R v Pesamino

Supreme Court of NSW|2020-08-31|Before: Wilson J, Asalemo Dick AJ

Judgment

HER HONOUR: On 31 August 2020 the accused, Asalemo Dick AJ Pesamino was arraigned before me on an indictment charging him as follows: Count 1: On 3 May 2018, at Villawood in the State of New South Wales, did murder Brett Nicholls. Count 2: On 3 May 2018, at Villawood in the State of New South Wales, did assault Gregory McDougall, thereby occasioning him actual bodily harm. Count 3: On 27 March 2018, at Villawood in the State of New South Wales, did assault Brett Nicholls, thereby occasioning him actual bodily harm.
Pleas of not guilty were entered to each of the charges.
The trial proceeded without a jury. With leave, the accused filed an application in court by which he sought an order that he be tried by a judge alone (MFI 1). The Crown consented to that application, taking no issue with the application having been made out of time. The application was granted and a trial by judge order was made: ss 132 and 132A of the Criminal Procedure Act 1986 (NSW).

Some Initial Legal Principles

This being a criminal trial, it is the Crown that carries the burden of proving the guilt of the accused, with the standard being that of proof beyond reasonable doubt. The accused has no obligation of proving anything and he was not required to give evidence. That he did not do so is a matter of no significance, and I do not consider it further.

What the Crown had to prove

In order to prove count 1, the charge of murder, the Crown must prove beyond reasonable doubt that (in the circumstances of this case) a deliberate act of the accused caused the death of the deceased, and that this act was carried out with an intention to either kill or to cause grievous, or really serious, bodily harm; or with reckless indifference to life. The latter means to carry out a deliberate act or omission to act which caused death with foresight of the probability that death would occur.
The accused has raised the defence of mental illness. Thus, if the Crown is able to prove beyond reasonable doubt that Brett Nicholls died, and that his death was caused by a deliberate act or omission of the accused, it will be necessary to consider whether the accused is criminally responsible for that act, before considering, if necessary, whether the act or omission was accompanied by one of the mental states that I have just referred to, proof of which is necessary to establish the charge of murder.
In relation to counts 2 and 3, to prove the charges of assault occasioning actual bodily harm brought against the accused the Crown must prove that the accused assaulted Mr McDougall on 3 May 2018, and Mr Nicholls on 27 March 2018. An assault in this context is an unwanted deliberate application of force by the accused to the person of the alleged victim. The Crown must further prove that the assault caused some real bodily hurt or injury to the alleged victim which is more than a passing or trivial injury.
The same defence of mental illness is raised with respect to counts 2 and 3. I will return to this aspect of the matter shortly.

Events of 27 March 2018

The accused and the deceased, Mr Nicholls, were both residents at a block of units located at Gundaroo Street in Villawood. Mr Nicholls had lived at the unit block since 2000, and occupied a ground floor unit, being number 18. The accused had lived there since March 2018, occupying unit 16.
On 27 March 2018, Mr Nicholls was sitting with his friend Gregory McDougall outside Mr McDougall's unit at number 19. At about 7pm, Mr Nicholls got up and walked along the veranda towards the stairwell. At the same time, the accused walked up the steps. He grabbed Mr Nicholls by the throat and, raising his right leg, stamped his foot down onto Mr Nicholls' foot. Mr Nicholls, who was wearing only thongs on his feet, screamed out in pain. The accused let go of Mr Nicholls and walked towards his unit, going inside and closing the door.
Mr McDougall could see that a toe on Mr Nicholls' foot was already swelling. Mr Nicholls said he would take some aspro and go to bed (Ex. C).
On 29 March 2018, Mr Nicholls attended a general practitioner, complaining that he had been assaulted by a neighbour. Dr Priscilla Oei observed swelling and bruising to the great toe on Mr Nicholls' left foot. She referred him for an x-ray of his left foot (Ex. D).
The subsequent x-ray revealed a fracture extending through the shaft of the proximal phalanx of the big toe of the left foot (Ex. E).

Factual Findings - Count 3

This evidence is relevant to count 3, the offence of actual bodily harm. I accept the evidence, which establishes beyond reasonable doubt that the accused deliberately assaulted Mr Nicholls on 27 March 2018, causing a fracture to his toe, this injury constituting actual bodily harm.

Events of 3 May 2018

At about 5.30pm on 3 May 2018, Mr McDougall called in to see Mr Nicholls at his unit and told him he had made a meal for him. Mr Nicholls said that he would be five minutes. Mr McDougall observed that his friend was wearing jeans and a t-shirt and was not injured. He returned to his unit to ready the meal.
Soon after Mr McDougall heard loud screams. He could hear that it was Mr Nicholls who was screaming; he heard him calling "don't". He rushed immediately to his friend's unit and saw him lying on the floor with the accused bent over him, leaning over his face. The accused's arm was moving up and down over Mr Nicholls.
Shannon Logan, in an upstairs unit in the block, heard a terrible screaming, and banging noises. She heard the accused yelling loudly, and heard Mr Nicholls calling for help, and yelling, "That's enough, that's enough".
Mr McDougall called to the accused to leave Mr Nicholls alone and said he was calling the police. He moved closer to his friend and saw that his face was swollen and bloody. He could see blood coming from Mr Nicholls' mouth, and there was blood on a wall of the unit.
The accused took hold of the unit door, which he slammed into Mr McDougall's head, causing pain and an injury (Ex. A, Ex. B.5). Mr McDougall left, saying he was telephoning police. At his unit, he telephoned the emergency operator, making the call at 5.38pm. He then returned to unit 18.
On arriving back at Mr Nicholls' unit, Mr McDougall saw the accused leaning over his friend. The accused got up, pushing Mr McDougall into the front door of the unit, causing a laceration to his arm (Ex. A, Ex. B.5). Another neighbour, Ms Rich, also heard the commotion and called Triple 0.
The accused, who has no memory of these events, ran from the unit block. He was seen by a neighbour walking along with his arms held up in a "V" configuration, and then horizontally from his body.
Senior Constable Weston and Constable Bonnici arrived at the Gundaroo Street units at 5.46pm. They went directly to unit 18 and saw Mr Nicholls lying on the floor. He had a number of injuries to his face and head and was covered in blood. S/C Weston could not locate a pulse and noted that Mr Nicholls was not responsive. Ambulance officers arrived but could do nothing.
Life was pronounced extinct at 5.58pm. A later post mortem examination determined that Mr Nicholls had sustained very significant blunt force injuries to his face, head, and neck, and died as a direct consequence of those injuries.
Other police officers at the scene at Villawood found the accused lying in a drain at the intersection of Lowana and Gundaroo Streets at around 6pm. His head was facing down a drain. He was directed to show the officers his hands, but made no response. He was moaning. He was handcuffed, but remained unresponsive. The knuckles on both of the accused's hands were injured and bleeding. There was blood on his hands, arms, and clothing (Ex. B.4, Ex. B.10). There was a blood trail between the accused's location and unit 18.
The accused was arrested and S/C Ward began searching him. The accused then seemed to wake, and began screaming, kicking, and thrashing his body about. He was placed in a caged police truck. He was yelling incoherently, and at one point made clucking noises as a chicken might make.
When ambulance officers arrived the accused was sedated, but still protested, "get the fuck off me", "take the handcuffs off me". After some minutes he fell asleep.
The accused was taken to Liverpool Hospital where a blood sample was obtained at 9.50am on 4 May 2018 for toxicological analysis. Later analysis showed that the blood sample contained cannabinoids. No alcohol, methylamphetamine or other intoxicants were detected in the accused's blood sample.
Detective Senior Constable Katie Bennett and PC Senior Constable Amy O'Neill spoke with the accused briefly at Liverpool Hospital. He was formally arrested and cautioned, and told that Mr Nicholls had died. The accused asked, "Is he dead". He told the officers: "There was something in the sky telling me something. Something happened and now we're here. I just want to finish it. Take me to gaol".
The accused was released from hospital soon after and taken in custody to Bankstown Police Station. He was interviewed. The recording of the interview was tendered as Ex. B.8. During the interview, the accused told detectives that he had no memory of having been arrested that evening, as he was intoxicated. He claimed to have consumed "a couple of grams" of "ice" [or methylamphetamine] orally, and by injection; "a couple of cones of pot", or cannabis; and a full litre bottle of Smirnoff vodka. He offered to give the police officers ice, and asked if they would like a photograph of him consuming drugs sent to them. His manner was by turns polite, sarcastic, supercilious and, when he giggled inappropriately, faintly hysterical.
The accused said that he did not know Brett Nicholls and did not remember assaulting him. He asserted that someone had repeatedly broken into his home, "pisse[d] into [his] juice bottle, pisse[d] into [his] shower". He said: "Now someone's paid for it, so I hope no-one fucks with my house again".
He later told the detectives: "I'm just a bit upset at the moment myself in what's happened. Still can't believe it. I'm pissed off with myself.. [incomprehensible] saying a few prayers before I go to sleep now".
He was "pissed off": "'Cause of something out of character, something I wouldn't do. That's why. […] Me hurting somebody else with my hands".
The accused said that he was schizophrenic and received medication by fortnightly depot injection. The accused said that, "hopefully", he was up to date with his medication.
The accused was forensically examined and samples obtained. Later examination of those samples found DNA consistent with having originated with Mr Nicholls at various locations on the accused's hands, neck, and clothing.
An examination of Mr Nicholls' unit was conducted by crime scene officers (Exs. B.1, B.2, B.3). The scene was in disarray and there was a quantity of blood on the walls of the unit and upon objects within it. An oversize broken chess piece was located under a dining chair, near to where Mr Nicholls' body lay (Ex. B.2, Ex. H). It was stained with blood. DNA consistent with the accused was found on the bottom of the chess piece; DNA consistent with Mr Nicholls was located on the top of it (Ex. A). The broken parts of the chess piece weighed 7.2 kilograms; it was made of concrete and fibreglass.

Factual Findings - Count 1 and 2

On the basis of the evidence I am satisfied beyond reasonable doubt that the accused entered Mr Nicholls' Villawood unit on 3 May 2018 and deliberately attacked him, striking him with his fists and probably with the oversized chess piece, inflicting severe injuries to Mr Nicholls' face, head, and neck. These injuries were the direct cause of Mr Nicholls' death almost immediately thereafter.
I am also satisfied beyond reasonable doubt that, on the same day and at the same place, the accused deliberately assaulted Mr McDougall causing lacerations to his head and left arm. Whilst there were two applications of force to Mr McDougall, and two injuries occasioned to him, each of which, separately, amount to actual bodily harm, the assaults are sufficiently connected in time and as a continuing course of conduct, to form one incident, there thus being no need to put the Crown to an election.

The Defence of Mental Illness

Having determined that the accused did a deliberate act in striking Mr Nicholls repeatedly about the head area on 3 May 2018, and that he deliberately applied unwanted force to Mr McDougall on the same date, and Mr Nicholls on 27 March 2018, causing each actual bodily harm, it is necessary to consider whether the accused is criminally responsible for those acts.

Legal Matters Concerning the Defence

The defence of mental illness is a defence that gives rise to an onus on the accused to prove on the balance of probabilities that he is not criminally responsible for his act or acts. Where the defence of mental illness is raised, it is necessary to first consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. I have concluded that he did. It is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28, at 517.
What is required to be shown was set out in R v M'Naghten (1843) 8 ER 718 where the Court said (at 722): "[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that 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 nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
The meaning of the expression "disease of the mind" was considered by King CJ in Radford v R (1985) 42 SASR 266, at 274: "The expression 'disease of the mind' is synonymous, in my opinion, with 'mental illness' … I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten rules. As Lord Denning pointed out in Bratty v Attorney-General (Northern Ireland) [[1963] AC 386 at 412] … any 'mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind'."
King CJ continued, that for there to be a disease of the mind, there had to be "an underlying pathological infirmity of the mind". This underlying infirmity does not have to be permanent and may be of long or short duration. He said, at 274-275: "The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained to the jury in some such terms."
These statements were accepted as correct by Mason CJ, Brennan and McHugh JJ in R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 53-54, although it was noted that, where a disorder or disturbance was prone to recur, it may reveal an underlying pathological infirmity.
The reference in M'Naghten to the accused not knowing that his act was wrong is often referred to as "the second limb" of the test. The second limb was further explained, to a jury, in The King v Porter (1933) 55 CLR 182; [1933] HCA 1 in this way (at 189-190): "If through the disordered condition of the mind [the accused] 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"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."
The Court is only concerned with the condition of the mind at the time the act was done, although the accused's state of mind before and after the commission of the act may inform an understanding of it at the relevant time.
In summary, to avail himself of the defence of mental illness the accused must establish on balance that, as a result of a defect of reason arising from a disease of the mind, he did not appreciate the nature and quality of the physical acts involved in repeatedly striking Mr Nicholls, and in applying force to the person of Mr McDougall and Mr Nicholls, or, he did not know that those acts were wrong according to the everyday standards of reasonable people.
Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides for a special verdict where an accused is not criminally responsible. It is in these terms: 38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.
There are consequences that flow from the return of a special verdict, as provided by s 39 of that Act, and by Division 2 of Part 5 of the same Act. I am aware of those consequences.

Evidence Relevant to the Defence

The accused relies particularly upon Exs. B12, B13, B14, and J to establish the defence. The Crown acknowledges that this evidence establishes that the accused was mentally ill at the material times so as to avail himself of the defence.
Some months after the accused's arrest the Local Court ordered a psychiatric report as to his mental state. Pursuant to the order Dr Gerald Chew assessed the accused on 17 October 2018. It became very quickly clear to the doctor that the accused suffered from a severe mental illness because of the poverty of thought content that limited the interview.
The accused told Dr Chew that at the time of the charged offences he had not taken his medication for about six months and was hearing voices. He was using cannabis. Justice Health records noted a "clear history of schizophrenia and very clear psychotic symptoms". Dr Chew thought that the accused clearly had schizophrenia and was "actively psychotic".
Dr Stephen Allnutt, forensic psychiatrist, saw the accused via audio-visual link on 11 March 2019 at the request of the accused's legal representatives and prepared a psychiatric report dated 14 May 2019. He also reviewed a volume of relevant documentary material including the accused's mental health records, produced under subpoena.
The accused told Dr Allnutt that he was doing "okay, I suppose." He felt sad about being in gaol. He had gained weight due to the medication he was taking and had poor concentration. When asked about his self-esteem, the accused said, "Okay, I guess".
The accused told Dr Allnutt that he continued to hear voices; voices talked about how the accused's life was not worth living, speaking about him in the third person to someone else. He heard the voices randomly, every two or three days, and believed they were demons. He told Dr Allnutt that the voices were loud, and came from outside his head and he experienced them as real. He noted that he had been hearing them, "for years now… since before I was diagnosed with my mental illness", first hearing them in his late teens or early twenties. When he watched television, the accused felt as if somebody was trying to talk to him and send him messages through the television. He thought the demons were trying to get him, although he was not sure how, and felt as if someone was trying to send a message to him through the demons.
The accused told Dr Allnutt that he had last used illicit drugs a few weeks before their meeting, when he used buprenorphine in gaol. He reported that he had had "only a taste of it", denying regular use. He reportedly stopped taking all drugs when he came to gaol. He immediately started medication, and had not stopped taking it since being incarcerated. The accused believed his only medical problem was that he suffered from schizophrenia.
In relation to the charges the subject of these proceedings, the accused initially told Dr Allnutt that he did not remember and was unsure "what he was charged with". When Dr Allnutt clarified with the accused that he was charged with murder, Dr Allnutt noted that "he seemed to be somewhat surprised" but was able to tell the doctor that he was in gaol "Because of the person that was murdered in the units'". Of that incident, he said, "I didn't mean for the victim to die. If it was me, I am sorry. I don't remember what happened. I was in psychosis".
The accused stated that he had last taken medication about six months prior to his arrest, although he was not sure. He stopped taking medication because "I felt like I didn't need it", and believed that around this time he had stopped being followed-up by Mental Health services.
At the time, the accused told Dr Allnutt that he was smoking cannabis daily, about three to five grams a day, having used that drug since the age of 22. He said he had used "ice" (or methylamphetamine) for a few years, stopping about six months, or two or three months, before his arrest. He had also used cocaine some months before arrest.
When asked about how he was on 3 May 2018 the accused told Dr Allnutt that he was hearing loud and clear voices, demons that were giving him a hard time, saying "My life is worthless, I'm unworthy of living". He woke up that morning in his unit. He could not remember what he did that day, but recalled taking cannabis and staying in his unit. He could not remember taking ice that day. He kept hearing voices, and told Dr Allnutt, "The demons were talking about me". He felt depressed at the time, following his father's death. He was experiencing suicidal ideation weekly.
The accused could not recall the voices saying anything about his neighbour. He told Dr Allnutt that someone had broken into his unit the night before, and "messed the place up a bit… they took a bit of cash and cigarettes". He told Dr Allnutt that he had called the police, but then said he was not sure and could not remember. He could not say if he thought that it was his neighbour who had broken in; saying, "My memory is not that good". Dr Allnutt asked him about the injuries he found when he woke up in the morning, and he said, "Swollen legs, ankles, feet, knees … I thought someone was hitting my feet in the night or I was being bashed". He had been thinking this in the weeks before and thought that the person bashing him in his sleep might be someone in the apartments.
The accused had no recollection of the alleged offence or of being in his neighbour's unit. He remembered waking up in the police van and hearing voices, including the voice of Mary MacKillop. He said, "I think I was in an induced psychosis."
The accused's mental health treatment records were reviewed by Dr Allnutt. In brief, the records that the doctor referred to demonstrate that the accused has a long history of reported mental illness and psychotic episodes. His family sought assistance for him in about 2010, noting that his behaviour had been strange since the previous year, when he was believed to have been using drugs and alcohol. There was evidence of an admission between 13 January 2011 and 20 January 2011. A mental health assessment later that year, on 2 August, recorded the accused's discharge after a psychotic episode. He had been brought to the emergency department by police after he assaulted his sister and threatened his family. His family reported an increase in alcohol and drug use, and agitation for the two weeks prior. The accused was experiencing paranoia and there was a reduction in functioning.
Other admissions to psychiatric facilities followed, coupled with community based treatment. The latter was made difficult because the accused was hostile and reluctant to engage. His behaviour became increasingly threatening towards his family over time. He was diagnosed with drug and alcohol dependence, drug-induced psychosis, and paranoid schizophrenia. The accused's father reported concern about the accused's misuse of drugs and alcohol, and it was noted that he had become difficult to manage in the home.
After the accused was admitted to the Mackay Unit at Concord in September 2013 he attempted to abscond by jumping the counters, breaking down a door, wielding furniture as a makeshift weapon, and becoming increasingly aggressive. He also made serious unprovoked physical assaults on nursing staff.
In September 2014 the accused was admitted to a high dependency unit following his family expressing concern that he was going to kill them, but he was transferred after a relapse of psychosis accompanied by aggressive behaviour. A psychiatric note dated 7 October 2014 stated that the accused's relapse had been due to substance use.
Records showed that the accused was an Outreach patient at Bankstown Community Health Service, with a diagnosis of Schizophrenia. Presentations were characterised by paranoid delusions involving his family, particularly his father and sister.
His presentations due to schizophrenia, polysubstance abuse and aggression continued. An assessment from September 2016 recorded a diagnosis of schizophrenia, with cannabis and methamphetamine abuse. He was scheduled on 8 December 2016 because of his refusal of treatment with antipsychotics and his high risk of relapse, with a history of aggression. After discharge the accused was noted to be non-compliant with treatment. He was stated to be guarded, completely without insight, paranoid, and suspicious.
Admissions during 2017 followed, with the accused thought to have psychosis, and schizophrenia complicated by substance abuse. On discharge there were difficulties in making contact with the accused. He was medicated with depot injections because of his failure to adhere to treatment in the community.
Dr Allnutt noted that it appeared that the accused was given depot medication on 18 September 2017, but had missed other appointments with the mental health team. He was given another depot injection on 5 October 2017, this being the last medication the accused took prior to the events of March and May 2018. There were apparently multiple attempts by mental health workers to contact him up until February 2018. On 27 February 2018 correspondence was sent to the accused by mail advising him to contact his general practitioner. Evidently because of the difficulties in maintaining contact with the accused, he was categorised as "no assistance required".
Dr Allnutt noted that, following the accused's admission to NSW Corrective Services custody, the accused denied psychotic symptoms but was difficult to interview. He was somewhat guarded and confused, and thought to be possibly responding to internal stimuli. On 8 May 2018 when interviewed he was found to be intimidating. By 23 May 2018, the accused was noted to be psychotic and to have a well-established diagnosis of schizophrenia complicated by substance use and non-compliance with medication.
By June 2018, having been continuously medicated, the accused's mental state was thought to be improving, and then stable.
Dr Allnutt observed that, at the time of his assessment of him on 11 March 2019, the accused presented as well-groomed. His speech was clear and coherent, although he "constantly asked for questions to be repeated". He endorsed several depressive symptoms and some anxiety symptoms. He presented as: "psychotic, manifesting auditory hallucinations (demons speaking to him), ideas of reference (messages from the TV) and possible paranoid delusions involving demons, which persisted."
Dr Allnutt concluded that the accused had: "a chronic psychotic disorder, likely a paranoid schizophrenia, (characterised by auditory hallucinations, persecutory delusional beliefs, ideas of reference and thought disorder), aggravated by a chronic substance use disorder (characterised by the use of cannabis, on occasions methamphetamines, cocaine and MDMA)."
Dr Allnutt stated that a "diagnosis of a pure drug-induced psychosis is raised", as the accused's psychosis appears to have onset around the time he was also using substances. He opined that the accused had a primary psychotic illness, being schizophrenia, aggravated by substance use. The accused had a long and voluminous psychiatric history, and had a persistence of symptoms despite ongoing psychiatric treatment whilst incarcerated.
He concluded that the accused had a: "probable underlying diagnosis of schizophrenia, complicated and aggravated by substance use and, in the time leading up to the alleged offending, further complicated by discontinuation of his antipsychotic medication and falling out of treatment and ongoing use of cannabis and methamphetamine."
At the time of the alleged offending, Dr Allnutt concluded that the accused was experiencing active symptoms of psychosis, characterised by auditory hallucinations about demons making derogatory comments about him in the third person. The accused believed he was receiving messages from the television in relation to his life not being worth living and demons speaking to him.
As a result of the accused's psychosis, Dr Allnutt believed that the accused's interpretation of his experiences would have been distorted by delusion; he may have incorporated Mr Nicholls into a delusional belief system. The doctor concluded that the accused would have been compromised in his "capacity to reason about the victim's intentions and behaviours towards him and issues related to the moral wrongfulness of his behaviour towards the victim because his psychotic thoughts provided justification."
Dr Allnutt inferred that due to a "defect to reason" and the accused perceiving himself to be a victim of the deceased, the accused: "found a distorted moral justification for acting as he did at the material time of the alleged offences and thus was unable to reason about the matter with a moderate degree of sense and composure about the moral wrongfulness of his actions as compared to a person with normal mind".
He concluded that the accused "likely has a defence of mental illness".
Dr Adam Martin, forensic psychiatrist, saw the accused at the request of the Crown. His first interview with the accused occurred on 23 September 2019, for about one hour (Ex. B.13.i). The accused was then aged 32 years. He told Dr Martin that, prior to entering custody he had been living with his mother and was in receipt of a Disability Support Pension.
During his first interview with the accused, Dr Martin found him to give brief responses to questions that were vague, lacking in detail, and often monosyllabic. The accused described himself as "sick" and "not well" and said that he heard voices from "random people". He thought there were "a few mind readers out there" and feared demons that he thought were trying to get him.
Referring to "what happened," he said that he felt remorse for it, and was sorry, but was not too sure what had occurred and was "still trying to find out".
Having assessed the accused, considered Dr Allnutt's March 2019 report, and reviewed collateral documentary material, Dr Martin considered that the accused demonstrated paranoid schizophrenia and a substance use disorder. He noted the accused's history of interaction with mental health services and that, in the past, the accused has been recorded to become violent and aggressive when unwell. There were documented instances when he had become aggressive with family members and an instance when he seriously assaulted a nurse during an admission to Concord Centre for Mental Health.
Dr Martin noted Justice Health records which evidence treatment for psychosis administered to the accused upon his admission to custody just after the death of Mr Nicholls, and the diagnosis of schizophrenia then given. The accused displayed symptoms consistent with psychosis, including thought disorder and apparent auditory hallucinations.
Dr Martin concluded in his report of 28 September 2019 that the accused was schizophrenic. He said that: "Schizophrenia is considered a major mental illness and has been considered by the Courts to be a 'disease of the mind'. Schizophrenia is essentially a description of a chronic vulnerability to experience of psychosis. Psychosis described a person being out of touch with reality and is manifested by delusional thinking, experience of hallucinations and a breakdown in coherence of communication, called 'thought disorder'. Schizophrenia is associated with significant impairment and disability. Psychosis is considered a serious mental disorder where a person has impaired judgement and decision making and is prone to acting in a disinhibited and impulsive manner. Major mental illness is considered a risk factor for violence. Schizophrenia and related psychotic disorders are frequency associated with substance use disorders. Mr Pesamino can be diagnosed with substance use disorder [alcohol, cannabis, MDMA, cocaine]. Substance use in people with schizophrenia is commonly a precipitating and perpetuating factor which exacerbates the effects of illness and further increases a person's risk of violence."
Of the accused's mental state at the time of the alleged offences, Dr Martin opined: "In relation to his mental state at the time of the offending, the alleged behaviour itself, if proven to have occurred, is obviously extremely violent and seemingly unprovoked, in itself plausibly evidence of a highly disordered mental state. Comments that he makes during the interview suggest that he was angry at the belief that a person, perhaps Mr Nicholls, had broken into his house, stolen items and left bottles of urine, and plausibly this is delusional thinking. This is somewhat speculative and Mr Pesamino in my interview was apparently unable to recall his thought processes at the time. Hypothetically, the alleged offending could have occurred in the context of paranoid thought processes leading to anger and occurring in the context of him being disinhibited as a result of major mental illness complicated by substance use. His behaviour after his arrest sounds disorganised, according to the witness statements and as per the Crown Case Statement. In the police interview, he is fatuous, at times laughing, and is disinhibited, and this would appear to be wholly inappropriate in the circumstances and is plausibly consistent with psychosis. Given his background of schizophrenia and substance use disorder, where there has been previous notation of violent behaviour when unwell, the fact that he was using drugs, was not being prescribed anti-psychotic medication or in assertive psychiatric care at the time, it is a reasonable hypothesis that he was mentally ill at the time of the offending. Regarding the potential defence of mental illness […] speculatively, if it were proven that he had performed the physical act of violence as alleged, then in my view, it is likely that the court would find that he had the mental illness defence available to him. It would seem likely that the alleged offending occurred deliberately and intentionally and that he would probably have known the nature and quality of the alleged violence. However, his ability to appreciate the wrongfulness would probably have been significantly affected by psychosis, with paranoid thought processes and impaired capacity to control his actions or make appropriate moral judgments."
Those opinions are equally applicable to the earlier events of 27 March 2018, with Dr Martin considering that the accused was psychotic at the time of the assault upon Mr Nicholls (Ex. J).
Dr Martin saw the accused for a second time on 27 May 2020. He prepared a report on 3 June 2020, which is in evidence as Ex. B.13.ii.

Finding with Respect to Mental Illness Defence

As the doctors were broadly in agreement, there is no conflict in the expert evidence for the Court to resolve. Given the conclusion of each that the accused was ill with schizophrenia at the time of Mr Nicholls' death, and Dr Martin's opinion that he was similarly ill in March 2018, such that he was not able to judge the moral wrongfulness of his acts, the Court would need a clear and rational reason for rejecting the expert evidence on that point, if it were to do so. The evidence cannot be rejected in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; (1963) 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173, and R v Tumanako (1992) 64 A Crim R 149. There is no evidence to suggest other than that the accused was suffering from schizophrenia, a disease of the mind, at the time of the alleged offences, and could not judge the wrongfulness of his acts.
Although the accused raised the issue of intoxication in his interview with detectives, the objective evidence is that he had not in fact consumed alcohol or methylamphetamine at a time proximate to the events of 3 May 2018. Whilst come cannabinoids were detected in his system, nothing in his use of that drug could explain his conduct on 27 March 2018 or 3 May 2018.
The accused's acts of themselves point to mental illness, as does his conduct and presentation when located and later interviewed by police on 3 May 2018. All of the expert and other evidence falls one way.
Although in my conclusion the accused's symptoms and psychosis were made worse by his abuse of drugs, that does not discount the role of his enduring mental illness. His thought processes surrounding Mr Nicholls were paranoid and psychotic and, under the sway of that psychosis he acted as he did on the occasions the subject of charges.
On the balance of probabilities I find that, on 27 March 2018 when Mr Nicholls was injured, and on 3 May 2018 when the accused caused the death of Mr Nicholls and occasioned actual bodily harm to Mr McDougall, the accused was labouring under such a defect of reason from a disease of the mind, schizophrenia and its effects, that he did not know that what he was doing was wrong in accordance with ordinary standards of right and wrong adopted by reasonable people.
He cannot be held criminally responsible for his acts.

Mr Nicholls

Before I deliver the verdicts I want to say something about Mr Nicholls and to those who loved and mourn him.
Mr Nicholls was, on all of the evidence, living a peaceable life at the home in which he had lived for close to twenty years. Although he became the focus of the accused's irrational beliefs, that was not because of any action of his. Mr Nicholls did nothing to bring about the two attacks upon him. Specifically, the accused's beliefs about someone breaking into his home were clearly delusional and did not relate to any conduct of Mr Nicholls.
Mr Nicholls' death is a terrible tragedy. He was 41 years old when he was killed and he should have had many more years of life left to him. I am sure that his death has caused great loss to his family and friends, whose presence in Court during these proceedings has marked their love for him. I express to them the Court's deepest sympathy for his death, acknowledging that the proceedings before the court will have been very difficult for them.

Verdicts

With respect to count 1, that, on 3 May 2018, at Villawood in the State of New South Wales, the accused murdered Brett Nicholls, I find the accused not guilty by reason of mental illness.
With respect to count 2, that, on 3 May 2018, at Villawood in the State of New South Wales, the accused assaulted Gregory McDougall, thereby occasioning him actual bodily harm, I find the accused not guilty by reason of mental illness.
With respect to count 3, that, on 27 March 2018, at Villawood in the State of New South Wales, the accused assaulted Brett Nicholls, thereby occasioning him actual bodily harm, I find the accused not guilty by reason of mental illness.

orders

The Court makes the following orders: 1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to counts 1, 2, and 3 of the indictment of 15 November 2018. 2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Asalemo Dick AJ Pesamino 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 that the Registrar notify the Minister for Health of these orders. 4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdicts and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, a copy of the indictment, and copies of trial exhibits A, B.12, B.13, B.14, and J.

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: 03 September 2020

Mental Health (Forensic Provisions) Act 1990(NSW)

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