The trial
3 The appellant was represented by Ms D Yehia of counsel. She entered a plea on behalf of the appellant that he was not guilty by reason of mental illness. The plea admitted the objective elements of the offence as charged.
4 The appellant had signed an election under s132(1) of the Criminal Procedure Act 1986, electing to be tried by a judge alone. Other formal requirements were fulfilled. The trial proceeded before Kinchington DCJ without a jury.
5 The Crown case consisted of the tender of the Crown brief and the written election to be tried by judge alone. The brief consisted of witness statements and a report by Dr J F O'Dea, forensic psychiatrist, dated 15 June 2001, following an interview with the appellant on 12 June 2001 at the Silverwater Correctional Complex. The report was prepared at the request of the Director of Public Prosecutions. According to Dr O'Dea, the appellant told him that, on the occasion of the offence, the appellant was hearing voices which told him to take the money because it belonged to him, that he did not believe he had done anything wrong, and that he believed it was reasonable for people to take money from each other at automatic teller machines.
6 In Dr O'Dea's opinion, the appellant was suffering from a severe psychiatric illness, best understood as severe chronic schizophrenic illness, which was characterised by auditory hallucinations, problems with thinking, fatuous affect, disorganised and aggressive behaviour, problems with information processing and poor judgment. Dr O'Dea was doubtful about fitness to be tried which he said might be clarified by his legal representatives.
7 Dr O'Dea also said that the appellant might satisfy the criteria for the mental illness defence. He said it was reasonable to assume that, at the time, the appellant was suffering from significant problems with his thinking and behaviour. It was reasonable to accept that he might not have been able to control his actions or might not have understood that what he was doing in the context of the alleged offence was wrong.
8 The case on behalf of the appellant consisted of a report by Dr O Neilson, forensic psychiatrist, dated 9 May 2001. Dr Neilson had been retained on behalf of the appellant by Sydney Regional Aboriginal Corporation Legal Service. He had interviewed the appellant at the Metropolitan Reception Remand Centre on 4 May 2001. The appellant's account of the circumstances of the offence as given to Dr Neilson was materially identical with that given to Dr O'Dea. According to Dr Neilson, the appellant told him that voices had told him that it was his money and that he should go and get it, and that the appellant thought, at the time, that the person from whom the money was taken was robbing him.
9 In Dr Neilson's opinion, the appellant was suffering from a severe and disabling mental illness, at the time of the offence charged, characterised by perceptual disturbances in the form of auditory hallucinations, disorganised and illogical thinking and persecutory delusional beliefs. The condition was consistent with chronic schizophrenia.
10 In Dr Neilson's opinion, as expressed in the report, the appellant was fit for trial although, he added, the appellant's counsel might be in a better position to decide that according to the quality of instructions received. At the time of interview, the appellant seemed to Dr Neilson to be able to provide adequate instructions and seemed able to follow the proceedings.
11 It was Dr Neilson's opinion that the appellant had the defence of mental illness available to him on the ground that, at the time of the offence charged, he was affected by the delusional belief that the money he took was his and that what he was doing was not morally or legally wrong. He was, in Dr Neilson's opinion, unable to reason with any measure of calmness at the time of the offence, partly because of moderate intoxication, but mainly because of the illogical thinking and emotional arousal caused by acute mental illness.