R v Morgan

[2023] NSWDC 253

District Court of NSW|2023-07-11

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-07-11

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

Background

The defendant is charged on indictment of multiple offences, all allegedly committed on 11 June 2021 as follows: Charge Description Offence provision 1 At Chatswood in the State of New South Wales did steal certain property, namely, one blue coloured Ralph Lauren cap and one dark-coloured "Ellesse" brand jacket, the property of Accent Lifestyle Pty Ltd trading as Glue Store Crimes Act 1900 (NSW), s 117 2 At Chatswood in the State of New South Wales, did threaten to use an offensive weapon with intent to prevent the lawful apprehension of himself Crimes Act 1900 (NSW), s 33B(1)(a) 3 At Chatswood in the State of New South Wales, did threaten to use an offensive weapon with intent to prevent the lawful apprehension of himself Crimes Act 1900 (NSW), s 33B(1)(a) 4 At Manly in the State of New South Wales, did wound Hugo Fraser Stegmann, with intent to cause grievous bodily harm Crimes Act 1900 (NSW), s 33(1)(a) 5 At Narraweena in the State of New South Wales, did intimidate Adam Yuille with the intention of causing the said Adam Yuille to fear physical harm Crimes (Domestic and Personal Violence) Act 2007 (NSW), S 13(1) 6 At Narraweena in the State of New South Wales, did intentionally damage the front door of 12/66 Warringah Rd, Narraweena, the property of Adam Yuille Crimes Act 1900 (NSW), s 195(1)(a) 7 At Narraweena in the State of New South Wales, did assault Paul Rutkowski, a police officer acting in the execution of his duty, and by the assault did occasion actual bodily harm Crimes Act 1900 (NSW), s 60(2) 8 At Narraweena in the State of New South Wales, did wound Max Moon with intent to murder the said Max Moon Crimes Act 1900 (NSW), s 27 9 (alt to 8) At Narraweena in the State of New South Wales, did wound Max Moon with intent to prevent the lawful apprehension of himself Crimes Act 1900 (NSW), 33(2)(a) 10 (alt to 8) At Narraweena in the State of New South Wales, did wound Max Moon, a police officer acting in the execution of his duty, and was reckless as to causing actual bodily harm to that officer Crimes Act 1900 (NSW), s 60(3)

[24]

General

Ms Gwen Ngalob met the defendant, through the Tinder app in March 2018. She physically met him in June 2018 and commenced dating him. She was aware of the defendant's mental health issues. She initially broke up with him in March 2021 after her concerns about his ice addiction and his consequential erratic and delusional behaviour. After getting back with him for a brief time, she broke up with him again around 21 May 2021.
Police obtained a witness statement from her on the date of the alleged offending. She gave an account of what occurred between the defendant and her on that day after he arrived at her place in Parramatta at about 7am. After the defendant entered her place - she had not let him in and it was unclear whether the door to her premises was locked - he barricaded the unit with a couch.
Relevantly (for the purposes of the Crown establishing the criminal acts), Ms Ngalob stated to police what the defendant was wearing: a green long (knee length) coat, black jumper, black pants and white runners.
She stated that she saw him holding a foldable knife, which she described as a utility knife, with a blade 3 inches long and which also functioned as a screwdriver, plier and scissors. She stated that he was carrying a (green) Woolworths bag.
She stated that he had told her that he was going to go to Chatswood, with a friend, Chris. She stated that she was afraid of the defendant and had asked him to leave her unit. She believed he was acting under the influence of drugs and was extremely paranoid. She stated that he left her place at around 10:00am, but he returned 5 minutes later. He started yelling to her outside her balcony. He told her to get his knife for him. She stated that she gave it to him over the balcony.
This background was relevant to all charges in relation to identifying the defendant (his clothing and carrying the green Woolworths bag), his unstable behaviour, and, most pertinently, the description of the knife in the defendant's possession.

[27]

Charge 4

The evidence for the act for this charge includes evidence primarily from the complainant, Hugo Stegmann and other documents. There was also expert evidence. The evidence from Mr Stegmann is in a variety of forms, including a triple 000 call (with police and ambulance) and a recorded interview with police on the date of the incident. Witness statements were also obtained from two other persons in the vicinity of the incident.
Mr Stegmann reported being stabbed with a knife at the Manly Lawns Tennis Club, which is on the corner of Raglan and Belgrave Street in Manly. He had been playing tennis and had finished around 3:30pm and after finishing at the club house, he was waiting for an uber car to collect and take him home. He noted that the assailant appeared to be on drugs as he was shouting and guessed that he was homeless. He gave a description to the ambulance and police.
Mr Stegmann gave an account that the assailant was coming down Raglan street screaming and he looked at the assailant but the assailant told him to look away. Mr Stegmann stood his ground however and the assailant interpreted this as an invitation to fight. The assailant indicated that he had a knife and Mr Stegmann indicated that he was proposing to call the police with his mobile phone. The defendant tried to wrestle that phone from him and stabbed him in the upper left arm, around his shoulder.
In his police interview, Mr Stegmann gave a physical description of the assailant matching the Defendant.
Dr Sam Chia, an orthopaedic surgeon, opined that Mr Stegmann sustained a 5cm laceration to the left mid upper arm consistent with a knife wound.
The Crown also relies upon colour photographs of the laceration and blood emanating from Mr Stegmann's upper arm or left shoulder.
It appears from a record of interview that the defendant agreed to participate in (on 14 June 2021) that the defendant admitted stabbing the 'guy' from 'across the street'.
I am satisfied beyond reasonable doubt that the Crown has made out the act of wounding Mr Stegmann.

[28]

Charges 5 & 6

The Crown relies upon the evidence of the complainant, Adam Yuille, who was 58 years of age at the time, in respect to both of these charges. That evidence emerged in various forms: a 000 call to police; a body worn video interview (with Constable Joshua Lynch) and later a recorded police interview with officers Morris and Meredith at Manly Police Station.
In the 000 call, Mr Yuille reported that a man, whose name he identified as the defendant, had tried to kick down the front door of his unit in Warringah Road, Narraweena. Mr Yuille knew the defendant and indicated his understanding that the defendant was schizophrenic. He also reported his awareness of the defendant having a knife in his possession. Mr Yuille stated that he did not want the defendant to come into his premises and, in particular, reported that the defendant had said that he was "trying to bloody hurt me" and that he wanted to "stab me." He told the 000 operator that he was "shaking".
In his body cam interview with Constable Lynch, Mr Yuille provided further detail. He told the officer that the defendant had come to his place and bashed on the door, saying that he wanted to talk to Mr Yuille and that if he were not let in, he would stab or bash him. He identified the defendant as a friend who had rented a room.
In his recorded statement to police at Manly Police station, Mr Yuille indicated that he had previously leased property to the defendant, in 2014. He recalled that the defendant started to take ice and after this, he sought the assistance of authorities to eject the defendant. He understood that the defendant was hospitalised for 2 years. In 2020, he caught up with the defendant. By this time, it appeared that the defendant was working, had a girlfriend and even a car. It appears that the defendant tracked down his address. Mr Yuille mentioned having had an uneventful dinner with the defendant, when he appeared 'normal,' and had not seen him again until the date of the incident.
Earlier in the day, Mr Yuille received a phone message from the defendant, inviting him over to where the defendant was living (at Carlingford), but Mr Yuille did not answer him. So, the defendant showed up to his place (at about 5:30pm), effectively demanding to be let in and swearing. Moreover, he stated that the defendant started scratching his front door. He heard him tell Mr Yuille that he would kill him if Mr Yuille did not let him in (and that he had just stabbed someone else - a reference to Mr Stegmann). It was this which led Mr Yuille to call the operator.
For the purposes of count 5, I am satisfied beyond reasonable doubt that the Crown has proven the act for this charge, being that, by his conduct, the Defendant caused a reasonable apprehension in Mr Yuille of injury to his person or violence to his person.
For the purposes of count 6, I am satisfied beyond reasonable doubt that the Crown has proven the defendant's act for this charge, that by his scratching of the front door to Mr Yuille's property with his knife, the defendant damaged the property (the extent of damage being immaterial).

[29]

Charges 7-10 (incl)

All of these charges relate to the same incident. The complainant for charge 7 is Constable Paul Rutkowski. For the balance of the counts, the complainant was Constable Max Moon.
For these charges, the Crown relied, materially upon body worn videos of the two police officers referred to (and also a separate video of an officer who later arrived on the scene, Constable Lakeman), and witness statements of the two officers and an expert certificate from Dr Watson.
In terms of sequencing, the incident giving rise to these charges followed from Mr Yuille's report to police. Indeed, Mr Yuille told police in his recorded interview that he could see through the keyhole of his front door that the defendant held the fire extinguisher above his head and thought he was going to use it to strike his door. Instead, it became deployed against the two police officers.
Constables Rutkowski and Moon had been involved in the police responses to the reports that they had received of the armed robbery in Chatswood, the stabbing at Manly Lawn Tennis club and the intimidation of Mr Yuille. They inferred that the perpetrator may have been involved in all of these incidents. They apprehended that he would have a knife.
They arrived at the apartment building in Warringah Road, Narraweena at about 5:20pm. After approaching a first apartment block and not finding their suspect, they approached another another block and both heard a male screaming and banging a door. They sensed that this was their suspect. Both police officers walked up the stairs to the second level of the apartment building when an object was thrown at Constable Moon, when he was walking up the stairs. Constable Moon stated that it struck him in the back of his head and its impact was such as to cause him to fall over onto the stairs on to his front. Constable Moon described seeing the Defendant with the fire extinguisher, with the nozzle aimed at him and pulling the safety pin out of it. Constable Moon discharged his taser, but became quickly engulfed in the release from the fire extinguisher. Out of the smoke, he saw the defendant moving quickly towards him.
Constable Moon stated that he saw the defendant's righthand swing towards him. Later, when viewing the body worn footage, he observed a metallic object in the defendant's right hand striking him on his left hand.
The defendant and Constable Moon wrestled with each other and the officer's Taser had discharged. The defendant was holding on to him. Constable Moon tried to discharge his Taser multiple times but this was ineffective. Constable Rutkowski heard Constable Moon grunting. He saw blood coming from Constable Moon's head. Constable Rutkowski discharged his firearm and struck the defendant. Constable Moon handcuffed the defendant. A knife was located on the ground floor (and was later photographed, in situ).
I have viewed the body worn evidence of both officers. It is patently clear that the defendant did release the extinguisher in the direction of Constable Moon, who was upstairs, which emitted smoke and fire retardant struck both police officers. The body worn evidence also showed blood seeping from Constable Moon's left hand.
Constable Moon was later treated at Northern Beaches Hospital for two lacerations to his head, one on the rear left and one on the rear right, for which he received staples. Surgery was performed on his left hand for a laceration and bone fracture. The police officer attributed the laceration to the rear right of his head to the object thrown at him and attributed to the laceration to his left hand to being struck, he thought be a knife, by the defendant. He attributed the laceration to the left side of the back of his head when he was engaged in the wrestle with the defendant.
Constable Lakeman, who arrived on the scene later, observed blood on the knife.
For charge 7, I am satisfied, firstly, of the act of his assaulting Constable Rutkowski, constituted by his applying force through discharging the fire extinguisher in the direction of Constable Rutkowski (and Constable Moon). The constable complained that his vision of the room was obscured by the fire retardant smoke. That complaint is substantiated when viewing the body worn video.
Secondly, I am satisfied beyond reasonable doubt of the other physical elements to the offence, being that: the circumstance that the victim was a police officer acting in the execution of their duty and that the result of the act of assault being that Constable Rutkowski suffered (at least) a level of discomfort, through his breathing in the fire retardant and the physical struggle he experienced with the defendant, so as to constitute actual bodily harm.
For charge 8 (and the alternative charges to charge 8, being charges 9 and 10 respectively), I am satisfied beyond reasonable doubt that the defendant committed the act of wounding Constable Moon with his knife, manifested by lacerations to the back of the officer's head and his left hand.
Also for alternative charge 10, I am satisfied beyond reasonable doubt of the remaining physical elements for that alternative charge, being: the circumstance that that Constable Moon was acting in the execution of duty and the defendant's act caused Constable Moon to suffer actual bodily harm, manifested in a fractured finger.
In the result, the Crown has proven all of the acts (and the other physical elements) constituting all of the charges.

[30]

The Defence

The Crown and Counsel for the defendant jointly submitted that the Court should find that the acts constituting each of the charges are proven but that the defendant is not criminally responsible, under s 59(1)(b) of the Act. To accede to that joint application, the Court must be satisfied that the requirements in s 28(1) and (2) of the Act are met [8] .
For the purposes of s 28, the parties jointly submit that at the time of carrying out the acts constituting the offences, on 11 June 2021: 1. on the balance of probabilities, the defendant had a 'mental health impairment;' and 2. that mental health impairment had the effect that the defendant did not know that the acts were wrong (that is, the defendant could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, was wrong).
'Mental health impairment' is defined in s 4(1) of the Act. It means that the defendant: 1. has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and 2. the disturbance would be regarded as significant for clinical diagnostic purposes, and 3. the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
By way of further clarification, s 4(2) of the Act provides that: "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."
By s 31 of the Act, 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 - 1. the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and 2. the defendant is represented by an Australian legal practitioner, and 3. the court, after considering that evidence, is satisfied that the defence is so established.
I interpose to find that requirements (a) and (b) in s 31 are, for the reasons already indicated, plainly met.
The real issue for me to decide is requirement (c), that is whether I am satisfied that the defence of mental health impairment is established.

[31]

Lay and documentary evidence

Some other evidentiary material, which was not necessary to refer to earlier in these reasons on the subject of proof of the acts, was in evidence to support the aspect of mental health impairment.
The defendant's ex-partner, Ms Ngalob, gave evidence of incidents occurring within her unit on the morning of 11 June 2021. Earlier I referred to her statement about the defendant barricading her unit. She also stated (amongst other things) that the defendant had received messages on WhatsApp from the 'Illuminati' instructing him to film her to say that she would not talk to the police and 'it' wanted him to pay $1,000 for the defendant to 'have immunity'. She observed him burning candles and slicing the right palm of his hand as a blood ritual.
Constable Craig Byrne obtained text messages exchanged between the defendant and Ms Ngalob. At 5:20pm on 11 June 2021, the defendant sent a text message to Ms Ngalob which read: "Adam (Yuille) won't let me in .. If cops come here it's on .. Like on on .. To the death."
In what appeared to be another text message to Ms Ngalob, the defendant made the following statements: "Lol gwen I'm on ASIOS watch list as a satanic ecological terrorist …. I get traced followed and watched everywhere I go I can't get on the bus without being followed I man shoot on sight no questions asked They read my mind more than anyone else's in Australia Not coz I'm the most hektik criminal But coz I'm a danger to the country and it's systematic Machine"
In his witness statement, Constable Byrne referred to Ms Ngalob informing him that on 7 June 2021, four days before the events in question, he had woken her up and requested band aids for a cut on his hand and that the defendant had told her that he had completed a 'blood oath' for the 'Illuminati'. On 11 June, at the defendant's request, she had also cut her hand. Constable Byrne obtained video footage of this particular act of self-harm.
There was evidence, also, of a text between the defendant and an unknown addressee, in which the defendant communicates with 'the Illuminati.' Interspersed with messages from 'the Illuminati' the texts record the defendant stating (amongst other things): "Hi supreme lord, I'm interested in joining. I am a recording artist. I'm not big on pooling money but I am the (Inquisition) … I'm nearly 30 mate. There's a lot you could learn about and from me. I ain't your average cat mate…… I wanna join the Illuminati basically because I am a fully awakened 4d Lightworker at least my soul is 4d not much for others to say and I wanna help save the world …. I know of your global power and I want to help … Any my joining purpose is I want to make a difference to this world and to do so I need to be recognised for who and what I am all I have done.. I have been falsely diagnosed with an illness. Saying I have a chemical imbalance that causes my illness when in fact I am not ill. I am just not like other people. The esp I hear is from the other realms and outer reach of space. Of this I am sure. Nor mortal man can stop me."
In relation to the incident in Chatswood, Alec Henderson made behavioural observations about the defendant appearing 'shakey … affected by drugs because his face was really aggressive.'
In relation to the incident at Manly, behavioural observations of the defendant, as he was being driven on a bus, were made by Cyrus Tualima and his younger brother, James Tualima and Sean Keown. Both of them referred to the defendant listening to music on his phone and screaming about kids (hearing the defendant saying "fuck the kids"). James described him as appearing angry and scary. Sean Keown recalled the defendant talking 'some weird shit,' including 'fuck the kids.'
Before he was stabbed Mr Stegmann alluded to the defendant screaming loud things, including obscenities and threatening statements near Manly Oval. Mr Paul Haynes and Ms Emily Tonkin also gave statements referring to the defendant. Mr Haynes recalled him swearing a lot. Ms Tonkin recalled him appearing vey agitated and yelling.
Mr Yuille described the defendant as appearing 'psychotic.'
A video recording of the defendant was in evidence, (taken by Constable Moss) whilst the defendant was being transported by ambulance to a hospital. I recognise that by this stage the defendant had been shot. Nevertheless, the defendant made statements to the paramedics that were audible and which were consistent with delusional and disordered thought processes otherwise evidenced on that day.

R v Morgan

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Judgment (39 paragraphs)

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