R v Lailna

The statutory provisions: the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Introduction and overview

1. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into force on 27 March 2021 and repealed the Mental Health (Forensic Provisions) Act 1990 (NSW).
2. The events giving rise to the trial of the accused occurred on 20 May 2020 - that is, prior to the commencement of the Act. Nevertheless, the Act applies to this trial (R v Tonga [2021] NSWSC 1064 at [6]-[10]; R v Siemek (No.1) [2021] NSWSC 1292 at [9]; R v Sands [2021] NSWSC 1325 at [5]), and it was common ground that it did so apply.
3. It is necessary to refer to some of the provisions of the Act - in particular, to explain the nature of this hearing.

An accused's fitness to be tried

1. Part 4 of the Act concerns an accused person's fitness to be tried. A 'question' of an accused's fitness to be tried for an offence can be raised by the court, the defendant or the prosecutor (s 39), and that question is to be determined on the balance of probabilities (s 38). Once raised, the procedure to be adopted is dealt with by Division 2 of Part 4 of the Act.
2. Division 2 of Part 4 makes provision for an enquiry into the accused's fitness, once that question has been raised (ss 40-42), the procedures to be adopted (ss 43-45) and what occurs if the accused is found fit to be tried (s 46), or not fit to be tried (ss 47-49).
3. In this case, a question of the accused's fitness to be tried was raised as an issue whilst the matter was in the Local Court, prior to committal for trial. Following committal, when the matter came before the Criminal List Judge in the Arraignments List, the issue of the accused's fitness to be tried was again raised.
4. On 13 September 2021, the matter was listed for an inquiry into the accused's fitness to stand trial before Hamill J. His Honour found, after conducting an inquiry, that the accused was "not fit to be tried at this stage": R v Lailna [2021] NSWSC 1205 at [23]. Having made that finding, Hamill J further found, under s 47(1)(a), that the accused "may become fit to be tried for the offence during the next 12 months": at [27].
5. In light of that finding, Hamill J made a number of orders (of the kind required by s 48(1) of the Act) - namely: 1. The accused is unfit to be tried pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). 2. The accused may become fit to be tried within the next 12 months pursuant to s 47(1)(a) of the Act. 3. The accused is referred to the Mental Health Tribunal pursuant to s 49(1) of the Act. 4. That the accused is remanded in custody pursuant to s 47(2)(d) of the Act. 5. I direct the Registrar to provide a copy of the exhibits, documents marked for identification and this judgment to the Mental Health Tribunal as soon as possible.
6. A consequence of the findings and orders of Hamill J is that the accused was considered to be a 'forensic patient' for the purposes of the Act. That is because he was a "person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place": s 72(1)(a). It will be noted that, by order 3, the accused was "referred" to the Mental Health Review Tribunal ('the Tribunal') pursuant to s 49(1). And, by order 4, the accused was remanded in custody, pursuant to s 47(2)(d).
7. Following the making of these orders, the accused was reviewed by the Tribunal. The Tribunal is required to carry out a review of a forensic patient "as soon as practicable after a court finds at an inquiry that a defendant is unfit to be tried for an offence and may become fit to be tried for an offence within 12 months…": s 78(b). On a review of a person who has been found unfit to be tried for an offence, "the Tribunal must determine whether the person has become fit to be tried for an offence": s 80(1).
8. On 4 November and 2 December 2021 and 21 April 2022, the Tribunal undertook reviews of the accused and, by reasons delivered on 12 May 2022, determined that the accused was fit to be tried. Nevertheless, as has been noted, the Crown and the accused have agreed that the proposed evidence in the proceedings establishes a defence of mental health impairment. It is necessary, therefore, to identify the statutory source of the power to enter a special verdict where the Crown and defendant agree on the existence of such an impairment. That power exists in s 31 of the Act.

Special verdict: s 31 of the Act

1. Section 31 of the Act confers upon the Court the power at any time to enter a special verdict of act proven but not criminally responsible. That section provides: 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established.
2. It is clear from the terms of s 31, that the power conferred upon the Court is conditioned upon satisfaction of each of the matters in sub-paragraphs (a)-(c). In the present case, the impairment said to exist - and to be in existence on 20 May 2020 - is a "mental health impairment". Specifically, a schizophrenic disorder.
3. In relation to the special verdict, and the power conferred by s 31, the following matters should also be noted. First, the hearing under s 31 is not a trial: R v Sands at [4]; R v Jackson [2021] NSWSC 1404 at [7]. Secondly, the procedure contemplated by s 31(c), has been described as an "evidentiary enquiry": R v Jackson at [7]. Thirdly, if the court is satisfied that the defence is established for the purposes of s 31(c), the Court is required to enter a special verdict of "act proven but not criminally responsible": R v Jackson at [8]. Fourthly, it has been suggested that, because a hearing under s 31 is not a trial, but an inquiry, strictly, there is no requirement to comply with the legal imperatives contained in s 133 of the Criminal Procedure Act 1986 (NSW); nevertheless, the Court is not relieved of a requirement to provide reasons, which include the findings, and consequences of those findings: R v Tonga at [98]-[100]; R v Siemek (No. 1) at [17]-[18]; R v Sands at [4].
4. Section 31(a) refers to an agreement that the evidence establishes, relevantly here, a "defence of mental health impairment". It is the case, and I find, that there is such agreement.
5. Section 31(b) requires the defendant to be represented by an Australian legal practitioner. The accused is so represented - by Counsel and by a solicitor.
6. The final requirement is for the Court to receive the "proposed evidence in the proceedings" - which the Crown and the accused agree establishes a defence of mental health impairment - in order to be "satisfied that the defence is so established": s 31(c). I have received the evidence (see [9], above), which I will address shortly, and thereafter discuss why I am satisfied the defence is established. Before doing so, I will set out the remaining statutory provisions that are relevant to the mental health impairment defence.

Mental health impairment

1. Part 3 of the Act concerns the defence of mental health impairment or cognitive impairment. The Act defines each concept. The relevant concept here is 'mental health impairment', which is defined by s 4. That section provides: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder.
2. Upon demonstration that the accused "has" a 'mental health impairment', consideration then needs to be given to the defence created by s 28 of the Act.

The defence of mental health impairment

1. Section 31(a) directs attention to the defence raised by the accused - viz., a "defence of mental health impairment or cognitive impairment". Here, as I have noted, the accused relies upon a defence of 'mental health impairment'.
2. Section 3(1) provides that phrase is as defined by s 28(1) of the Act, which relevantly is in these terms: 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment … that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment … that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment … that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions.
3. It should be noted that although s 28(2) refers to the question of whether a defendant had a mental health impairment being determined by the jury on the balance of probabilities, that reference "includes a reference to a judge in proceedings determined by a judge alone": s 6. Further, under the Act, an accused is presumed to have been mentally well at the time of the alleged offence, and until the contrary is proven on the balance of probabilities: s 28(3).
4. In R v Siemek (No. 1), Johnson J noted that the defence under s 28 has "two limbs" (at [84]), and operated as follows (at [85]-[87]): The first limb is that the Accused, at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s.28(1) MHCIFP Act. The second limb is that the relevant impairment had one or other of the effects referred to in s.28(1)(a) or (b). The presence of each limb is to be determined on the balance of probabilities (s.28(2)) and, until the contrary is proved, it is presumed that the Accused did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s.28(1): s.28(3) MHCIFP Act.
5. Before considering the "two limbs" in s 28, I will next cover the background facts, and the expert psychiatric evidence that addressed the two limbs.

The background facts

1. The background matters that follow are drawn from the Agreed Facts (Exhibit A), and they reflect my findings.
2. Kamaljeet Sidhu was born in India on 6 December 1992. At the time of her death, she was aged 27.
3. The accused was born on 3 January 1989. As at 20 May 2020, he was 31 years of age. He is now 34 years of age.
4. The accused and Ms Sidhu were married in India in April 2017.
5. Ms Sidhu was granted a student visa to study for a graduate diploma in nursing in 2018. At the time of her death, Ms Sidhu was working as a disability support worker on a casual basis.
6. The accused came to Australia with Ms Sidhu on a 'spousal visa'. They lived in a four bedroom townhouse in Quakers Hill. They shared the premises with others, including Ms Sidhu's brother, Jaspreet Singh.
7. On 27 April 2020 Ms Sidhu attended Quakers Hill Police Station. She requested police assistance. When approached by police, Ms Sidhu was observed to be distressed and crying. She advised that she had had a fight with the accused, and she was "very scared" that he would kill her. Ms Sidhu advised that that was the first occasion when physical violence had occurred and that it had arisen in consequence of a misunderstanding - the accused had thought that Ms Sidhu was having an extramarital affair. Ms Sidhu advised that her neck was hurt, and a police officer who attended upon her observed a small red mark on the right side of her neck. (Other evidence suggests that the accused tried to strangle her).
8. The accused then arrived at the police station, and began calling out to her in Punjabi. When spoken to by police, the accused denied any physical altercation. When formally interviewed by the police with the assistance of an interpreter, the accused again denied any physical altercation.
9. The police obtained a statement from Ms Sidhu, in which she partially recanted her earlier allegations. Later, the accused admitted in an ERISP that he had slapped Ms Sidhu on this occasion.
10. The police applied for, and obtained, a provisional apprehended domestic violence order, and served it upon the accused.
11. On 30 April 2020, the accused was admitted as an involuntary patient to Bungaribee House at Blacktown Hospital, where the presenting problem was noted as "psychosis". The hospital records noted that the accused self-presented with his wife due to paranoid symptoms for 15 days, mentioning that he felt his wife was cheating on him so that he was stressed all the time and thinking his wife was conspiring on getting him to be killed … He also mentioned that he had been using methamphetamine and morphine (Heroin). As a result he was admitted to this facility involuntarily.
12. The accused remained an inpatient until his release on 8 May 2020. When discharged, the principal diagnosis was expressed to be: "Substance induced psychotic disorder". The additional diagnoses were: acute polymorphic disorder with symptoms of schizophrenia; mental and behavioural disorders due to multiple drug use and use of psychoactive substances, psychotic disorder; and psychosis. The accused was referred for follow-up at Blacktown Community Mental Health.
13. On 15 May 2020, the accused attended Blacktown Police Station and advised police that he had a verbal argument with his brother-in-law, Jaspreet Singh. The argument occurred in relation to the accused filming Ms Sidhu and her brother on a Facebook live video.
14. Ms Sidhu was contacted by police, and she confirmed it was just a verbal argument, however she stated that the accused was worried he would be in trouble by reason of the ADVO.
15. On 19 May 2020 the accused attended Blacktown Hospital in the company of Ms Sidhu and Mr Singh. The accused's presenting complaint was of "chest pains". At the hospital, Ms Sidhu advised the medical staff that she was concerned about the accused's persisting paranoia. The clinical notes record: "feels his wife is recording his voice and cameras checking what he is doing".
16. The accused was discharged into the care of Ms Sidhu - that being recorded as the "least restrictive form of care". The acute mental health team was to follow-up the accused, and he was prescribed olanzapine.
17. I turn now to the events of 20 May 2020.
18. At the time that Ms Sidhu was killed, Ms Sidhu and the accused were the only ones at the Quakers Hill property. Two others had been present, until approximately 6 pm - when they left to go shopping.
19. Mr Singh arrived at the house shortly before 6:30 pm. Another housemate, Ms Parmar, arrived shortly after Mr Singh. Mr Singh entered the house, and walked up the staircase to the first floor.
20. The accused was on the first floor at the top of the stairs. He stated to Mr Singh: "Call the police, I murdered Kamal". Mr Singh looked past the accused, and saw his sister lying on the bedroom floor - face up and motionless. He saw blood on the floor. Mr Singh left the house and called '000', and advised the operator that the accused had killed his sister.
21. The other housemate walked up the stairs to her bedroom and entered it. After she did, the accused came out of his room and told her to call police. The housemate observed the accused with "red liquid" on his hands. She also observed "red liquid" on the floor. She later overheard Mr Singh call the police.
22. A number of police attended the scene. The police entered the property wearing body worn video recording equipment.
23. When inside, the police observed the accused on the first floor of the house, and that he was covered in blood and bleeding from his right hand. The accused was placed under arrest, cautioned and handcuffed.
24. When the police entered the bedroom, they observed Ms Sidhu lying on the floor surrounded by a large amount of blood. There was blood splattered on the bedroom walls and the vertical blinds. Ms Sidhu was observed to have a large laceration to her neck, and appeared to be deceased. The police also located a kitchen knife, with a blade approximately 15 cm in length, next to Ms Sidhu. It had a large amount of "red liquid" on the blade and handle.
25. Ambulance officers attended the scene, and advised that there was no medical intervention which could assist Ms Sidhu.
26. Following the accused's arrest and caution, the accused made admissions to the police which were recorded on the body worn video cameras operated by them. At that time the accused, who speaks Punjabi and Hindi, was being assisted by a Hindi speaking police officer.
27. The video has since been translated, and transcribed, by a NAATI accredited translator. The accused was asked by police: "what did you do?", and the accused replied: "Then this murder happened". The accused was then asked by police, how he did 'it', and the accused replied: "with a knife". The police asked the accused: "did you stab her with a knife?", to which the accused replied: "yes I did and tried calling the police as well but her phone wasn't connecting". The accused also told police where he stabbed the deceased: "on the neck".
28. A blood sample obtained from the accused, at 6:32 am on 21 May 2020, which was analysed in order to determine the presence of illicit substances, only detected benzodiazepine.
29. On 21 May 2020 the accused was released from Blacktown Hospital into the custody of police, and he was transported to Riverstone Police Station. During the course of an interview with police, with the assistance of a Punjabi interpreter, the accused made admissions to stabbing his wife and killing her. This included, when asked by police what he did, the accused replying: "what I did you've seen". He also stated that he was "forced to" kill Ms Sidhu. The police asked: "so when you cut her neck with a knife, did you think it would end her life?", to which the accused replied: "Yeah".
30. The autopsy report states the cause of death of Ms Sidhu to be: "Sharp force injuries to the body". There were significant "sharp force" injuries to the head and neck, as well as to the left and right upper limbs.

Consideration: s 31(c) of the Act

1. The Crown is required to prove the guilt of the accused beyond reasonable doubt for the offence charged - here, murder. The accused has the benefit of the presumption of innocence; he has no obligation to prove any matter or thing; and he is not required to give evidence - and no adverse inference may be drawn against him because he does not.
2. In this hearing, the Crown must prove the physical elements of the charge of murder, beyond reasonable doubt: that is, the Crown must prove beyond reasonable doubt that a voluntary act of the accused caused the death of Kamaljeet Sidhu.

The physical elements of the offence

1. Here, the accused does not dispute that it was his voluntary act (or series of them) that constituted the direct cause of the death of Kamaljeet Sidhu.
2. I am, separately, satisfied that it was. That conclusion in my view inevitably follows from the admissions made by the accused to Mr Singh when he arrived at the Quakers Hill property at around 6:30 pm on 20 May 2020 (as well as the observations made by Mr Singh at that time); the admissions made by the accused to the police at the scene - and what the police officers observed; the admissions made by the accused when interviewed by police on 21 May 2020 at Riverstone Police Station (including what is contained on the ERISP); the evidence of Mr Singh contained in his statement dated 20 May 2020; the evidence of Deeksha Parmar contained in her statement dated 21 May 2020; and the autopsy report dated 10 February 2021.
3. I am thus satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt. In those circumstances, therefore, the Court must consider the mental health impairment defence - without considering the question of proof of the mental element of murder: R v Tonga at [15]; R v Siemek (No. 1) at [16]. As earlier noted, this issue is to be determined on the balance of probabilities: s 28(2).

The mental health impairment defence

1. The Crown and the accused each qualified a consultant forensic psychiatrist in order to, inter alia, assess the accused's fitness to be tried, as well as to address the mental health impairment defence.

The expert psychiatric evidence

1. The Crown retained Dr Jeremy O'Dea, consultant forensic psychiatrist, and he prepared two reports - dated 3 March 2021 and 16 August 2022.
2. Dr O'Dea interviewed the accused on 28 January 2021. Dr O'Dea was also, prior to that time, briefed with a considerable amount of material relating to the accused, including his medical records and records relating to the events of 20 May 2020 (the brief of evidence and the police documents): report at [3].
3. Dr O'Dea expressed the opinion that the accused "has a history of a severe treatment resistant schizophrenia illness complicated by a history of Substance Use Disorder": report at [52]. (The substances used by the accused to contribute to the substance use disorder, according to Dr O'Dea, included "at least alcohol, cannabis and amphetamine abuse and/or dependence": report at [54]).
4. As to the accused's schizophrenic illness, Dr O'Dea provided the following description of it (at [53]): His schizophrenic illness has been characterised by paranoid delusions, including regarding his wife's fidelity and his concerns that there was a plot to defraud and kill him, and that he was under surveillance; auditory hallucinations ('voices'); significant mood disturbance, including depression, anger, and an incongruous, fatuous and blunted affect; suicidal behaviours; and disorganised thinking and behaviours. Whilst it is difficult to be clear on the precise timeline, it would appear that his schizophrenic illness was active from at least 2 weeks prior to his admission to Bungarribee House on 30 April 2020, and has remained active since that time, despite ongoing psychiatric treatment of his schizophrenic illness and relative abstinence from alcohol and illicit substance use since his incarceration following the alleged offence. (Underlining added)
5. Dr O'Dea considered that the accused's symptoms of his schizophrenic illness remained present when he interviewed the accused on 28 January 2021.
6. Dr O'Dea expressed the opinion that the accused, at that time of preparing his report, "would not currently be fit, from a psychiatric perspective, to be tried" (report at [59]).
7. Dr O'Dea thereafter went on to consider the availability of a 'mental illness defence', and on that expressed the following opinion (at [62]): On the basis of [the accused's] history of a severe treatment resistance schizophrenic illness, including the timeline with admission to Bungarribee House from 30 April 2020 to 8 May 2020, his progress following his discharge from Bungarribee House leading up to the alleged offence, his account of his actions in relation to the alleged offences, and his clinical progress following the alleged offence; it would seem reasonable to assume and conclude that [the accused] committed the actions in relation to the alleged offence in response to the paranoid delusions he experienced regarding his wife at the time, and in the context of his disordered effect and additional cognitive impairment at the time, including his problems with insight and judgment and behavioural control at the time.
8. Dr O'Dea accepted that "it could be argued" that at the time of committing the offence the accused was (at [64]) suffering from a defect of reason (related to his paranoid delusions and problems with insight and judgment); by virtue of a disease of the mind (that is a schizophrenic illness); such that, at least, he would not have known that his conduct in relation to the alleged offences was wrong.
9. In his report dated 16 August 2022, Dr O'Dea expressed the opinion that the accused's "active schizophrenic illness at the time of the alleged offence" constituted a mental health impairment. That is, in Dr O'Dea's opinion, the accused's schizophrenic illness - a psychotic disorder - would have satisfied the statutory requirements in s 4(1) of the Act: report at [15].
10. The accused qualified Dr Richard Furst, consultant forensic psychiatrist, and he prepared two reports - dated 25 November 2020 and 3 June 2022. Like Dr O'Dea, Dr Furst had been briefed with the accused's medical records, as well as the material relating to the events of 20 May 2020 (the brief of evidence and police documents).
11. Dr Furst considered the accused satisfied the criteria for the diagnosis of schizophrenia: report, page 7.
12. Dr Furst also considered, based upon the history provided by the accused and background material briefed to him, that the accused "allegedly [killed] his wife in response to delusional beliefs that he was about to be killed, and his beliefs that she was at the centre of this conspiracy to kill him": report, page 8. In Dr Furst's opinion, the accused "believes that his actions were justified and were necessary to defend himself, being insightless into his own mental illness and being unable to reason about the wrongfulness of his actions with a moderate degree of sense (sic) composure": report, page 8.
13. In his report dated 30 June 2022, Dr Furst expressed the following opinions (report, page 2): 1. The accused was suffering from "persistent delusions at the time … including beliefs that he was being poisoned, monitored, followed and that his wife and others were involved in a conspiracy to have him killed. His delusions were a product of his schizophrenic illness which is a psychotic disorder and a mental health impairment". 2. The accused's "ability/capacity to judge whether his actions were right or wrong, or to control himself, was substantially impaired by his mental health impairment".

Discussion

1. I am satisfied that the accused 'has' a mental health impairment (ss 4(1) and 4(2)(c)) - namely, a schizophrenic disorder. That impairment has resulted in a constellation of symptoms all of which satisfy s 4(1)(a)-(c) of the Act. By way of illustration, I refer in this respect to the diagnosis of the accused's schizophrenic illness, given by Dr O'Dea (which I accept) in his report dated 28 January 2021: see [75], above. I also note the opinion expressed by Dr O'Dea, in his report dated 16 August 2022, which was to the effect that the accused's schizophrenic illness satisfied the statutory requirements in s 4(1) of the Act: see [79], above. That diagnosis, and the opinion expressed that the terms of s 4 had been met, aligns with the opinions expressed by Dr Furst: Dr Furst also considered the accused's diagnosis to be schizophrenia and, like Dr O'Dea, expressed the opinion that the accused's presentation (at all relevant times) satisfied the criteria in s 4 of the Act. Those opinions, in my view, sit comfortably with the accused's presentation (and pattern of behaviour) in the period leading up to the killing. For example, when admitted to Bungaribee House on 30 April 2020, the accused's presenting problem was noted as "psychosis"; and, when the accused presented to Blacktown Hospital on 19 May 2020, it is clear that the accused's presentation included ongoing paranoia: see [49], above.
2. Turning to the "first limb", contained in s 28, I am satisfied, and find, at the time of carrying out the killing, that the accused had a mental health impairment. The evidence, to which reference has been made (notably, how the accused presented to Blacktown Hospital on 19 May 2020 and, following the killing when taken to that hospital, how he presented on that occasion) is significantly demonstrative of the accused suffering from the mental health impairment at the time he committed the act of killing Ms Sidhu.
3. The expert psychiatric evidence, which I accept, is to the same effect. Each expert considered this to be so. Dr O'Dea said that a consequence of the accused's schizophrenic illness was that he would have "at the time of the alleged offence, experienced at least an ongoing disturbance of thought, mood, volition and perception; and the disturbance would be regarded as significant for clinical diagnostic purposes, and the disturbance would have impaired his emotional well-being, judgment or behaviour, at the time of the alleged offence": report dated 16 August 2022 at [16]. Dr Furst's opinion was concisely expressed: the accused "was suffering from persistent delusions at the time of the alleged" killing, and that those "delusions were a product of his schizophrenic illness, which is a psychotic disorder and a mental health impairment…" under the Act.
4. As the Crown and accused submitted, although the Court is not bound to accept expert evidence (including when directed to an ultimate issue), there is no reason why I should not do so in this case. I agree. That is particularly where, as here, I am separately satisfied of the correctness of the opinions and, furthermore, each expert has clearly set out the basis for the opinions that they have expressed.
5. I am also satisfied, and find, in relation to the "second limb", contained in s 28, that the mental health impairment had the effect that the accused did not know that the act was wrong (s 28(1)(b)). That is because it is clear, in the lead up to the killing, that the accused was still suffering the effects of his mental health impairment and, when assessed immediately following the killing at Blacktown Hospital, the accused was diagnosed with "psychosis", with the attending doctor noting that the accused was then psychotic, and in need of inpatient psychiatric treatment.
6. Importantly, the expert psychiatric evidence, which I accept, establishes that the mental health impairment had the effects referred to. Dr O'Dea's opinion was that the evidence was capable of supporting, on balance, a finding that the accused "was suffering from a mental health impairment that had the effect that he would not have known that his conduct in relation to the alleged offence was wrong": report dated 16 August 2022, at [18]. That opinion is directed to, and I accept satisfies, s 28(1)(b).
7. Dr Furst's opinion was that the accused was suffering from persistent delusions at the time of the killing and that the accused killed his wife "in response to delusional beliefs", but that the accused "did not know that the alleged act of killing his wife was wrong": report dated 30 June 2022, page 2. That opinion is directed to, and I accept satisfies, s 28(1)(b).

Conclusion and verdict

1. If a special verdict of act proved but not criminally responsible is returned, the effect is set out in s 33 of the Act: 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders - (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release.
2. The Crown and the accused are in agreement as to the orders that should be made and, having considered them, I am satisfied they should be.

Orders

1. I am satisfied that the defence of mental health impairment is established. In relation to the offence of murder charged against the accused by the indictment dated 1 July 2021, the special verdict will be entered on that indictment; namely: act proven but not criminally responsible.
2. For the above reasons, I make the following orders: 1. A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely that the act is proven but the accused is not criminally responsible. 2. That pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Baltej Singh Lailna is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law. 3. That the Registrar notify the Minister for Health of these orders within 7 days. 4. That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. 5. That the Registrar provide the Mental Health Review Tribunal with a copy of the judgment, orders and exhibits within 7 days. 6. That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. 7. Direct that a copy of the victim impact statement of Mr Jaspreet Singh be provided to the Mental Health Review Tribunal pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) within 7 days. 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: 07 February 2023