the ground with the deceased.
14. The accused said he did not remember taking out his knife or stabbing the deceased and that he felt like crying, "Cause I didn't want to hurt him". When asked, why he hurt the deceased, he responded: "I don't know".
15. The accused said he knew the deceased and that "I used to call him my uncle", which was what everybody called him. He denied having had "any trouble" with the deceased previously. He said: "Oh, he's an all right person when he wants to be but when he gets on alcohol and that".
16. The accused said that the man with the two poles, which he described as being metal poles, came within four or five metres of him and he thought the man said something to him, but he could not remember what it was. He recognised him as someone who lived "across the road, I'm pretty sure". He was asked if he saw the deceased at that stage, and answered "No, not really, I just went around the corner and just started running".
17. The accused said that he told his grandfather "I think I stabbed somebody". He was asked: "Who did you think you stabbed?" He replied: "A. I don't know … I just told pop that I thought I stabbed someone. Q. … I realise that but in your mind did you actually think about who it was that you stabbed or could've stabbed? A. I think it would've been [the deceased]. … Q. OK. What made you think that? A. 'Cause that was the last person I remember seeing. … Q. And … from seeing [the deceased] standing in front of you and then you sort of blacked out of it, the next person you see is with the poles but there's already blood on a knife. Is that the case? A. Uh-huh."
18. The accused said that the knife was near a "seat" at the "front of my house". He had put it there "probably yesterday". He did not know why he had done so. He demonstrated the length of the blade, which police estimated to be about 15cm. He described it as a "decorative knife" that he had bought from a tobacconist about a year before. He had previously stored it in his room, in a drawer. When he picked up the knife, he put it in his pants. His explanation for taking it with him was that he normally took a knife with him when he went for a walk, because "BFL boys and that, they're always walkin' around wanting to rob people, take people's stuff and that". He said that if that happened, he would: "… pull it out in case one of the boys, like, try to start on me. … just show 'em it … And if they keep on goin' I'd run away, yeah."
19. The accused said that he dropped the knife on his way to his grandfather's place because it had blood on it and he might get "pulled up … didn't want to get caught".
20. The accused said that the only drug he used was marijuana, "once in a while". He said he had smoked "two joints" the night before. He described its effect on him as that "It calms me down … Makes me normal, like I can think". He said he drank alcohol, but the last time he did so was about three weeks previously. He was dependent on his mother financially. He left school in Year 9 or Year 10, in Armidale. He said that he could not write and his reading was "Not very good".
21. The accused was asked about documentation police had retrieved from his grandfather's residence that referred to him having ADHD. He was asked if he took medication for that condition and replied: "I stopped taking my pills". He said that he was on "12 or 13 … pills a day [for all] sorts of different things". He said he stopped taking them four years earlier, although I note that his grandfather, Mr Bobak, said that the accused stopped taking medication when he left his place to live with Ms Krey.
22. The accused said he had experienced blackouts before, but not for as long as this one.

Evidence as to the knife

1. The knife used by the accused to stab the deceased was not recovered. Police asked the accused, when he was arrested at his grandfather's place, where it was, and he replied: "I threw it away up near the flats in the park". Police later clarified with the accused that he meant some flats on the route that he took to his grandfather's place. A line search was conducted at that location, but they were unable to locate the knife.
2. The accused told police that night that he had used one of his "collectable knives". AJ said that the accused collected knives. She described one in particular that the accused kept on a sofa in their bedroom and which she last saw there at about 4pm on the afternoon of the stabbing. They used it to operate their bedroom door, which apparently had a jammed lock. She estimated it was 10 to 12in in overall length.
3. Mr Edwards described the knife that the accused held when he spoke to him, as "large" with a "large handle" but couldn't further qualify its length or features. Ms Templeman described the knife in her statement as having a blade that was about 17cm long and hook-shaped. However, she also agreed that she was not accurate with metric measurements.

Findings of fact in relation to the argument at Number 93 and the stabbing

Whether the accused threatened to stab Ms Krey, or assaulted AJ, immediately before the stabbing

1. The accused had little recollection of the detail of what occurred in Number 93 immediately prior to the stabbing. I note that the account in Ms Krey's statement that the accused threatened to stab her is not corroborated by either AJ or KK. However, both AJ and KK said that, although they did not recall what the accused said to his mother, he was yelling at her.
2. I take into account that Ms Krey's account is hearsay, since it was admitted into evidence in her statement and she was not available to be cross-examined on it. Pursuant to s 165(1)(a) of the Evidence Act 1995 (NSW), I approach her evidence on the basis that it may be unreliable. I also take into account that the defence does not concede that the words attributed to the accused, that he threatened to stab his mother, were in fact said. On the other hand, the statement was made within hours of the events described therein and it is not suggested that Ms Krey had a motive for being untruthful in relation to the accused's alleged threat. Within a few minutes of the argument inside Number 93, as she made her way towards Rebecca's place, Ms Krey was heard by Ms Lupton and Ms Burns to say to AJ and KK that "he threatened to stab us". I accept the evidence in Ms Krey's statement that the accused threatened to stab her in the terms alleged by her, during the course of the argument.
3. As to KK's allegation that the accused struck Ms Krey, AJ expressly denied that either she or Ms Krey were struck by the accused. Ms Krey did not allege in her statement that she was struck. I am not satisfied that the accused struck either Ms Krey or AJ. I accept AJ's evidence that the accused inadvertently pushed her onto the coffee table when he resisted her attempts to restrain him. In coming to that conclusion, I do not accept the account of Ms Krey in her statement to the extent that it suggests that the accused deliberately threw AJ against the coffee table.

The quality of light at the time of the stabbing

1. The evidence of Mr Lupton and Ms Ah-See that they both rang Triple-0 at 5:34pm was unchallenged and, therefore, I accept that the stabbing occurred moments before that time. Mr Kelly described the light thus: "There was still a bit of daylight left, still visible around". Ms Kelly said: "It was still daylight". Mr Edwards agreed that, immediately before the incident, it was "still daylight". Ms Templeman said: "I think it was dark, or little bit getting dark, I'm unsure". Senior Constable Fulton and a fellow officer were the first police to arrive on the scene, at 5:39pm. She agreed the daylight at that time was fading and said that it was "relatively dark", with some streetlights on.
2. I conclude that, at the time of the stabbing, there was sufficient natural light for the observations of all witnesses to be unaffected by poor visibility due to fading light.

Whether there was a fight between the accused and deceased, moments before the stabbing

1. This scenario comes only from the evidence of Ms Kelly. This aspect of her account is quite different from most of the others. According to her, the accused had been in the vicinity of Danielle's house after Ms Krey had departed for Rebecca's house, and the deceased had followed the accused back to Number 93. Her version had two discrete physical confrontations between the accused and deceased which, if accurate, was evidence of significant pre-planning by the accused in relation to the knife attack; he broke off the fight on the ground, went home and returned to stab the deceased.
2. In terms of her overall credibility, there can be no doubt that Ms Krey left Number 93 with KK and AJ, but Ms Kelly had no memory of anyone accompanying Ms Krey and KK as they left. She agreed that she had seen a young girl about 15 years old there "a lot", but did not see her leave with the others. In cross-examination, she agreed to differences between her account and her statement that she made to the police the day after the stabbing. In her statement, she said that when the deceased went to the accused's house, the accused had briefly opened the door. She had not referred in her statement to the accused having "peeked" through a window.
3. Accordingly, I disregard Ms Kelly's version where it is inconsistent with the evidence of other eyewitnesses, in particular, Mr Kelly, who was near that witness whenever she was outside throughout the incident.

Whether the deceased followed the accused after speaking to Ms Krey

1. The account given by Ms Daniels, in particular, her account that the deceased had a conversation with Ms Krey at the front door of Number 93 and then followed the accused, who walked away from the house, is at odds with all the other accounts, to a point that I place no reliance on those parts. She also said that she saw the accused that morning "sitting … on the top verandah having a smoke", whereas the evidence of AJ, Ms Krey and the accused in his account to police that night, was that he had slept through from the night before until about 4pm. She was a witness who had difficulty responding to questions asked of her and at times was quite hostile. I conclude that the events she witnessed were so distressing to her that the reliability of her evidence was affected to a point that I place no weight on her account that the accused left Number 93 walking in front of the deceased.

Whether the deceased said anything before he was stabbed

1. Having regard to the evidence from Mr Kelly, Ms Kelly, Ms Lupton and the accused's account to police to the effect that the deceased said something to the accused before he was stabbed, I am satisfied that this did occur.

The weight to be placed on the accused's account

1. A viewing of the video-recorded interview indicates that the accused appeared to understand most questions asked of him and was responsive to questions. I considered that his demeanour and the content of his answers were consistent with him truthfully responding to the questions asked of him.

Whether the accused attempted to stab Ms Templeman

1. Ms Templeman's evidence that the accused swiped at her with the knife is not corroborated by any other witness, nor was it mentioned in her statement to police made that night. In particular, her claim that Mr Kelly intervened at that point and threatened the accused to not stab Ms Templeman was not corroborated by him. As to the reliability of her evidence, neither Mr Kelly nor Mr Edwards gave evidence of Ms Templeman lifting the deceased off the accused or dragging his body away. As I noted earlier, the post-mortem analysis indicated that the deceased's weight was 105kg. Ms Templeman agreed that her lifting off the deceased and dragging him away was not mentioned in her statement. Given her evidence that the accused had run away, there would have been little point in dragging him that distance.
2. Ms Templeman agreed that the words she attributed to the deceased, "Little shit no respect", did not appear in her statement. In addition, there was no reference to the deceased ever having his back to the accused.
3. Having regard to the aspects of Ms Templeman's evidence as to the stabbing that are unsupported by the other witnesses, and in view of an absence of any corroborative evidence that the accused "swished the knife" towards her, particularly from Mr Kelly, I am not satisfied that the accused attempted to stab Ms Templeman.

The accused's history

1. Twenty-six documents were tendered by the defence as to the history of the accused's mental health and welfare ("the documentary material"). There was no overview of that material or other aide to its interpretation. I consider it in chronological order of the events and consultations to which the reports refer. By way of an overview of that material as to the accused's movements, complemented by information from the accused and his family that was obtained by forensic experts who prepared reports for the trial, the following picture emerges.
2. The accused was born in Sydney, the second of four children. His mother initially raised him. His parents had significant domestic violence and drug and alcohol issues and separated when he was aged about four. At that time, in 2002, his father received a lengthy prison sentence for a crime of extreme personal violence, only being released in 2017. When the accused was aged five, the family relocated to Armidale. According to some of the documentation, this was pursuant to the family being put on the witness protection program.
3. By the age of eight, the accused was in foster care, but after about eighteen months, he was moved back into his mother's care in Sydney. That arrangement did not last, and by age 10 he was in a foster placement back in Armidale. On 2 April 2009, at which time the accused was aged 10, by an order of the Children's Court sitting at Tamworth, he and his (then) two siblings were made wards of the state. In November 2010, when he was aged 12, he was placed with his maternal grandmother. Two months later, he was removed from her care, when she was taken off a train while suffering methadone withdrawals. On 18 August 2011, orders were made restoring the care of the accused, then aged 13, to his mother in a phased process of supervision over the ensuing two years. However, it appears that this did not eventuate. On 5 September 2013, when the accused was aged 15, an order was again made, making him a ward of the state. As noted by clinical neuropsychologist Dr Schafer, by that date the accused had: "… lived in 16 different placements, including authorised carer's, residential homes, kinship placements (grandmothers) and failed restorations to his mother."
4. The accused left school during the course of Year 10 and attended TAFE for a few months. He has never been employed. In July 2016, when aged 18, he moved from Armidale to Sydney, initially living with Mr Bobak. After several months, he moved in with his mother, at Whalan.

18 July 2002

1. Dr Peter Louda was a Sydney-based general practitioner. In a report dated 7 January 2008, Dr Louda noted that he originally saw the accused on 18 July 2002, at which time, I note, he would have been aged four years and two months. At that time, Dr Louda diagnosed him as having ADHD and referred him to a paediatrician, Dr R McCarthy. However, due to "multiple family problems", the reference was not followed up: "… the parents split up, both on street drugs, father ending up in Corrective Services Institution while mother is on Rehabilitation at present therefore [Billy] is in legal custody of his biological grandmother for one year."
2. Dr Louda's report is further considered below in the context of other reports, which I refer to in chronological order.

2003

1. Two reports by Dr Julie Parle, a Sydney-based consultant paediatrician, were tendered, both dated 29 April 2003. One of the reports appears to relate to an assessment of the accused conducted some weeks before that date. At the time, the accused was still aged four. Dr Parle stated that the accused had "early onset of severe disruptive and aggressive behaviours". She noted that the parents had separated seven months before, "due to long-standing history of domestic violence". She continued: "The issues raised concerning Billy's behaviour related to his danger to himself and others. He is extremely hyperactive and has been since in utero times. He will climb the roof. Even in sleep he demonstrates restless leg syndrome. He is physically aggressive, punching his mother and siblings and destroying toys. He is impulsive with no fear of danger. He fire lights and he has severe and aggressive tantrums when frustrated … Developmentally he has poor language skills, saying his first meaningful words at about 2 years of age and forming two (2) word combinations at 2 ½ years of age. He is felt to be immature for his age. He walked at 16 months of age … He was born after a pregnancy complicated by anti-partum haemorrhage at 15 weeks gestation and a possible foetal loss of a twin at that time. He was born at 42 weeks gestation by spontaneous vertex delivery … As noted previously, his mother noted that there were marked increased foetal movements, compared with her other pregnancies. … On examination … [h]e had a mild articulation disturbance and mild expressive and receptive language delay clinically."
2. Dr Parle noted a family history suggesting learning difficulties and ADHD on the accused's father's side and, to a lesser extent, on his maternal side. She commenced the accused on a course of Ritalin for his ADHD and Catapres to assist with his sleeping difficulties and recommended that he be reviewed in three weeks' time.
3. The other report refers to the accused having been reviewed the previous day, on 28 April 2003. Dr Parle noted that, following the commencement of the accused on Ritalin and Catapres: "There has been a definite response with a marked reduction in hyperactivity and impulsivity. He has been less aggressive and there has been less fire lighting."
4. She also noted that the family were to move to Armidale in the next few weeks. She recommended that the accused's parents arrange to see Dr Catherine Wiles in Armidale for ongoing consultations, as well as the local NSW Department of Education or Community Health services, to arrange a language assessment and attempt to place him in pre-school.
5. Dr Wiles, a consultant paediatrician based in Armidale, saw the accused on 11 June 2003, when he was aged five years and four weeks. She reported him having ADHD and responding to Ritalin, and "Global delay", including language delay and not being ready for school, "hence staying at Pre-school longer". She reported that the accused had a paucity of imagination but "no other marked features of Asperger/Autism". She identified as an issue: "Violence, lights fires". Dr Wiles observed: "Billy's problems are long-standing … The biggest problem for the family is the violence. The family have to hide the knives at home … Development: .. fine motor - hands continually moving, imagination: eg killing people and stabbing …"
6. Dr Wiles concluded: "Billy is 5 yo. He has huge issues with his behaviour. There is violence, lighting fires, lack of empathy, lack of social skills. He appears to have a Global Development Delay and has difficulties with his ADL (Activities of Daily Living) and is yet to have this fully assessed. Reportedly his self-esteem is okay. He has marked ADHD."
7. In a follow-up report a week later, dated 18 July 2003, Dr Wiles noted that "Billy came along because his Mum is so concerned about the lighting of fires". Dr Wiles suggested that the accused should be assessed by a psychologist.
8. On 27 October 2003, Sally Collier, a psychologist and District School Counsellor in Armidale, wrote to Dr Wiles, following on an earlier conversation with her. Ms Collier said: "As we are aware Billy and his family are placed in Armidale on the witness protection program. It is reported by Billy's mother and grandmother that the children have been witness to domestic violence and other traumatising events that probably account for some of the behaviours that are causing concern to those providing pre-school and schooling … In Billy's case these behaviours are both externalising and internalising. Billy has been firelighting at night, being aggressive and also presents as a child with little attachment to others or understanding of their feelings. At preschool he can be remote, unemotional and detached. … … As you will be aware his mother is in drug and alcohol rehabilitation for some weeks and this will create more stability in the home setting … I have been consulting with Malini Singh, Psychologist, DADHC, who is also involved with the family. Together we have completed assessments of Billy and reviewed the supports we can give this family. My clinical assessment of Billy on the Weschler Intelligence Scale for Preschool and Primary [School] Children reveals a low average ability level overall but with a disparity of twenty points between the scales … Malini completed a Vineland Adaptive Behaviour Scale Assessment with the grandmother and interestingly Billy scored at the upper level of mild intellectual delay on this scale. This also supports the idea that his interactions and adaptive behaviours are impaired probably by a traumatised early life … Malini confirms that departmental contact verifies the very difficult and traumatising history of this family. Father is in jail for attempted murder. I do not believe we can classify Billy as having an intellectual delay and therefore he will not be eligible for ongoing DADHC services." The reference to DADHC is to the (then) NSW Department of Ageing, Disability and Home Care, which provided specialist services to persons who have an intellectual disability.

2006

1. Dr Wiles saw the accused on 30 June 2006, when he was aged eight. She identified the following "Issues": "1. Maternal alcohol 2. Post Traumatic Stress Disorder 3. Past History of Physical and Mental Violence 4. ADHD 5. Oppositional Defiant Disorder ?parenting style."
2. Dr Wiles' report noted that Ms Krey claimed she had run out of the medication prescribed for the accused's ADHD (being dexamphetamine) but, in my view, the terms of the report strongly imply that Dr Wiles suspected it was being taken by Ms Krey or another adult. Dr Wiles also noted that the accused was significantly underweight and that there appeared to be significant food shortages in the home.
3. Excerpts from a document from the "Child Court Clinic", bearing a facsimile date of 18 December 2006, refer to the accused as: "… continuously experiencing visual and auditory perceptions of a delusional quality, in which he is typically surrounded by haunting jeering men with stitches in their lolling heads, with nondescriptive faces and protruding tongues, who speak gibberish, threaten him and grunt. Behind this vista of frightening men he sees metal grates in an unfamiliar street that constantly drip with blood."
4. Further on, the report stated: "Billy appears profoundly traumatised by the cumulative effect of his prolonged and chronic exposure to extreme domestic violence, which culminated in his exposure to an incident of serious criminal violence involving his father."
5. The report recommended that the accused be referred to a neuropsychiatrist for specialist clinical management of his pre-psychotic symptoms. It noted: "Billy's current foster placement does not meet his special emotional needs and would appear to be exacerbating his psychological difficulties."
6. An excerpt from an undated report of the Hunter New England Area Health Service, which appears to have been generated at about this time, refers to the accused and his family as follows: "The children's father is serving an 18 year gaol term … The children's mother has severe drug and alcohol problems and has charges pending for robbery … There is a past history of extensive exposure by the children to domestic violence and other violence. There is also a history of extensive exposure to drug and alcohol use. There is a history of antisocial behaviour in most males on the paternal side of the family and drug and alcohol use, and antisocial behaviour on the maternal side of the family. [Ms Krey's] long use of drugs and alcohol has included cannabis and amphetamines. Billy was exposed to alcohol and other drugs in the intro-utero environment …"

2007

1. Dr Wiles saw the accused on 3 July 2007, when he was aged nine, with his "carer". The identified issues were, other than those already identified on 30 June 2006: "Epilepsy … Maternal drug abuse and neglect, currently in the care of DOCS … Anxiety high levels relating to the above". Dr Wiles noted that the accused was seeing a worker with the Physical Abuse and Neglect of Children section ("PANOC") of the NSW Department of Family and Children's Services (as it then was).
2. Dr Wiles prepared a report dated 13 November 2007, when the accused was still aged nine, to be forwarded to the accused's new paediatrician in Sydney. She noted that the accused had been with the same carer for the previous 18 months and was to be returned to his mother's care "by the courts". She identified the issues as follows: "1. Abuse and neglect - with the experiencing of depersonalisation feelings and visual and auditory perceptions of delusional quality (see Children's Court report). 2. Seizures - recently diagnosed. Controlled on Epilem May 2007 … 3. ADHD - familial. … 4. Aggression - much improved since being with his carer for the past 16 months and program at school to cope with his needs and PANOC. … 5. Weight - has had decreasing weight from the 97th centile when I met him aged 5 years, at which time his height was above the 97th centile. From the age of 7 to 8 years he lost weight just prior to going into care. With increased calories over the past two months has had a weight gain of 1.5kg which is good (as opposed to previously weight static for the prior three months). 6. Post-Traumatic Stress Disorder. 7. High anxiety levels - relating to all of the above. 8. Learning disability. 9. June 2005 report that mum was about to go to jail. 10. Foetal alcohol effect - mum has ongoing drug dependency issues."

2008

1. In his report dated 7 January 2008, Dr Louda noted that the accused had been under the care of a paediatrician in Armidale. He stated: "Overall, he is much more settled and relaxed being away from his Foster family and relating well to his grandmother ..."
2. The next report by Dr Wiles is dated 11 June 2008, on which date she had seen the accused with his previous carer. The accused was aged ten. It appears that he was returned to their care in Armidale, from Sydney, where he had resided with his mother. Since his return, there had been two major "behaviour explosions" at the end of the school day. Dr Wiles reported: "He is angry and is reported to be saying adults are mean, saying adults are hitting him".

2009

1. The next report by Dr Wiles is dated 18 February 2009, when she saw the accused with a new foster mother. The identified issues were: "1. Billy's behaviour was increasingly severe over the months prior to December, with behaviour described as 'feral' 2. Abuse & Neglect. 3. Seizures … 4. ADHD … 5. Aggression - improved over the past 18 months … … 7. Post Traumatic Stress Disorder. 8. High anxiety levels … 9. Learning disability … 10. Fetal (sic) alcohol effect."

2010

1. A report dated 15 December 2010, by Donna McGushin, who was a child protection counsellor with PANOC, referred to a report dated 1 February 2010 by the Child Protection Counselling Service ("CPCS"): "At the time of the last CPCS update report (1 February 2010) therapeutic services were withdrawn for Billy as it was the view of the CPCS that Billy's deterioration in behaviour was attributable to the emotional and mental turmoil he was experiencing as a result of increased family contact, particularly the unsupervised contact with his mother [Ms Krey]. It was also the view of the CPCS that Billy's placement was in danger of breaking down due to the negative impact of [Ms Krey's] contact with Billy and the negative and invasive actions [she] was displaying towards his foster carer … The decision to withdraw therapeutic service was not taken lightly, given that Billy is in need of therapeutic intervention. However, CPCS has been involved with Billy since 2005 and has witnessed Billy at times make progress in his foster placements and at school only for these gains to be negated with unsupervised contact with his mother. It continues to be the view of the CPCS that Billy will not settle and make significant progress in permanent care while he continues to have monthly unsupervised contact with his mother. …"
2. In a report dated 17 August 2010, Dr Nick Kowalenko, child psychiatrist, stated he had assessed the accused in the company of his foster parents. He stated that he had previously seen the accused in 2005 and again in 2007. The first time was with his grandmother. In relation to the treatment of the accused with Epilim, Dr Kowalenko said: "He is being treated with Epilim since 2007 following a clinical diagnosis of petit mal seizures although this was not confirmed on EEG. His EEG in 2007 did reveal marked immaturity but no focal features … A trial of cessation of Epilim was conducted three months ago and as his dose was reduced he was noted to become very angry and aggressive. This resolved when his dose was increased again. Over the last year he has had intermittent contact with his family of origin, particularly his mother. When he was having over night stays with his mother his behaviour on returning to his placement was noticed to have markedly deteriorated. This was especially the case at school, where the deterioration was more marked and prolonged after visits to [his] mother. Since care and protection findings have limited his visits to his mother to half a day a month his overall pattern of disturbed behaviour has improved. [His foster parents] presented with Billy today because of their concerns that a few weeks ago he had lost control in the context of a temper tantrum and they were concerned that he was not aware of his surroundings ..."
3. The PANOC report by Ms McGushin, dated 15 December 2010, was addressed to a caseworker with the Out of Home Care section of the NSW Department of Family and Community Services. It noted: "… Billy's placement did break down in October 2010. As advised at our update meeting on 10 November 2010 the CPCS has now closed the case. As advised by you at the case review meeting I attended on 13 December 2010 Billy has now been placed with his maternal grandmother … on the Central Coast."

2011

1. The next report by Dr Wiles is dated 29 June 2011, when the accused was aged 13. He had been living in a community house ("Life without Barriers") with multiple carers for the previous three months. Dr Wiles said: "He tells me he has not been suspended again from high school". Later in the report, Dr Wiles said: "Billy has and a long troubled history with his emotional and physical abuse, maternal drug and alcohol abuse and multiple carers."
2. The next report by Dr Wiles is dated 12 October 2011, on which date she saw the accused with a new "house mother". She said: "Billy has a long troubled history with emotional and physical abuse and anxiety, and he seems very lonely to me, a 13 year old living in a community house with changing carers, suspended from school repeatedly, no friends named to me today and unable to tell me what defines a friend … He has recently been suspended at the end of Term 3 for fighting with one of his 'friends'. [His house mother] wonders if there has been bullying at school … Regarding the fighting at school, Billy was forgetful of the exact events. I wonder if this could be from being in an emotionally overwhelming situation."

2012

1. Dr Wiles saw the accused on 14 November 2012, when he was aged 14, with one of his "Life Without Barriers" carers. In a report of that date, she noted the current issues included: "1. Post Traumatic Stress Disorder/Reactive Attachment Disorder following early abuse and neglect … 2. Behavioural issues with black and white thinking, egocentric and social views much more like a much younger child."

2013

1. In a report dated 29 October 2013, Dr Wiles noted that the "Life Without Barriers" community house had dissolved and the accused was now living with his former carer. She said: "Billy was leaving home each day for school but not turning up to classes. 20 day suspension resulted".

2014

1. In her last report tendered in evidence, dated 14 May 2014, Dr Wiles noted that the accused had a: "Troubled childhood with removal from family care, multiple carer placement failure, group homes that closed, planning to move back with mum."

The accused's presentation to police

1. The NSW Police Custody Management Record for the occasion of the accused's arrest has an entry that the "Detained person stated he cannot read or write". As noted earlier, a support person was deemed appropriate and arranged, being Rebecca Palu. At 9:05pm, while waiting to be interviewed, the accused asked Sergeant Anderton: "The person I stabbed, can you tell me anything about him?" At the commencement of the formal interview, police indicated that from papers they located at Mr Bobak's place, they were aware that the accused suffered from ADHD and PTSD.

Evidence of Mr Bobak and Ms Krey as to the accused's mental condition

1. Mr Bobak said that the accused had lived with him for about six months before he moved in with Ms Krey. For a few months of that period, AJ lived there with the accused. The couple appeared to get along well. At that time, Mr Bobak's household included his wife and mother, who have both since died. Following the accused being placed in the Minister's care, he had in the order of 16 carers. On the night of the incident, Mr Bobak told police that: "He's only 19 but he's only like 13, 14 in the brain", which he explained in evidence was a reference to the accused's apparent level of maturity. Mr Bobak said that when the accused went to live with Ms Krey, she stopped giving him medications that he was prescribed. There was no evidence as to what the medications were for.
2. In her statement, Ms Krey said: "He is not much of a drinker (alcohol). Billy can't read and write, however, he does know right from wrong. Billy has never held a job. Billy attended Armidale Duval High School in Armidale finishing in Year 10. … Billy suffers anxiety and depression, because of the location where we live. We have lived for here for the past two years. … [He] wakes up angry … most of the time over nothing. He has also had verbal arguments with [AJ], just teenage squabbles. As far as I know he has never apart from today laid any hands on her. … Detective Caulfield asked me if he has assaulted me at any time. I told him we have had numerous arguments and never to today's extent."

A self-harm incident

1. AJ gave evidence of an incident that had occurred shortly after they started living at Number 93. Ms Krey asked AJ to walk to the shops to buy something. AJ agreed. The accused wanted to accompany her, but she preferred to go for a walk by herself. The shop was about ten minutes away. The accused became very upset and took a butter knife and tried to cut his throat. A male friend of the accused, aged 14, was present, and he and AJ managed to stop the accused, but not before he had left "a couple breaks" of skin on his throat. Mr Bobak gave evidence that a few months before the stabbing, he observed a mark on the accused's neck. The accused declined to explain it, but AJ told him what had happened.

Ms Krey's use of drugs and alcohol

1. In a report dated 16 February 2009, Dr Louda said: "… I had the opportunity to see [Ms Krey] … on a number of occasions between 1994 and 2007, her being addicted to a number of drugs which we tried to help her to seek specialised help to be detoxicated, but unfortunately she did not return for her blood test and urine test results which were organised for her in March, 2007, her being positive to 4 substances."
2. Mr Bobak said that the accused's mother, who was his daughter-in-law, was a chronic drug user over most of the 26 years he had known her. A death certificate in respect of Ms Krey was tendered in evidence. It indicated that the date of death was between 15 and 17 July 2018. The cause of death was expressed to be: "Consistent with fentanyl toxicity". I note that fentanyl is an opioid that is often an abused prescription drug.

The accused's criminal record

1. Any prior acts of violence by the accused have not been criminal acts; the only entry on his criminal record is a shoplifting matter, involving chocolate bars.

The forensic expert evidence

1. As noted at the outset, four forensic experts gave evidence in the trial, being two psychiatrists (Dr Nielssen and Dr Allnutt) and two clinical neuropsychologists (Dr Schafer and Dr Pulman). Each was provided with the documentary material, the police interviews of the accused and statements of witnesses of the stabbing.

The accused's fitness to be tried

1. Each forensic expert was initially asked for an opinion as to whether the accused was fit to be tried. A fitness hearing was conducted on 20-22 May 2019 before Hamill J. Each of the four forensic experts gave evidence at that hearing, Drs Nielssen and Schafer being of the opinion that the accused was not, and Drs Allnutt and Pulman being of the view that he was fit to be tried. His Honour concluded that the accused was unfit to be tried: R v Billy Krey [2019] NSWSC 762.
2. Pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused was referred to the Mental Health Review Tribunal, which on 27 September 2019 determined that the accused had become fit to be tried. Accordingly, the matter was referred back to the Supreme Court for a further fitness hearing, which occurred on 4 and 5 March 2020. Drs Nielssen and Schafer gave evidence that, in their opinion, the accused had become fit to be tried, and Hamill J so found: R v Billy Krey (No 2) [2020] NSWSC 199. A significant factor that likely accounted for the accused's improvement was the treatment he had received whilst on remand from his treating psychiatrist, Dr White.
3. There was a qualification to his Honour's finding, at [32], as follows: "It may also be necessary, as Dr Schafer has indicated, for [the accused] to have a support person with him in the dock as he has had in both of the fitness hearings that have been conducted before me. It may also be necessary for his solicitors to sit with him in or near the dock. Or perhaps he can be allowed [to] sit outside of the dock to give him greater access to his legal representatives: cf R v Lelikan [2018] NSWSC 1933 a judgment with which I respectfully agree. All of those things are practical matters within the power of the trial Judge to control and facilitate."
4. Mindful of his Honour's qualification, a support person from the Intellectual Disability Rights Service sat alongside the accused throughout the trial and regular adjournments were taken so that his counsel could advise him as to what was occurring in Court and the nature of the evidence.

Dr Olav Nielssen, forensic psychiatrist

1. Dr Nielssen was retained by the defence to assess the accused and was the first of the forensic experts called by the parties to have seen the accused. He interviewed the accused by audio-visual link on 12 June 2018 and produced a report dated 17 June 2018. In relation to drug and alcohol use, the accused told Dr Nielssen that he had taken alprazolam, which I note is marketed as Xanax, on one occasion, which was on the day before the offence. He took "about four or five", although he could not recall where the tablets came from or why he took them. The only effect that he recalled was that they made him go to sleep.
2. Dr Nielssen's diagnosis was of a mild intellectual disability and a substance use disorder, in remission. He explained: "The diagnosis of a mild intellectual disability is based on [the accused's] account of being unable to read or write, despite attending school until year 10, the reports of assessments of intellectual function in the medical documents provided and aspects of [the accused's] presentation during the recent interview. [The accused] reported that he did not learn to read and write despite being in foster care for most of the years of primary school and until the age of sixteen. The letters of Dr Wiles and Dr Kowlenko noted the presence of a learning disorder and borderline cognitive function. The written application in the Justice Health records appear[s] to confirm that he was unable to write an application on his own account, although he could sign his name. His language, general knowledge and reasoning ability were thought to be consistent with the presence of a mild intellectual disability. The further diagnosis of a substance use disorder is made on the basis of the history of occasional use of cannabis, which is a drug known to have harmful psychological effects, especially in young people, and the possible complications of substance use, including the possible role of the use of cannabis and tablets of alprazolam the day before the offence."
3. In relation to the question of what effect the accused's report of taking alprazolam the day before may have had on his mental state at the time of the stabbing, Dr Nielsen said that the accused: "… would not have been intoxicated with the drug the afternoon after he last had any, even if it was his first use of a dose that was greater than the usual therapeutic dose of that medication."
4. As to the accused's absence of memory of the stabbing, Dr Nielssen considered the accused's medical history of a diagnosis of epilepsy and his treatment with Epilim (valproate): "I note the previous findings of an abnormal electroencephalogram, Dr Wiles' diagnosis of epilepsy, and the history of treatment with valproate. [The accused] has also reported having amnesia of the offence itself. However, he reported remembering [the deceased] approaching him and abusing him, and also apparently told Mr Bobak that he had hurt somebody, and he does not seem to have had the kind of amnesia for the events that is usually a feature of epileptic seizures. Moreover, his ability to find his way to his grandfather's house was also inconsistent with post seizure confusion."
5. Dr Nielssen concluded that the accused's mild intellectual disability qualified him for consideration of the application of the partial defence of substantial impairment, in that it constituted: "… an abnormality of mind at the time of the events affecting his perception of events, his ability to judge right from wrong and his ability to control his actions ..."
6. Following on Dr Nielssen's diagnosis, the defence retained Dr Schafer, a clinical neuropsychologist, to determine whether the accused has an intellectual disability and, if so, the level of that disability. Dr Schafer interviewed the accused for five hours over two days, in September 2018, producing a report dated 20 September 2018. In that report, Dr Schafer reviewed in some detail the medical documentation and interviewed the accused's paternal grandmother, who informed Dr Schafer that the accused's mother was using alcohol and other drugs while she was pregnant with him. She also read Dr Nielssen's report dated 17 June 2018.
7. Dr Schafer administered a range of clinical tests in order to assess the level of the accused's intellectual functioning, including the WAIS-IV. She said: "[The accused's] Full Scale IQ score was in the borderline range (FSIQ: 76, 5th percentile). However, this measure should be interpreted with caution due to significant and unusual variability among component indices. His Verbal Comprehension Index (VCI; 1st percentile), Working Memory Index (WMI; 4th percentile) and Processing Speed Index (PSI; 3rd percentile) were all significantly and unusually below his Perceptual Reasoning Index (PRI; 63rd percentile). There were no differences amongst his VCI, WMI and PSI. … Of note: due to [the accused's] history of language disorder, his perceptual reasoning index, which was in the average range, was a more accurate measure of his intellectual functioning."
8. Dr Schafer also administered the Adaptive Skills (Adaptive Behaviour Assessment System), 3rd edition ("ABAS-3"), which she described as follows: "The ABAS Is a comprehensive, norm-referenced assessment aimed at measuring a person's adaptive functioning, namely their ability to care for themselves effectively and independently, respond to others appropriately and meet the environmental demands of home, school, work and the community. There are three adaptive domains (conceptual, social and practical) that comprise the overall general adaptive composite (GAC). The conceptual domain comprises communicating with others, applying academic skills and managing tasks. The social domain includes engaging in interpersonal interactions, acting with social responsibility and using leisure time. The practical domain is comprised of addressing personal and health needs, caring for the home, school or work environments and functioning in the community."
9. Dr Schafer asked the accused's paternal grandmother to complete the test on behalf of the accused. She concluded: "Although [the accused's] behaviour was found to be impaired across all domains, only those areas in which [the accused's paternal grandmother] made three or fewer guesses will be discussed as recommended by the ABAS manual. [The accused] was found to be impaired across the following domains: communicating with others (1st percentile), applying academic skills (<1st percentile), using leisure time (<1st percentile) and functioning in the community (1st percentile)."
10. In view of the existence of some evidence that the accused's mother had used alcohol and drugs during her pregnancy with the accused and the medical documentation as to the accused's life-long symptoms, Dr Schafer considered a diagnosis of Foetal Alcohol Spectrum Disorder (FASD). She said: "Although there are no records indicating the specific amount of maternal alcohol use, Dr Wiles made several references to maternal AOD dependence and foetal alcohol effects ... A report from the Hunter New England Area Health Service indicated exposure to alcohol and other drugs while [the accused] was in utero … [The accused's paternal grandmother] reported a history of maternal alcohol and other drug dependence while [his] mother was pregnant ... A report by a DOCS caseworker noted the fact that his mother was in alcohol and drug rehabilitation … Taking the above evidence in totality, it is my opinion that [the accused] is suffering from Foetal Alcohol Spectrum Disorder (FASD). … [The accused] presented as someone with an intellectual disability due to his poor expressive language skills. However, based on his cognitive profile, he is not functioning in the intellectual disability range. On a range of tests measuring intellectual functioning, there was significant and unusual variability amongst the different components. This result was not surprising given his history of having an expressive language disorder. For this reason, his perceptual reasoning performance, which was in the average range, is a more accurate measure of his current intellectual functioning. This finding is in line with an Early Intervention childhood assessment report from preschool when he was five years old … and from a psychological assessment report prepared for Children's Court when he was aged eight years old ..."
11. The next report was prepared by Dr Susan Pulman, who saw the accused on 5 December 2018. She was briefed with the reports of Drs Nielssen and Schafer. Dr Pulman referred to the longer of the two police interviews, as follows: "A review of the police interview indicates that [the accused] was able to understand and respond to questions appropriately. He was able to provide his version of events leading up to and after the index offence. He reported experiencing a blackout at the time he committed the offence but did not appear to evade responding to questions. There is no indication that [the accused] experienced significant comprehension difficulties during interview and, on occasion when he sought clarification, he asked 'what do you mean?' He was able to follow the line of questioning, there was no indication of difficulties with his attention or concentration. His presentation although characterised by responses which lacked detail, did not impress as [him] having an intellectual disability. His expressive language although not sophisticated is commensurate with his educational history."
12. Dr Pulman was content to accept Dr Schafer's test results in relation to the accused's intellectual functioning. In relation to the results from Dr Schafer's administration of the WAIS-IV, Dr Pulman said: "[The accused's] intellectual profile based on the WAIS-IV is inconsistent with individuals with an intellectual disability where there is typically a flatter profile and minimal difference between the index scores. Statistically significant and clinically unusual differences between index scores, as in the case in [the accused's] profile, are not observed. [The accused's] cognitive profile is consistent however with a specific learning disorder or language impairment. Language impairments are often observed in both the offender population and in children raised in out of home care where it is well established that verbal IQ is often below performance IQ … The results of [the accused's] adaptive functioning indicates that he is functioning with[in] the range of mild intellectual disability. It is unclear whether [the accused's] paternal grandmother, the respondent of the questionnaire, had lived with [the accused] or the extent to which she had the opportunity to observe his level of adaptive functioning. It is my understanding that his grandmother was unable to respond to some items due to lack of knowledge. It is therefore possible that the results may be somewhat inaccurate although it is not unexpected that [the accused] would have deficits in his adaptive functioning due to his history of child maltreatment and out of home care. Studies have demonstrated that children in out of home care have deficits in adaptive functioning ..."
13. Dr Pulman expressed reservations as to Dr Schafer's diagnosis of FASD, preferring a diagnosis of complex PTSD instead: "Although it is likely that [the accused's] deficits are to some extent associated with prenatal exposure to alcohol, the presence of extensive comorbidity including the complexity of environmental factors associated with his history of child maltreatment complicates such a diagnosis. Some of the difficulties encountered when examining prenatal alcohol exposure including failure to obtain valid and reliable prospective assessments of drinking patterns during pregnancy; a systematic lack of information on low-to-moderate-level alcohol exposure and pattern (chronic vs. binge) and timing of binges as well as failure to adequately control for [compounding] factors such as parental intellectual abilities, socioeconomic variables and other environmental issues. … A review of documentation indicates a number of references to foetal alcohol spectrum disorder as a potentially contributing factor to [the accused's] cognitive and behavioural difficulties. There is also extensive evidence of child abuse, neglect and exposure to violence, all of which are known to contribute to the cognitive deficits evident on testing and which overlap with the symptoms of FASD. The most consistent diagnosis referred to throughout the records is complex post traumatic stress disorder associated with his extremely traumatic environment. It is noted in the report prepared by the Children's Court Authorised Clinician, that the impact of family trauma is considered the most likely aetiology to explain [the accused's] challenging behaviour and psychological and cognitive symptoms. It is of particular relevance to note that Authorised Clinicians have access to the parents' medical and psychiatric history when preparing reports for the Children's Court and in the process of reviewing all documentation available has opined the most likely cause of [the accused's] behaviour in [childhood] and adolescence was due to his history of trauma. Based on my review of the documentation, I concur with this opinion."
14. As to the accused's black-out during the stabbing, Dr Pulman said: "Medical documentation indicates [the accused] has had numerous diagnoses including epilepsy. Many reports refer to [the accused] having periods of inattention, lack of awareness of his surrounding, forgetful of previous aggressive incidents and staring blankly and having blackouts. These descriptions suggest a pattern of absence like seizures (previously known as petit mal seizures) although EEG diagnostics were unable to confirm the diagnosis. A potential explanation for his forgetfulness or unawareness of his surroundings and described by [the accused] as 'blackouts' may be a period of depersonalisation or dissociative state during which he is unaware of his surroundings and cannot recall that time period. It is my opinion that at the time of the offence [the accused] was unlikely to be experiencing an absence seizure as individuals with such a disorder typically stare blankly for a few seconds and do not engage in any activity during the period of the seizure. There is also no indication from medical records that [the accused] was diagnosed specifically with temporal lobe epilepsy although he was treated with the anticonvulsant Epilim and his dosage was at less than the therapeutic dosage required to manage seizures …"
15. Dr Allnutt saw the accused on 17 September 2018 and again on 24 December 2018, and prepared a report dated 24 December 2018. He also canvassed the medical documentation and interviewed the accused's paternal grandmother. Dr Allnut expressed the opinion: "Diagnosis in this case is difficult. I note that the accused has previously been diagnosed with posttraumatic stress disorder, reactive attachment disorder, mood dysregulation, attention deficit disorder on prior consultations with … Dr Wiles."
16. Dr Allnutt diagnosed the accused with a substance use disorder (with a history of use of Xanax, and more recent use of cannabis and buprenorphine). Although he did not list the reports of Drs Schafer and Pulman as material with which he was briefed, he was aware of Dr Schafer's diagnosis of FASD and rejected it, on the basis that that diagnosis is not included in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) ("DSM-V"). Dr Allnut preferred a diagnosis of intermittent explosive disorder, and said: "Notably there is a history of possible alcohol abuse by his mother during pregnancy, antepartum bleeding which would predispose him to behavioural problems and psychiatric difficulties after birth. A prior neuropsychological assessment concluded a profile consistent with ADHD and raised the diagnosis of foetal alcohol spectrum disorder. Currently FASD is not [a] DSM V diagnosis. He manifests a long history of difficulties in controlling his behaviour with intermittent aggression, present from a young age. This raises a diagnosis of intermittent explosive disorder which is characterised by recurrent impulsive, aggressive behaviour (verbally or physically) which is difficult to predict, and out of proportion with the preceding stressor or trigger … (based on the documentation this seems to have been the case for most of his life). [P]eople with history of trauma are at increased risk of having this condition, it generally onsets in childhood, it is often associated with depressive conditions substance use and post-traumatic stress, as well as personality disorders."
17. Dr Allnutt rejected Dr Nielssen's diagnosis of a mild intellectual disability, on the basis of Dr Schafer's neuropsychological assessment, as follows: "Neuropsychological assessment has found him to have low average range intellectual functioning (therefore he would not be diagnosed with a mild intellectual deficit). Notably his executive functioning skills were in the expected range. This would suggest that cognitive deficits alone probably do not provide adequate explanation for his difficulties. I note that the neuropsychologist believed he has a specific language disorder."
18. Dr Allnutt concluded: "My current view is that [the accused] manifests multiple psychiatric problems including: a history of conduct disorder in childhood, ongoing specific language disorder, attention deficit hyperactivity disorder, persistent depressive disorder/dysthymia, and intermittent explosive disorder. It should be noted that many of the symptoms in these conditions can overlap. He manifests behavioural problems through[out] his lifetime as a consequence of exposure to alcohol in utero, traumatic/abusive/neglectful upbringing combined with inborn temperamental vulnerabilities, aggravated by use of substances. … Based on the information provided to me, I do not believe that the accused would have been compromised in his capacity to know the nature and quality of his actions or the wrongfulness of his actions and is unlikely to have a mental illness defence available to him. My preliminary view is that taking his lifetime of behavioural problems into consideration, there are grounds to argue that he had an 'underlying condition' - specific language disorder, attention deficit hyperactivity disorder, persistent depressive disorder/dysthymia, and intermittent explosive disorder and manifests a tendency to a paranoid perspective of his environment - causing an 'abnormality of mind' - that undermined his capacity to control his actions and, on this basis, a defence of a substantial impairment could be available to him." In evidence, Dr Allnutt clarified that these itemised disorders could be referred to globally as an intermittent explosive disorder.
19. Dr Nielssen re-interviewed the accused on 25 February 2020 and produced a second report, dated 26 February 2020. The primary focus of the report was the accused's fitness to be tried. For the purposes of this assessment, Dr Nielssen was provided with the report of Dr Schafer dated 9 January 2020, but not Dr Pulman's report.
20. Dr Nielssen referred to the tests administered by Dr Schafer, but maintained his earlier diagnosis of mild intellectual disability, on the basis of the accused's presentation. He said: "The basis of the diagnosis of a mild intellectual disability is set out in my previous report, and is confirmed by [the accused's] presentation during the recent interview, when his general knowledge and reasoning ability were assessed to be quite limited. I note the results of standardised tests, which found [his] overall intelligence to be around the bottom of the normal range. However, he reports that he is still unable to read, which would limit his ability to perform some tests, and my clinical impression is that his intelligence is in the sub normal range."
21. A further report of Dr Schafer dated 7 July 2020 was tendered that exclusively addressed the issue of substantial impairment, drawing on her earlier consideration of the medical documentation and interviews of the accused. She maintained her earlier diagnosis of FASD and explained how it could be "an abnormality of mind arising from an underlying condition", in the terms of s 23A of the Act: "… According to the Australian Guide to the Diagnosis of FASD, the diagnostic categories for FASD with less than three Sentinel Facial Features requires confirmed evidence of prenatal alcohol exposure and severe impairment (two or more standard deviations below the mean or less than the 3rd percentile) in at least three neurodevelopmental domains. As noted in my 20/09/2018 neuropsychological assessment findings, [the accused] was impaired across five neurodevelopmental areas: • Attention • Comprehension and expression of verbal information • Verbal learning and memory • Academic achievement - word reading, comprehension and numeracy (functioning at Year 2/3 level) • Adaptive functioning - communication, applying academic skills, using leisure time and functioning in the community … Based on the above findings combined with evidence of maternal alcohol dependence while [the accused's] mother was pregnant, I diagnosed [the accused] with Foetal Alcohol Spectrum Disorder (FASD) in my 20/09/2018 report. FASD is not only a recognised disorder in Australia but it has been included in the 10th Edition of the International Statistical Classification of Diseases and Related Health Problems (ICD-10), a medical classification list of the World Health Organisation (WHO). … According to the National Organisation for Foetal Alcohol Spectrum Disorder Australia (nofasd), common behavioural characteristics of individuals living with FASD include impulsivity, explosive behaviour, a development age younger than their chronological age, difficulty with abstract thinking, and inability to predict outcomes or understand consequences, an inability to distinguish danger from safety and an inability to tell the difference between fantasy and reality. … As documented in childhood reports, [the accused's] behavioural traits throughout his childhood were characteristic of those seen in FASD. They are also common in children who have experienced severe childhood abuse and trauma. In particular, [the accused's] reduced empathy for others, impulsivity, explosive behaviour, reduced ability to understand the consequences of his actions and his language impairment, in my opinion constitute an abnormality of mind causing an inability to control himself during the commission of the alleged offence."
22. In a further report dated 3 September 2020, Dr Pulman responded to a request for a further opinion on Dr Schafer's diagnosis of FASD and whether, in Dr Pulman's opinion, the accused had available to him a partial defence pursuant to s 23A of the Act. Dr Pulman said: "Although the extensive documentation regarding [the accused's] developmental and medical history, contains references to maternal alcohol effects, the consistent diagnosis is one of complex Post Traumatic Stress Disorder. This is not to say, that [the accused] does not suffer the effects of maternal alcohol, however, due to the complexity of [his] developmental history and exposure to complex trauma, it is unlikely to be the primary diagnosis. Furthermore, while [the accused] does have cognitive deficits in three domains, consistent with the criteria required in FASD, such deficits are also found in children and adults with a history of complex trauma, traumatic brain injury, neurogenetic and other neurodevelopmental disorders. I therefore concur with the opinion expressed by Dr Andrew White in his report to the MHRT dated 13 October 2019 that 'it is difficult to be definitive about [his] diagnosis' and 'his difficulties ... are best explained by a diagnosis of complex PTSD'. Therefore, my professional opinion that [the accused's] exposure to severe childhood trauma is the most likely explanation for his behavioural and cognitive deficits remains unchanged. Reference throughout the various expert reports to [the accused's] 'intermittent feelings of depersonalisation', 'periods of inattention', 'stared blankly into space', 'lack of awareness of his surroundings' and 'blackouts' are symptoms more consistent with his history of developmental trauma than FASD. … Irrespective of the variability in the precise diagnosis, it is my professional opinion, that [the accused] was substantially impaired by an abnormality of mind at the time of the commission of the alleged offence, given he demonstrated the cognitive and behavioural difficulties present in complex PTSD, i.e. difficulties with emotional and affective regulation and lack of behavioural and impulse control resulting in an inability to control his actions."
23. The parties tendered two further reports of Drs Allnutt and Schafer that only addressed the issue of the accused's fitness to be tried, which I disregard.

The Crown's closing address

1. The Crown submitted that the elements of murder had been established. In relation to s 23A of the Act, the Crown submitted that it was open to the Court to find that the accused's capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition but that, having heard all of the evidence, the Court would not find that the third limb of the partial defence, pursuant to s 23A(1)(b) of the Act, is made out; that is, that the impairment was so substantial as to warrant the accused's liability for murder being reduced to manslaughter. Accordingly, the Crown submitted that the appropriate verdict is murder.
2. In relation to the third limb of the partial defence, the Crown focused on what it said was a significant degree of control on the part of the accused leading up to the stabbing, which suggested that the accused's impairment was not so substantial as to warrant his liability for murder being reduced to manslaughter. The Crown noted that the accused did not follow his mother, girlfriend and brother when they left the house, but rather, walked around and then went back inside, which suggested a measure of self-control. The Crown submitted that the evidence of the eyewitnesses established that the accused then left Number 93 and walked to Danielle's house, where he spoke to the deceased and then returned to Number 93. The Crown said that this also demonstrated a significant degree of self-control, particularly as he would have had the knife with him at that point.
3. On the Crown's scenario, it is at that point, after this earlier conversation with the deceased, that the deceased went to Number 93 and attempted to have a conversation with the accused. The Crown submitted that the fact that the accused departed Number 93 from the back rather than the front door, suggested an intention on his part to catch the deceased by surprise, thus suggesting a measure of planning and control, rather than an explosive response or one where anger is the operative feature.

The defence's closing address

1. The defence disputed the Crown scenario of an earlier encounter between the accused and the deceased. The defence submitted that there was no rational basis for the stabbing and no evidence of planning on the part of the accused. It was committed in full view of witnesses, with nothing to be gained by the accused in killing the deceased, thus suggesting that it was impulsive and not thought through. If there was an intent to kill, it was formed moments before the attack.

Whether the Crown has established the elements of murder

The elements of murder

1. The elements of the offence of murder in the context of this case are that the accused caused the death of the deceased by a deliberate act, and that the act was done with intent to kill or to inflict grievous bodily harm.
2. I am satisfied beyond reasonable doubt that the actions of the accused, namely, stabbing the deceased, caused the death of the deceased.

Whether the accused was aware of what he was doing

1. The Crown scenario that the accused met with the deceased at Danielle's house, if established, suggests the accused had time to calm down after his argument with Ms Krey inside Number 93 and demonstrated a capacity for the accused to behave with a degree of normalcy before the attack. However, I do not find that that scenario is established by the evidence. The Crown accepted that it hinged upon the evidence of Ms Kelly. As I have already indicated, I reject that version on the basis that it is inconsistent with the evidence of other eyewitnesses, in particular, Mr Kelly, who was near that witness whenever she was outside throughout the incident.
2. I also note that the Crown did not open on that version of events, so that the first the defence knew that it was part of the Crown case was in the Crown's closing address.
3. The accused's account to police and the forensic experts that he did not realise what he had done until Mr Kelly intervened, receives some corroboration from the evidence of Mr Kelly and Mr Edwards. Mr Kelly said that the accused did not appear to hear him when he called out to him to "stop!" and when he approached the accused, he stood and walked towards Mr Kelly, repeatedly yelling, "What?" Mr Edwards' unchallenged evidence, that he had known the accused for a long time and thought his facial expressions and reaction generally when he challenged the accused immediately after the stabbing were indicative of him not realising what he had done, has significant weight.
4. However, the accused's account suggests that he maintained awareness of his actions up to and including the oral exchange with the deceased which, on his version, clearly motivated him to respond by stabbing the accused, although he had no awareness or recollection of what thereafter occurred, including the acts of stabbing, until he was confronted by Mr Kelly.
5. I accept the evidence of Drs Nielssen and Pulman that, although the accused has a history of epilepsy, at the time of the stabbing, the accused was not experiencing an epileptic seizure. I also accept the evidence of Dr Allnutt that, although the accused appeared at the time of the stabbing to be unaware of what he was doing, there is insufficient evidence to establish that he was unaware of the nature and quality of his acts or their wrongfulness.
6. Accordingly, as to the state of the accused's awareness at the time, I am satisfied that the acts of stabbing were deliberate and, having regard to the length of the blade of the knife and the depth, number and location of the knife wounds, I am satisfied beyond reasonable doubt that the accused stabbed the deceased with the intention of killing him.
7. That being so, the onus then shifts to the accused to attempt to establish, on the balance of probabilities, that the partial defence of substantial impairment is made out.

Consideration of the partial defence of substantial impairment

1. For the purposes of s 23A(3) of the Act, I am satisfied that the accused was not intoxicated by alcohol or drugs at the time of the stabbing.
2. There are three elements for the defence to establish on the evidence, on the balance of probabilities. They are: 1. that at the time of the stabbing, the accused had an "abnormality of mind arising from an underlying condition", as defined at s 23A(8) of the Act; 2. that at the time of the stabbing, the abnormality of mind substantially impaired the accused's capacity to understand events, or to judge whether his actions were right or wrong or to control himself; and 3. that the impairment was so substantial as to warrant the accused's liability for murder being reduced to manslaughter.

Whether the diagnosed conditions qualify as an abnormality of mind

1. The first matter to be determined when the partial defence of substantial impairment is raised is whether, at the relevant time, the accused had an abnormality of mind arising from an underlying condition. The four forensic experts have produced four different primary diagnoses, although all concede a degree of overlap between some of those diagnoses.
2. In Quinn v R [2018] NSWCCA 297, at [48], Hoeben CJ at CL, White JA and Fagan J agreeing, adopted what was said in R v Byrne [1960] 2 QB 396 by Lord Parker CJ as to the meaning of "abnormality of mind" and its interrelationship with an impairment of an accused's capacity: "'Abnormality of mind,' which has to be contrasted with the time-honoured expression in the M'Naughten Rules 'defect of reason', means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts. Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence."
3. Hoeben CJ at CL continued, at [49]: "As set out in Byrne, Lord Parker CJ described the concept of control as the 'ability to exercise willpower to control physical acts in accordance with a rational judgment' formed about whether an action is right or wrong. Further, in Byrne Lord Parker CJ stated at 404: '… In a case where the abnormality of mind is one which affects the accused's self-control the step between 'he did not resist his impulse' and 'he could not resist his impulse' is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way.'"
4. An "underlying condition", as defined at s 23A(8) of the Act, means "a pre-existing mental or physiological condition, other than a condition of a transitory kind".
5. It is uncontroversial that an intellectual disability qualifies as an abnormality of mind arising from an underlying condition.
6. I accept the evidence of Dr Allnutt that the accused's "lifetime of behavioural problems", as itemised in the preliminary view of his report at [177] above, collectively constituted an intermittent explosive disorder, which is an abnormality of mind arising from an underlying condition.
7. As to whether FASD is an abnormality of mind arising from a mental condition as defined, I note Dr Pulman's evidence that FASD may be conducive to treatment, to some extent: "Q. In relation to brain damage caused by foetal alcohol spectrum disorder, is that reversible? A. Well there are arguments about whether you can, certainly if they get diagnosed with the physical features of foetal alcohol disorder, no. There will be a number of those, I think it's - you can see it clinically in their facial - the way the face is; the position of the ears, et cetera. And then there would be others that would argue with appropriate treatment you can overcome the deficits. There are many different schools of thought with developmental trauma and with foetal alcohol."
8. Although FASD may be capable of amelioration, it is not suggested that it is transitory in nature. I am satisfied that FASD is capable of being an abnormality of mind arising from an underlying condition. It is a widely-recognised permanent congenital mental condition.
9. As to whether a complex PTSD may qualify as an abnormality of mind arising from an underlying condition, I note Dr Pulman's evidence as to how it affects the physical development of the brain, as follows: "… There's no damage that shows up on the CT or the MRI. You can still have damage to the brain in terms of axons, which are stretched. If you think of it like an elastic band, they're stretched, they are damaged. But you can't see that on an MRI scan or a CT scan. There can be changes in the metabolism of the brain in terms of the uptake of glucose, the areas of brain that are functioning. If you look at a PET scan or a functional MRI, for example, if we take the situation of clinical depression and you do a functional MRI of the brain before somebody has been treated for depression, you can see that the uptake and the metabolic functioning within certain areas of the brain is quite different from your normal non-depressed individual. And then after a series of treatments, whether it's through therapeutic intervention or pharmacological approaches, and you reassess them, say, six months down the track, you can look at the brain and look at the metabolism and it's gone back to normal. So even though on a CT or an MRI you might not see any - there is no evidence of damage, there are changes in the brain. And particularly with children who grow up in a constant state of alert, they are worried about threats or dangers that are in their environment. What happens as the child's brain develops we have connections within your whole brain and what we call dendrites that come off the axons which go from one unit to another within the brain. And when children are exposed to such a high degree of anxiety, fear, the brain does not develop normally in the sense that different branches, or dendrites, connections with the brain fall off."
10. I am also satisfied that a complex PTSD may be an abnormality of mind arising from an underlying condition, for the purposes of s 23A of the Act.
11. The next step is to consider whether I am satisfied, on the balance of probabilities, that the accused had one or more of those qualifying conditions at the relevant time.
12. I am satisfied that the accused did not have an intellectual disability. I note the striking similarity in the results of the Weschler Intelligence Scale for preschool and primary school children and the adaptive behaviour assessment (Vineland Adaptive Behaviour Scale Assessment) that were administered to the accused by Dr Collier and Dr Singh when he was aged five, and the results from the WAIS-IV and ABAS-3 adaptive behaviour assessment that were administered by Dr Schafer when he was aged 20. In both sets of tests, his intellectual functioning was in the low average range and his adaptive behaviour was in the mild intellectual disability range.
13. In these circumstances, it is unsurprising to me that Dr Nielssen concluded that the accused has a mild intellectual disability. However, for the reasons expressed by Drs Schafer and Pulman as to how the accused's traumatic environment in his developmental years compromised his acquisition of adaptive skills, I consider that, consistently with the findings of the tests assessing the accused's intellectual functioning at ages 5 and 20, the accused does not have an intellectual disability. Rather, his intellectual functioning is in the low average range with significant impairments in his adaptive functioning, including language.
14. I am satisfied that the accused had, at the relevant time, an intermittent explosive disorder, as diagnosed by Dr Allnutt.
15. As to whether the accused has FASD, having regard to the evidence of Mr Bobak, the accused's paternal grandmother and the documentary material, I am satisfied on the basis of circumstantial evidence that the accused's mother was likely taking significant quantities of alcohol and prohibited drugs during her pregnancy with the accused. The evidence that Ms Krey had a significant alcohol and drug dependency before and after the pregnancy is corroborative of the documentary references to her taking alcohol and drugs during the pregnancy itself.
16. I note the conflict in the opinions of Drs Schafer and Pulman as to whether the accused satisfies the test for FASD that is set out in the Australian Guide to the diagnosis of FASD (updated February 2020), in particular, whether alternative diagnoses that might explain the accused's neurodevelopmental impairment have been excluded. However, for the purposes of this exercise, it is pertinent to note that both Drs Schafer and Pulman agree that the effects of maternal alcohol and complex PTSD are compounded. When taken to the passage in Dr Pulman's report that is reproduced as the first paragraph at [172] above, Dr Schafer said: "I think both of them are equally important and playing into each other and compound the effects together. So I don't think it's that relevant which is the primary diagnosis. I would say the foetal alcohol spectrum disorder would be a preceding diagnosis because the effects of it take place in utero; whereas childhood trauma would have been after he was born during his early years."
17. Later, Dr Schafer said: "But if you take the evidence in totality, I think it's very convincing for a diagnosis of FASD as well as childhood trauma and PTSD."
18. I am satisfied that the accused has FASD and a complex PTSD.
19. Accordingly, I am satisfied on the balance of probabilities that the accused had an abnormality of mind arising from an underlying condition, being FASD, a complex PTSD and an intermittent explosive disorder.
20. In evidence, Dr Pulman explained how the accused's complex PTSD could have prompted his gross overreaction to the deceased when he spoke to the accused: "It can prompt an overreaction to an event or a comment, or even a facial expression, or it's for whatever reason a perceived threat which can lead to an overreaction to - most of us say well, why did you overreact? That's just completely disproportionate to what's happened. But you do see that completely out of proportion reaction to things from severely traumatised children and then they can just go into a space for a couple of moments."
21. I am satisfied that the accused's abnormality of mind substantially impaired his capacity to control himself at the time of the stabbing.
22. In relation to the third limb of the partial defence, namely, whether the impairment was so substantial as to warrant the accused's liability for murder being reduced to manslaughter, I note there are factors that tend against making such a finding. I have found that the accused's intent was to kill the deceased, rather than to inflict grievous bodily harm. He walked to where the deceased was and could have chosen not to do so. The words spoken that triggered the attack were either innocuous or, if they were as he partly recollected them when questioned by police, did not convey any threat of violence. As well, the attack was sustained, constituting 12 separate blows with the knife.
23. The factors that tend in favour of a finding that the impairment was so substantial as to warrant the accused's liability for murder being reduced to manslaughter are the degree to which the abnormality of mind contributed to the motive in the accused's mind to kill the deceased, and how that impacted on his ability to resist that urge.
24. To those two issues, the "blacking out" of the accused, as claimed by him in his interview by police, is relevant, in that it suggests that he was to a significant degree deprived of the power to resist the irrational urge to kill the deceased. The observations of Mr Kelly and Mr Edwards to the effect that the accused appeared unaware of what he was doing are at least consistent with, if not corroborative, of the accused's claimed state of mind at that point.
25. The accused's behaviour immediately following the stabbing, that is, running to the neighbouring suburb to his grandfather's place, his demeanour when he arrived, and his words to his grandfather that "I think I've hurt someone", are also indicative of him having only a partial awareness of what he had done, as was the question he asked of Sergeant Anderton: "The person I stabbed, can you tell me anything about him?"
26. There were a combination of factors that culminated in the accused taking the deceased's life. I note the following features of the evidence that marked a deterioration in the accused's capacity to control himself in the weeks leading up to the stabbing.
27. I accept the observations in the documentary material of treating psychologists and the psychiatrist, to the effect that over the accused's childhood and adolescence, his medication had a calming influence on him, and when he did not take it, he became aggressive. I note Mr Bobak's evidence that when the accused ceased residing with him and went to live with his mother at Number 93, so that he no longer had the benefit of Mr Bobak's supervision, the accused stopped taking his medication. It is also apparent from the documentary material that, from the age of five, whenever the accused was in the care of his mother, his behaviour typically deteriorated.
28. Stabbing as a violent act had a direct connection to the violence the accused had endured as a toddler, as is apparent from the reference to him engaging in stabbing motions when aged four, and of knives having to be hidden from him at that age. The incident some weeks earlier, when the accused took a knife to his neck because he was unable to accompany AJ to the shops, demonstrated a marked deterioration in his capacity to control himself and was an instance of resorting to a nearby knife (on that occasion, a butter knife) to act out his frustration.
29. I accept what the accused said in his police interview, and what Ms Krey stated in her statement, to the effect that she and the accused frequently argued. I also accept her observation that the argument between her and the accused that preceded the stabbing was unprecedented in its aggressiveness and violence. As earlier noted, I accept the evidence that the accused had threatened to stab his mother moments before the attack on the deceased. In a terrible twist of fate, the deceased, who was only trying to assist members of his community, happened to be the person who became the recipient of the accused's uncontrolled behaviour, due to his abnormality of mind.
30. Considering the factors that weigh for and against the exercise of s 23A(1)(b) of the Act, I am satisfied on the balance of probabilities that, in all the circumstances, the impairment of the accused was so substantial that his liability for murder should be reduced to manslaughter.
31. Accordingly, I find the accused not guilty of murder but guilty of manslaughter.

Amendments 21 December 2020 - Minor typographical errors corrected 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: 21 December 2020