R v Osmand

General legal principles

1. Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of this case, would usually be given to a jury.
2. I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437 at 466.
3. The starting point, and fundamental rule, as in any criminal trial, is that the accused is presumed to be innocent. It is relevant to record, given his plea, that he is also presumed to be sane. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.
4. As I have already indicated there is no issue that the accused suffered from a mental illness at the time he killed Mr Hodges. On all of the evidence before me including the evidence of two eminent and experienced forensic psychiatrists, the accused had first been diagnosed with that illness at about the age of 18 years and has received treatment for it more or less ever since. I have received the reports of Professor David Greenberg on behalf of the Crown (Exhibit A; Tabs 42 to 44) and Dr Olav Nielssen on behalf of the defence (Exhibit A; Tabs 39 to 41). In substance they arrive at the same diagnosis. Professor Greenberg expresses the diagnosis as one of schizophrenic disorder. Dr Nielssen says essentially the same thing, as I understand it, but in terms of "chronic, partly treatment resistant schizophrenia". There is no difference in substance between the experts.
5. The mental illness defence is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW) ("Forensic Provisions Act"). Section 38 provides for what is referred to as a "special verdict" if the accused person is not guilty by reason of mental illness. This is a third category of available verdict in addition to verdicts of "guilty" or "not guilty". It is important to understand that the legal consequences which follow a special verdict "are quite different from those which follow a plain verdict of not guilty on the ground that [the accused] did not do the things charged": The King v Porter (1933) 55 CLR 182; [1933] HCA 1 ("Porter") at 185. In the event I return a special verdict, subject to the provisions of the Forensic Provisions Act, the accused will not be "completely free" to re-enter the community.
6. If I return a special verdict, I am empowered to order that the accused be detained "in such place and in such manner" as I think fit "until released by due process of law": s 39 Forensic Provisions Act. It is important to understand that I am not authorised to release the accused into the community unless I am satisfied that his safety and the safety of any member of the public will not be seriously endangered by his release: s 39 Forensic provisions Act. A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal, which will review his case periodically and make orders for his continued detention, care and appropriate treatment. The Tribunal may not release the accused unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The Tribunal will be bound to review the accused's case, at least every six months. It is composed of a President who is a judge or former judge or a person is qualified to be a judge. The second member is either a psychiatrist or psychologist. And the third member is a person drawn from the community with appropriate qualifications and experience. Importantly, while he is under its supervision, the Tribunal may make orders for the accused's continued detention, care or treatment in a hospital or prison.
7. Section 38A Forensic Provisions Act empowers me to delay final orders after the entry of a special verdict to enable new and independent evidence to be obtained assessing whether the accused's release is likely to seriously endanger his safety or the safety of any member of the public, a matter to which I will return.
8. I emphasise that the return of a special verdict will not mean that the accused has not perpetrated what is the greatest wrong that may be committed according to the ordinary standards of reasonable people. Rather the law will not attribute criminal responsibility to him for killing his friend Mr Hodges by reason only of his mental illness.
9. Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility, as Dixon J (as the Chief Justice then was) pointed out as long ago as 1933 (in Porter at 187): (The criminal law) attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view, or other departments of the law have in view, in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like.
10. As I say, the applicable civil standard of proof of is less exacting than the normal criminal standard, but the necessary elements of the defence are not easily satisfied. The legal requirements of the defence have been established since 1843: R v M'Naghten (1843) 8 ER 718 ("M'Naghten") in the following terms: … to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong. It is necessary for me to focus on that short period of time during which the accused attacked and killed Mr Hodges. Even so, past and subsequent events may cast light on this.
11. There is no issue in terms of the M'Naghten Rules that "the accused was labouring under a defect of reason from disease of the mind". I have already said that the psychiatrists agree on the diagnosis. Working through the elements of the defence, the experts agree, and in my view the lay evidence supports their conclusion that at the time the accused stabbed and killed Mr Hodges he suffered from a disease of the mind, namely his schizophrenia. For reasons which I will briefly enlarge upon below, the experts are also satisfied that this disease of the mind led to a defect of reason on the part of the accused because in Dr Nielssen's term, his "delusional beliefs … led him to believe that he had to kill Mr Hodges in order to save Armidale from being blown up". Dr Nielssen concluded that he had no capacity "to recognise that his experiences at that time were due to an acute exacerbation of [his] mental illness" (Tab 39; page 9). Professor Greenberg's opinion was to the same effect. He concluded that at the time of the offence the accused was labouring under a defect of reason caused by the disease of the mind "because he was acutely psychotic with symptoms of auditory hallucinations (voices) and paranoid delusions". Professor Greenberg was prepared to accept that the accused felt compelled to stab Mr Hodges on the irrational basis (due to his psychotic state) that was necessary to save the people of Armidale from certain death at the hands of aliens (Tab 42; page 23).
12. Both experts are also of the view that the accused did know the nature and quality of the act he was doing. Dr Nielssen said (Tab 39; page 9): He appears to have been aware of the physical nature and quality of his act, in the sense his apparently purposeful attack [on] Mr Hodges was in response to a delusional belief arising from hallucinated voices. Professor Greenberg is of the same opinion (Tab 42; page 23) because by his own account the accused was compelled to stab Mr Hodges in the deluded belief, which is part and parcel of his psychotic state, that it was necessary to kill Mr Hodges to save others.
13. Thus, the only issue for me to decide is whether when he stabbed Mr Hodges the accused did not know what he was doing was wrong.
14. Dixon J described the issue in these terms (Porter v R at 189 - 190): The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong … What is meant by wrong is wrong having regard to the everyday standards of reasonable people. And Button J (in Carter v R [2019] NSWCCA 11 at [300]) has recently explained: The defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts.
15. Dr Nielssen picks up the language of Dixon J in expressing this opinion (Tab 39; page 9): "in his acutely psychotic state [the accused] was unable to reason with any degree of sense or composure about the nature of his beliefs or the alternative causes of action that might have been open to him." Although the accused acted to save others and not himself, Dr Nielssen says, "altruistic homicides … are not uncommon and are typically … in response to the content of hallucinated voices."
16. Professor Greenberg was of the view that the accused "on some level knew that the act was legally wrong, but he did not know it was morally wrong at the time of the alleged offence." In expressing this conclusion, Professor Greenberg refers to the accused becoming guarded in what he was prepared to say about the matter after receiving legal advice and also to him, while under the care of Justice Health staff, expressing uncertainty about whether he should talk about the matter because of the legal implications, as indications that he knew his actions were against the law. However, the Professor, like Dr Nielssen, regards this as a case of altruistic killing. In Professor Greenberg's assessment, the accused felt morally justified in his actions because he was saving others from a catastrophic or cataclysmic event.
17. This consideration, that is that the accused may have appreciated the illegality of his actions, but not their moral quality raises a requirement for particular care in the decision making process. Although the distinction between legal and moral wrong is familiar enough to the criminal law: R v Pratt [2009] NSWSC 1108 at [35], R.A. Hulme J.
18. In R v Rodrigues [2010] NSWSC 198 ("Rodrigues") Johnson J summarised the effect of the Australian authorities in the following way at [33]: A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing. (Citations omitted). Wrong in this context is concerned with what is morally wrong and the test is whether the accused could appreciate that his act was wrong according to the ordinary standards adopted by reasonable people; not whether he was capable of understanding his act was contrary to law: Stapleton v R (1952) 86 CLR 358 ("Stapleton") at 375.
19. There are some statements in Stapleton, however, which suggest to me, at the very least, that in cases where the accused is said to know his act was contrary to law, but was unable to distinguish right from wrong morally the expert evidence should be carefully scrutinised before satisfaction is reached even on the civil standard that the defence has been made out. At ([370] - [371]) the Court said: The critical thing in the traditional test was capacity to distinguish right and wrong that is of course in reference to the act committed. In cases of murder the difference between capacity to understand the wrongness and the legality of the act often might not be of much significance. But in a case like Hadfield's it might be decisive. For Hadfield's mania led him to do the very act for the purpose of causing others to take his life by judicial process. The reference to Hadfield's case is a reference to the trial of Hadfield for the attempted assassination of George III: (1800) 27 State Trials 1281. Lord Kenyon CJ directed Hadfield's acquittal on the grounds of insanity.
20. After referring to some unsatisfactory aspects of Lord Reading CJ's judgment in R v Codere [1916] 12 CR App R 21, the Justices in Stapleton said (at 375): This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity), he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law. My emphasis.) This passage from Stapleton suggests that where the evidence demonstrates that the accused retains an appreciation that his act was contrary to law, the evidence does not satisfy the M'Naghten test even to the civil standard unless the tribunal of fact is satisfied the commission of the otherwise criminal act arose "from complete incapacity to reason as to what is right or wrong" morally (my emphasis). In assessing the evidence in the light of this, it will need to be borne in mind that the relevant time for adjudging the state of mind of the accused is at the time of the commission of the act and not before or after. As always, however, evidence about his conduct before and after may inform a decision about his state of mind at the relevant time. I make this observation because the opinion of the experts about the accused's appreciation that his acts were contrary to law seem to arise solely from his conduct at the time of and after his arrest that I have recounted above.
21. Bearing these legal principles in mind together with the important consideration that the two experts are of the one mind, it is apposite to direct myself, as Johnson J pointed out in Rodrigues at [45], that the Court is not bound to accept and act upon expert evidence, but nor may it be disregarded capriciously. Unanimous expert opinion ought only be rejected where there is evidence which casts doubt upon its reliability, say because the assumptions upon which the opinions are based do not accord sufficiently with the facts proved by the other evidence.
22. Given the adversarial nature of criminal trials I repeat that it is very important to bear in mind that the expert evidence was not challenged by either party. Indeed, the learned Crown Prosecutor, as I have stated, accepts, as Mr Dailly argues, that the defence has been made out. This is a powerful consideration. Even so, given that the sanctity of human life is a fundamental community value upheld and bolstered by the criminal law, it remains important to review the evidence to consider whether it actually persuades me, on the balance of probabilities, that the defence has, indeed, been established. The wrongful taking of life requires retribution, denunciation and vindication of the injury suffered by the community and the victim's family. These objects can only be achieved when offenders are convicted and punished. The taking of Mr Hodges's life is beyond the reach of this principle only if the mental illness defence is made out.
23. In reviewing the lay evidence, I will bear in mind the dictum of Walsh J in R v Jenkins (1963) 64 SR (NSW) 20 at 31 that if it is shown that the two doctors not only come to the same conclusion but provide like reasons for it which "clearly lead to that conclusion … the right decision … must be that the defence has been made out".
24. For completeness, I record that if I am not satisfied that the mental illness defence has been made out, it will be necessary to go on to consider the question of whether the accused intended to kill Mr Hodges when he stabbed him. The answer to that question will be informed by his mental illness, even if the illness does not rise to such a level as to support the mental illness defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental illness supports the partial defence of substantial impairment provided by s 23A Crimes Act 1900 (NSW) reducing murder to manslaughter. Again, the onus on this last issue rests upon the accused, but only to the civil standard.

Voluntary act

1. It's important that I record in my finding in relation to the first issue which is was the act of the accused which caused Mr Hodges's death, a voluntary or deliberate act in the relevant legal sense. I am satisfied beyond reasonable doubt that it was. When summarising the undisputed facts underpinning the Crown case above, I fully described the nature of the injuries inflicted and the means by which those injuries caused Mr Hodges's death. It seems to me that the accused must have consciously gone to the kitchen from the lounge room to procure the knife he used to inflict that fatal wound; considering the depth of the stab wound and the severity of the injuries inflicted a fair degree of force must have been exerted to wreak that damage in a single blow; the accused admitted killing Mr Hodges, inter alia, to his mother, to DCS McDonald and to Sgt. Chris Pieterse (Exhibit A; Tab 35 [4]); and the histories he gave to the experts, which also stand as admissions so far as they go, were that he struck the fatal blow under the delusion that it was necessary for him to do so to save Armidale (or perhaps the earth) from destruction.

The second question - Criminal responsibility

1. I have already summarised the expert opinions in the case. It remains for me to review the available lay evidence to satisfy myself whether the facts assumed by the experts are supported by the other evidence. It is only if the other evidence does not support those assumptions that I would be justified in rejecting the expert evidence in the particular circumstances of this case.

The accused's longitudinal psychiatric history

1. There is no doubt on the evidence before me, as I have already said, that the accused has suffered from schizophrenia since he was a teenager. But it is also apparent that because the diagnosis was made by about the age of 18, he has over those decades largely remained under treatment and has on a certain level functioned within what might be called the range of normality. He has formed meaningful relationships, although he has had difficulty maintaining them. He has had a good work record including obtaining trade qualifications as a plumber and for a number of years holding down a responsible trade job in the Merchant Navy. He has been able to live independently without very obvious negative symptoms of his disease.
2. These factors may be taken as suggesting that his disease has been under reasonable control for most of his life. As an example of that, the widow of Mr Hodges stated (Exhibit A; Tab 2 [24]) that she and her husband: …had both known for years that [the accused] had a psychological illness. I know that he was on that medication that he was taking daily. We didn't treat him any differently for it. There was never any sign of violence from [the accused]. I would describe him as timid especially when someone had a go at him. He would retreat from any confrontation.
3. The accused's mother (Tab 4 [7]) confirmed the diagnosis of schizophrenia in late teens. She also said she'd never seen her son become violent with herself or any other members of the family. Since he's been diagnosed, it's his mother's impression that he has continuously been on prescribed medication and complied with the prescription.
4. Another friend who has known the accused since 2004, said that the accused has always come across as a soft gentle hearted man, whom she had never known to be violent. She had never seen him suffer a psychotic episode. She was aware, however, that he suffered auditory and visual hallucinations. She knew him to speak of extra-terrestrials, but when he did she would attempt to change the subject.
5. The review of his medical records undertaken by the experts, demonstrates that although he was under continuous medical care his condition did fluctuate. After his initial diagnosis the accused had been treated by Dr Finlayson, a psychiatrist. The records indicate that he had acute episodes of his illness in 1996, 2001, 2002 and 2008 requiring hospitalisation and a change in his anti-psychotic medication. There was an incident which occurred on 18 August 2001 associated with the 2001 flare up which lead to the accused being charged with offences of being armed with the intent to commit an indictable offence and assault occasioning actual bodily harm. The victim of this was a female friend whom he believed had stolen a large sum of money from him. He threatened her with a knife and knocked her down. The charges were dismissed under s 32 of the Forensic Provisions Act on the basis of his mental illness.
6. In 2008 he was admitted to Tamworth Hospital following a psychotic episode involving auditory hallucinations, persecutory delusions and delusions of reference, all of which are significant psychotic symptoms. Perhaps significantly for the present context he was expressing concern for the safety of others
7. Throughout these flare-ups, the accused continued under the care of his general practitioner, Dr Heise whom he had seen since the original diagnosis and the psychiatrist Dr Suresh Goriparti. He saw these doctors in Sydney.

The circumstances of his deployment at sea

1. As I have said, for many years he worked in the merchant marine as a tradesman on vessels supplying drilling rigs in the gas fields off the coast of north-western Australia. He seems to have performed this work more or less satisfactorily. His employer knew of his illness and had his condition assessed and monitored from time to time by a psychiatrist in Perth, Dr Richard Kain.
2. Eventually a particular ship's master had reservations about the accused's suitability for work at sea for weeks at a time. The nature of his work involved rotations of 5 weeks at sea and 5 weeks on shore at home on a fly-in and fly-out basis. This skipper Captain Jessop-Pond had sailed with the accused a number of times prior to 2015. Although there had been no incidents he developed reservations about the accused's work performance and his suitability. On a particular deployment in 2015, the Captain observed what appears to have been an ongoing psychotic episode involving auditory hallucinations. When spoken to by the Captain, the accused made statements about being able to communicate with aliens. He said he spoke with them. He also expressed grandiose ideas about his own intellectual power (Tab 8; [12]). The accused, in answer to questions, disclosed his schizophrenia and showed the Captain his medication. On the Captain making inquiries he found that the accused was then taking the highest permissible dose of that particular anti-psychotic drug. The Captain determined to have the accused discharged from the vessel at the next port. Captain Jessop-Pond made it clear to the shipping company that he was unwilling to have the applicant serve on his ship again.
3. I interrupt this narrative to describe two events occurred in March 2017 which in retrospect seem to have led to an ongoing deterioration in the accused's schizophrenia. The first incident was the death of his father on 13 March 2017. Although the accused's father had been unwell for a period before his passing, he had during his lifetime apparently been a very stabilising influence on the accused. Apart from the removal of that stabilising influence, Professor Greenberg expressed the view that the loss of his father "was the stressful significant event" in his life leading to him "developing a relapse in his mental illness". The second event was perhaps made more regretable in the context of the effect of the loss of his father. The accused persuaded his treating psychiatrist to alter his medication. He was complaining about the side-effects from the comparatively high dose of Amisulpride he had been taking and the specialist changed the prescription to a low dose of a new drug, Lurazadone. Dr Nielssen is of the view that this change in prescription triggered an acute exacerbation of his schizophrenia. Dr Nielssen described the change in prescription as a "change from a relative high dose of an effective anti-psychotic medication, to a relatively low dose of a newer form of low potency anti-psychotic."

The deterioration of the accused's condition

1. There is a substantial body of independent lay evidence which supports the conclusion of the experts that from March 2017 there was a noticeable and marked deterioration in the accused's condition. A most telling aspect of this evidence is the large number of statements from officers and shipmates serving with the accused on his final "swing", as it is put, as a merchant seaman. Captain Jessep-Pond was the master of the vessel. When he learned that the accused was to join the vessel he voiced strong objection given his past experience (Tab 8; paragraph [15]). His objection was assuaged by head office informing him that the accused had only been assigned to the vessel for a few days. Apparently within an hour of boarding the vessel in June 2017, the accused gave the Master a magazine article about schizophrenia which asserted that sufferers could communicate with "other dimensions". Captain Jessop-Pond was quite clear that on this voyage the accused's work performance was poor and that he exhibited obvious signs of psychosis. These signs included threatening the life of a shipmate. This is confirmed by the shipmate concerned (Exhibit A; Tab 9).
2. The accused was also seen by a number of people pacing in an agitated fashion in an off-limits area at the rear of the vessel. He complained that he could hear voices in the corridors talking about him and making threats against him. He refused to accept orders from the Captain, exhibiting gross insubordination. The Captain described him as being "in a heightened state, … his eyes were just wild. He was in an aggravated and enraged state". For what it is worth, the Captain formed the impression that he was exhibiting what he described as classic symptoms of chronic schizophrenia. The Captain suspected he had relapsed as a result of not taking his medication (Tab 8 [30]).
3. Such was the Captain's concern that he attempted to arrange for further assessment by Dr Kain through the company's head office. The Human Resources Manager was attempting to contact the accused to make an appointment for that purpose, but he, perhaps uncharacteristically, refused to co-operate. As I have said, the impressions of the Captain have been corroborated by other officers and shipmates.
4. It is notable that the accused was discharged from the vessel on about 19 June 2017 only two days before he killed Mr Hodges. The Chief Officer of the vessel (Tab 13 [25] to [26]) noticed the accused leave the vessel as he was disembarking contrary to usual safety protocols. He witnessed the Master remonstrating with the accused and testifies as to the accused's recalcitrance. The Chief Officer said, "The look he had in his eyes was quite chilling. He was chuckling to himself, and if I could describe it he appeared like the joker in a Batman movie".
5. Craig Doolan was a shipmate whose swing had been completed at the same time as the accused was put off the vessel. He left the vessel with the accused. He attempted to reason with the accused and to persuade him to telephone the HR Manager to arrange the appointment with the psychiatrist. The accused said "No, it's not going to happen." It should be said that by the time they had flown from Karratha where they disembarked to Perth Mr Doolan thought the accused seemed more settled.
6. The accused's mother confirmed that her son had contacted her by mobile phone from the vessel when he could and she formed the impression that he sounded distressed. He complained of problems with the Captain and expressed fear of the crew. However, he would generally sign off saying "Everything is going to be alright, Mum" (Tab 4; [24]).
7. His mother received an email from the HR Manager which was usual as the emails from work generally came to her. However, this email addressed to the accused recorded that the Master was concerned about his welfare; that he had refused directions from the Master; and that he had told the second mate that he had no intention of calling the HR Manager to discuss anything. His mother passed on the information that Dr Kain had said that he could see the accused in Perth as the accused was travelling through, when accused rang her while in transit. He complained of his mistreatment at the hands of the crew and said, "I won't be going to the doctor and I'm not going to the motel. They will find me". He then hung up. I would regard the statement "They will find me" as an expression of the paranoia associated with his disease.
8. The accused telephoned his mother again on the morning of 20 June 2017, his birthday. He said he was glad to be home and asked his mother to arrange an appointment with Dr Heise for him. She next heard from him on the evening of 21 June 2017 in the circumstances I have relayed above (at [8]).

The accounts of Mr Hodges

1. Perhaps the most telling evidence of the deterioration in the accused's condition emanates from Mr Hodges. His accounts are preserved in what he said to others.
2. Mr Hodges moved in with the accused on 10 March 2017, during, as I have said, what proved to be a temporary separation from his wife. He paid rent, and as I have already said, he was agisting his horses there. Before his death he and his wife had reconciled, initiated the purchase of a new home at Macksville on the Coast and were making preparations to move there. Mr Hodges complained to his wife about sharing the house with the accused. He said that the accused was not the bloke he thought he was. The accused apparently spoke to Mr Hodges about his experience with aliens and alleged that he had been abducted and raped by them. The accused complained to Mr Hodges about the "chatter in his head" (Tab 2; [17]).
3. In about April 2017, Mr Hodges fell from his horse when a snake reared, causing the horse to shy. He lost his seat and fell to the ground fracturing his right leg near the ankle requiring surgical repair. When he was killed he was still using a moonboot for support and ambulating with Canadian crutches. He was back at work on supervisory duties. He complained to his wife that he was concerned that in his injured state he would not be able to defend himself if the accused became violent. It says something about the change in the accused that while nothing specific had happened, Mr Hodges was becoming apprehensive about the accused's stability.
4. The accused returned to Armidale from his last swing much sooner than Mr Hodges had expected. He told Mr Hodges that the Captain had upbraided him in front of others and that the crew were all whispering against him.
5. After the accused's return, he and Mr Hodges celebrated the former's birthday on 20 June with a Chinese meal and some drinks. Mr Hodges had gone to bed early at around 8:30 p.m. He later told his wife that the accused had burst into his bedroom at about midnight yelling there's going to be a fight. The accused had armed himself with a shovel and a large kitchen knife. The accused said there were people outside. Mr Hodges went outside with him to check but there was no-one there. He was very concerned about the accused's demeanour. The accused sat up all night in the rear courtyard to the house where there was a firepit. This courtyard was adjacent to Mr Hodges's bedroom. The demeanour of the accused was such that Mr Hodges told his wife he was too afraid to sleep for the rest of the night. At this time his wife had gone to Coffs Harbour to assist her father. Mr Hodges texted her on the morning of 21 June: Andy can't help it. His paranoia got so strong that his delusions become a reality to him, it's sad actually cause he's genuinely terrified. But he needs to stay off the booze and drugs.
6. Mr Hodges went to work on the morning of 21 June to supervise his labourer, Mr Taylor Adams at work. Mr Hodges met Mr Adams at the latter's mother's home. When Mr Adams got into Mr Hodges' ute he noticed Mr Hodges looked extremely tired and Mr Hodges told him what had happened the night before. Mr Hodges said his initial impression was that the accused was going to kill him. Mr Adams said that Mr Hodges told him that the accused was sitting at the firepit yelling out "They're here" (Tab 17 [9]). Notwithstanding what Mr Adams knew to be Mr Hodges' robustness of character, he formed the opinion that he looked scared, worried and tired.
7. After he had dropped Mr Adams off after work Mr Hodges texted his wife saying: I don't wanna go home I know I gotta my poor dogs (sic).
8. The accused told Dr Nielssen that he was "absolutely paranoid" when he left the ship that "they were going to get me". On the night of his birthday he could not sleep and heard Mr Hodges's dogs barking and growling which made him think "there was a pack of animals outside". He said he woke up Mr Hodges who calmed him down but he still could not sleep.
9. On 21 June he drove into town to see a friend but heard voices calling him "a traitor". He did not feel able to park his car because he believed he was being followed. He spoke to his friend, but did not settle.
10. He said when at home that night he thought he saw a military aircraft flying very low overhead. He heard gunshots. He thought of ringing his neighbour to check that she was ok, but a voice said "If you ring her we will kill her." He told Dr Nielssen that "a voice said you have got to kill Kenny or we will bomb the town". He said he thought he was in a war hearing firearms discharging and he thought he heard his neighbour screaming. He heard a person calling himself the General talking in his head. He thought the neighbours and the people in the town were going to die. Given the other evidence I have referred to I am satisfied on the balance of probabilities that he accurately related to Dr Nielssen the thoughts that were actually going through his mind leading up to him killing Mr Hodges.
11. Having said this there is some other evidence I need to refer to. Around 5 a.m. on the morning of 22 June 2017 the accused left his home and travelled into Armidale. At about 5:08 a.m. he purchased milk and cigarettes at a service station; went to McDonalds and purchased coffee where he spoke to another customer about the football the night before; and attended the police station to see the officer in charge about something (perhaps the killing) but he was not available. None of the ordinary members of the community who interacted with him in these transactions noticed anything untoward about him and the question arises whether his demeanour in the morning after the killing is inconsistent with the expert opinion about his mental state when he stabbed Mr Hodges.
12. In his report, Professor Greenberg stated that persons with overt psychotic symptoms can act rationally in certain circumstances. In Professor Greenberg's assessment, the accused was not attempting to flee to avoid the consequences of his actions, a possibly telling circumstance. Rather he appears to be psychotically oblivious to his actual situation, giving an appearance of normality as he went about the ordinary activities of daily life prior to his arrest. In a supplementary report of 23 February 2019 (Tab 43) he confirmed this view. Stating that individuals with a relapse of their schizophrenia who suffer encapsulated paranoid delusions can conduct themselves with the appearance of normality when attending to relatively routine acts such as catching a plane, travelling, driving a car, making purchases, etc; provided the encapsulated delusions do not form part of their thinking about these routine acts. By encapsulated delusion, I understood the professor to mean that the delusions the accused suffered were focused or fixed upon the invasion of the Armidale region by extra-terrestrials. Those delusions were quite separate from and did not infect the accused's thinking about the ordinary activities of buying milk and cigarettes. Dr Nielssen was of the same view.
13. The accused rang his mother at about 7:30 a.m. and appeared calm and quiet compared to how he had been when he called on the evening of 21 June. He said: Mum everything is fine now. I'm in the veggie patch and it is a lovely morning. All is ok now. Everyone is going to be ok. His mother apprehended that all was not ok, and called the police on triple-0. In that call she said something that for some reason is not included in her police statement. She told the operator that her son had had "a bit of mental break down last night and we talked and talked". She continued: Anyhow he just rung me and told me everything is alright and I asked him where his friend was that's just be staying there and he told me he's dead When asked whether she thought her son had anything to do with this she said "Yes, I do." She told the operator about him being delusional and quite frightened. He had referred to the aliens. She said "I mean we haven't had something like this for 20 years".
14. The Justice Health records since the accused's incarceration are fully set out in the report of Professor Greenberg and need not be recited here. But it is important to record that on 23 June 2017 an apparently experienced psychiatric nurse at Tamworth Correctional Centre recorded in the notes that the accused affect was labile, he was laughing and talking inappropriately for his current situation and had an elevated mood. He expressed an underlying concern that the people of Armidale would be attacked. He reported to her that voices had told him to kill his housemate to save other people. She discussed this with the psychiatry registrar and the accused was prescribed Olazepine antipsychotic medication. He repeated this history or something very similar on each of 24, 25 and 26 June 2017. It is clear that he was assessed as being psychotic at those times.
15. I have set out the objective circumstances surrounding the death of Mr Hodges so far as they can be pieced together at the start of these reasons. I am satisfied from the lay evidence I have summarised that the opinions of the experts of a marked deterioration in the accused condition are well justified by that lay evidence and must be accepted.
16. I accept the evidence of Professor Greenberg and Dr Nielssen that when he stabbed Mr Hodges, adapting Professor Greenberg's opinion, he felt morally justified in his actions in that he was saving the people of Armidale, and himself from being incinerated by aliens or from their military personnel who were going to attack the town and kill the citizens. In these circumstances, I accept that he did not know that the act of stabbing Mr Hodges to kill him was morally wrong.
17. In arriving at this conclusion, I have borne in mind the care which must be taken before such a conclusion is reached, even on the balance of probabilities in accordance with the statements of principle I have set out above from The Queen v Stapleton. However, to adapt the language of the Justices, I am satisfied that the insane motives of this accused arise from a complete incapacity to reason as to what is right or wrong even if at the back of his mind he had an awareness that the act he proposed was punishable by law. I think it accurate to say in this case that the judgment of the accused was so deranged by his disease that he treated the act of stabbing Mr Hodges "as one of inexorable obligation or inescapable necessity". I find the defence of mental illness made out.

Orders

1. It follows from this finding that I will deliver a special verdict of not guilty of the murder of Mr Hodges by reason of mental illness. This conclusion makes it unnecessary to consider the issue of intention or the alternative defence of substantial impairment. Before proceeding to pronounce orders, I wish to make some additional comments. I fully appreciate that Mr Hodges was an entirely innocent victim of a brutal attack born of a diseased and deluded mind. He did not deserve to die. I offer my sincere condolences to his family who have been present in Court during the trial. I appreciate that my words cannot salve their sorrow, grief and profound sense of loss.
2. As I said at the outset, a special verdict is not the same as a verdict of not guilty. The accused may not walk free from this Court. It is apparent to me from the evidence I have heard that his disease is far from cured, even though he seems to be receiving appropriate treatment in custody. However, from the evidence, especially of Dr Nielssen, his condition is somewhat treatment resistant. From the evidence of Professor Greenberg and Dr Nielssen which is sufficiently current for this purpose, I am of the view that he yet presents a danger to the community and possibly to himself.
3. In these circumstances there is not the slightest question of it being appropriate to release the accused into the community now. It is not necessary in my judgment that I direct an independent assessment under s 38A of the Forensic Provisions Act. Accordingly, the effect of my order will be that the accused will be committed to the long term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) Forensic Provisions Act the Tribunal may not release the accused into the community unless and until it is satisfied that he will not seriously endanger any person including himself and not without providing notice to the relevant Ministers.
4. My orders are: 1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness. 2. Under s 39 of the Act Andrew John Osmand 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. I direct the Registrar to notify the Attorney General, the Minister for Health and the Mental Health Review Tribunal of these orders as soon as practicable; 4. The Registrar is to provide the Tribunal with a copy of my reasons and of the reports of Professor Greenberg and Dr Nielssen.

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: 27 March 2019