R v Siemek

Supreme Court of NSW|2021-10-11|Before: Johnson J, System J

Judgment

JOHNSON J: On 11 October 2021, the Accused, Justin Karl Siemek, was arraigned on an indictment which charged that, on 27 May 2020, at Euroka in the State of New South Wales, he did murder Vincent Evans. The Accused pleaded not guilty on the grounds of mental health impairment.
On 3 September 2021, the Accused signed a written election to be tried by Judge alone having received advice in relation to the election from his legal representatives. The Crown consented to a Judge-alone trial so that the Court was required to proceed by Judge-alone trial for the purpose of s.132(2) Criminal Procedure Act 1986.
Prior to the trial, the Court was informed that the Crown and counsel for the Accused agreed that the proposed evidence in the proceedings established a defence of mental health impairment so that the remaining question was whether the Court, after considering that evidence, was satisfied that the defence of mental health impairment was established for the purpose of s.31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("MHCIFP Act").

Evidence Adduced at the Trial of the Accused

The evidence placed before the Court at the trial of the Accused was entirely documentary.
The Crown tendered, by consent, a document entitled "Agreed Facts Pursuant to Section 191 Evidence Act 1995" signed by the Accused, his solicitor and the Crown and dated 8 October 2021 (Exhibit A).
In addition, the Crown tendered, without objection: 1. a report of Professor David Greenberg, forensic psychiatrist, dated 5 July 2021 (Exhibit B); and 2. a supplementary report of Professor Greenberg dated 6 October 2021 (Exhibit C).
Mr Neild, counsel for the Accused, tendered without objection, a report of Dr Richard Furst, forensic psychiatrist, dated 5 May 2021 (Exhibit 1).
Written submissions dated 8 October 2021, prepared by counsel for the Accused, were relied upon at the trial (MFI1). The Crown agreed with the submissions of counsel for the Accused on issues of fact and law summarised in those submissions.

Trial of the Accused for the Purpose of the MHCIFP Act

Although the events giving rise to the trial of the Accused occurred on 27 May 2020, the MHCIFP Act (which commenced on 27 March 2021) applies to this trial: R v Tonga [2021] NSWSC 1064 at [6]-[10].
Section 28 MHCIFP Act provides for the defence of mental health impairment: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions."
The reference in s.28(2) to a question to be determined by a jury extends to a trial by Judge alone: s.6 MHCIFP Act.
The term "mental health impairment" is defined in s.4 MHCIFP Act: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder."
As noted earlier, s.31 MHCIFP Act has application to this trial. That section provides: "31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established."
It is for the Crown to prove the guilt of the Accused beyond reasonable doubt for the offence of murder. The Accused has the benefit of the presumption of innocence. The Crown must prove beyond reasonable doubt that the Accused committed the physical acts which caused the death of the deceased.
The Accused does not dispute that it was his voluntary act (or series of acts) that constituted the direct cause of the death of Mr Evans.
As Wilson J observed in R v Tonga at [15], if the Court is satisfied that the physical elements of the charge of murder have been proved by the Crown beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of the mental element of murder. This is consistent with the law as it stood prior to the commencement of the MHCIFP Act: Hawkins v The Queen (1994) 179 CLR 500 at 511; [1994] HCA 28; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [30]-[32].
In R v Tonga, Wilson J referred to the interaction between ss.132 and 133 Criminal Procedure Act 1986 and s.31 MHCIFP Act at [95]-[100]. In identifying the task for the Court at a Judge-alone trial where s.31 MHCIFP Act applied, her Honour said at [98]-[100]: "98 The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act. 99 Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31. 100 Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes."
I agree with her Honour's analysis concerning this issue.
In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 "aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found" (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added "extra safeguards" in that "the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established". This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences", 2013, paragraphs 3.159-3.160.
It remains for the Court to find the facts (which are not in dispute in this case) and then apply the terms of ss.4 and 28 MHCIFP Act for the purpose of the Court determining whether it is satisfied that the defence of mental health impairment is established. As Wilson J observed in R v Tonga, it is not necessary for the Court to recite in any detail directions which may have been required if the trial was proceeding other than in circumstances where s.31 MHCIFP Act has application.
However, the Court's decision fulfills another important purpose. It provides reasons for the verdict of the Court announced in open court on a serious charge where there is a strong public interest in the community understanding the basis upon which the verdict has been returned. The provisions of reasons for a decision is an expression of the open justice principle. The importance of a public explanation for final decisions has long been recognised: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[58].
In addition, where the Court returns a special verdict of act proven but not criminally responsible under s.30 MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s.33 in circumstances where the Court must refer an accused person to the Mental Health Review Tribunal under s.34 MHCIFP Act if such a special verdict has been returned. The reasons of the Court for reaching the verdict, and for making consequential orders, serve an important role in the discharge by the Mental Health Review Tribunal of its functions with respect to a person in relation to whom such a special verdict has been returned: cf Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 at [17] (concerning the giving of reasons where the parties signed consent orders in civil proceedings under rule 36.1A Uniform Civil Procedure Rules 2005).
It is against this legal background that I will now turn to make findings of fact before considering the psychiatric evidence adduced at the trial.

Findings of Fact

The following findings are drawn from the narrative of agreed facts contained in Exhibit A. Background of the Accused
The Accused was born in 1978 and is now 43 years old. At the age of 19 years, he was first admitted to James Fletcher Hospital and diagnosed with "query drug induced psychosis or query manic phase of bipolar affective disorder".
Between the date of that diagnosis in 1997 and 27 May 2020, the Accused was admitted to hospital for treatment of his mental health on some 15 occasions. The Accused began to consume alcohol and cannabis when 14 or 15 years old. He began to consume amphetamines in his later teenage years. Throughout his adult life, the Accused has struggled with substance abuse and addiction. He was married for a period and had four sons with his ex-wife. He did not retain custody of the children after the end of that relationship. Events in 2019
In May 2019, the Accused was living alone in Kempsey. At about that time, he met Stephen and Jennifer Morrison (who also lived in Kempsey) through a church group and he began going to church services held by that group.
In October 2019, the Accused was living at a hotel in Kempsey and was performing volunteer work at a charity store in Kempsey. Through his work, he met a woman with whom he commenced an intimate relationship. During the course of that relationship, the Accused and his partner regularly consumed alcohol, cannabis and/or amphetamines together. Events in Early 2020
In early 2020, the partner told the Accused that she did not want to continue their relationship.
On 10 January 2020, the Accused attempted suicide by cutting his wrist at the hotel in Kempsey where he had been residing. He was taken by ambulance to hospital and remained at the Port Macquarie Hospital Mental Health Unit until his discharge on 24 January 2020. He returned to the hotel at Kempsey and he and his partner recommenced their relationship.
On 30 January 2020, the Accused made a second suicide attempt by stabbing himself in the abdomen at the hotel in Kempsey. He was again taken to hospital for treatment. After being stabilised, he was transferred to Taree Hospital where he remained until 20 February 2020. He was discharged from hospital on that day and once again lived at the hotel in Kempsey. The Accused saw the Kempsey Hospital Mental Health Team following his discharge. The Accused Meets Vincent Evans
On 26 February 2020, the Accused was at Kempsey Police Station where he met Vincent Evans, who attended the police station to bring in a bike he had found. Mr Evans was 63 years old. He was an accountant, residing with his wife, Vicki, in Euroka, about five kilometres out of South Kempsey.
The Accused and Mr Evans struck up a friendship. They played squash together and Mr Evans engaged the Accused to undertake some house maintenance work at his property.
In March 2020, the Morrisons offered the Accused a place to stay and, on 28 March 2020, the Accused moved into a studio apartment at their residence in Kempsey.
The Accused resumed his relationship with his partner who was living at a hotel in Kempsey. They still consumed alcohol and drugs together regularly.
From the time when they met in February 2020, Mr Evans and the Accused appeared to have a positive friendship with no animosity. Mr Evans was supportive of the Accused's issues and tried to help him.
Mr Evans engaged the Accused to do some fencing work for a friend whose property had been badly damaged in the 2019 bushfires. This work was undertaken on three occasions from 24 March 2020, with Mr Evans telling the friend for whom the work was being done that the Accused was "a nice fellow who was going through a rough trot". Days Leading Up to 27 May 2020
As mentioned earlier, the Accused was receiving assistance from the Kempsey Hospital Mental Health Team following his discharge from hospital on 20 February 2020.
On 3 May 2020, a mental health nurse spoke with the Accused and noted that he presented as being euthymic, reactive and engaging. The Accused denied mood symptoms, psychotic symptoms or suicidal ideation. He reported ongoing methamphetamine, cannabis and alcohol use, but claimed he had cut his use down substantially. The nurse, however, noted that the Accused may be minimising his use. It was noted that the Accused had a stable mental state on his then current medication. It was considered that the Accused was no risk to himself or others at that time, although it was noted that this was highly changeable in the event of non-compliance with medication and substance use.
In about mid-May 2020, the Accused told the Morrisons that he had bipolar disorder.
From 21 to 24 May 2020, the Accused did not stay with the Morrisons. When he returned, he told them that he had been staying with his partner and had been consuming drugs and alcohol with her.
In the week leading up to 27 May 2020, the Accused and Mr Evans exchanged a number of text messages about general matters.
On the morning of 26 May 2020, Mr Evans texted the Accused and arranged to pick him up at 8.00 am the next morning. Mr Evans had planned to do some odd jobs at the property, including servicing and changing the brakes on his wife's car which was due for a registration renewal.
At 4.27 pm on 26 May 2020, Jennifer Morrison texted the Accused to come to their house for a chat since she had not seen him for a day and was concerned about him. The Accused came out of the studio apartment and spoke to the Morrisons on the veranda of their house. He pointed to his head several times and said "I hear voices". After some discussion, the Accused returned to the studio apartment and seemed to be settled.
Later that evening, the Accused visited his partner at her accommodation. She thought he "seemed really good" although he had been drinking and smoking cannabis. He left late in the evening and they organised to be together again at about 4.00 pm the next day. Events on 27 May 2020
On the morning of 27 May 2020, Mr Evans dropped his wife off to work as he needed to replace the brakes on her vehicle which he proposed to do that day. His wife agreed she would get a lift home after work with a colleague who lived nearby.
Mr Evans picked up the Accused at 9.00 am from the Morrisons' property.
During the morning of 27 May 2020, Mr Evans was in touch with various persons by telephone or text message with the last text from him being sent at 11.18 am. The Fatal Attack by the Accused Against Mr Evans
I am satisfied that the Accused killed Mr Evans in the middle of the day on 27 May 2020.
Between 11.00 am and 12.00 pm, neighbours of Mr Evans heard "loud and aggressive screaming" or "yelling" coming from the direction of Mr Evans' property. Persons, including Ms Evans, tried to contact Mr Evans by telephone around lunch time, but the calls went unanswered.
At about 3.55 pm, neighbours of Mr Evans at Euroka observed a person (whom I find was the Accused) driving Mr Evans' vehicle away from the Evans' property before it returned at about 4.02 pm. Ms Evans Returns Home in the Early Evening
At about 6.15 pm, a colleague of Ms Evans' dropped her home to Euroka. She noticed that the house was very dark. She heard a bumping noise as she unlocked the screen door to the house and, when she entered, she saw the Accused standing in the foyer holding Mr Evans' .22 rifle.
Ms Evans asked the Accused where her husband was, to which the Accused responded "Oh he's out. I've had a bad day". Ms Evans tried to look around the house and asked the Accused to put the gun down as he was making her nervous. He said "I've had a really bad day. I just want to hold it. I just want to hold it".
Ms Evans said she needed to go to the toilet and walked into the en suite from where she tried calling her husband's telephone, but there was no answer. In further conversation with the Accused, Ms Evans tried to keep him calm and offered to make him a cup of tea. The Accused responded "Can I have it strong, really strong, with a couple of sugars? I've just have had a really bad day, I think I want to end it". Assuming he was referring to killing himself, Ms Evans said "Well you don't want to do that, why don't you have a cup of tea and tell me about your day? What about some food, you would feel a lot better".
Ms Evans made some tea. The Accused moved to the breakfast bar and then back to the family room and asked her "Do you know how to turn the lights off in your car, I don't know how to do it?". Ms Evans confirmed that she did and the Accused took the keys out of his pocket and handed them to her whilst he was still holding the gun. Ms Evans Leaves the House and Makes a "000" Call
Ms Evans took the keys and walked slowly past the Accused to the front door. He followed her outside, remaining at the front door. She told him the lights were off.
As she reached her vehicle, Ms Evans walked quickly down the side of the house and to the house of her next door neighbours. She told the neighbours there was a man in her house holding a gun who would not tell her where her husband was. Ms Evans called "000" at 6.32 pm and remained at the neighbours' house until police arrived. The Accused Rings his Mother in South Australia
At 6.48 pm, the Accused called his mother who lived in South Australia. He kept repeating that it was not a good day and that he was a bad person. Ms Siemek thought that the Accused sounded "really, really sad when he was talking".
Aware of his previous suicide attempts and mental health history, Ms Siemek was worried he was suicidal again. She asked him questions in order to ascertain where he was so she could arrange for a taxi to pick him up and take him to hospital. He told her he was out in the country doing some fencing at a gentleman's property.
After talking for some time, Ms Siemek asked the Accused if she could speak to the gentleman he was with. By this time, the Accused was repeating that he kept having really bad thoughts and he was going to go to gaol for a very long time or not be around tomorrow. He told his mother that the man was "gone".
As the Accused kept repeating that the man was "no good", his mother asked "Do you mean he's dead?" to which the Accused replied "Yeah, he's gone". The Accused Speaks to his Sister in South Australia
By this time, Ms Siemek was very worried. She walked to her daughter's house and handed her the telephone. Her plan was to keep her daughter talking to the Accused whilst she (the mother) called "000" from her daughter's mobile phone in order to let New South Wales Police know that someone was hurt and that the Accused needed help. Ms Siemek told the operator that the Accused thought he killed someone, that he had a mental illness and had made two suicide attempts earlier in the year. She continued speaking to the operator whilst the Accused's sister spoke to the Accused.
The Accused's sister asked him what was going on and he said "I'm a bad person". She asked where the person was that he had been with, to which the Accused responded "In the garage". She asked "Can you help him?" and the Accused replied "No, it's too late, he's gone".
The Accused's sister considered that he was "very vague" and "sounded really confused". Her experience had been that when the Accused spoke to her when he was mentally unwell, he spoke in a way that was "eerie" and "robotic". Given her past experience of speaking to the Accused when he was unwell, she considered that he was unwell at the time of that conversation. At one point in the conversation, the Accused said "I have to either die or go to gaol tonight". His sister responded "You don't have to kill yourself, you can go to gaol".
The Accused told his sister that he was holding a gun. The sister alerted her mother about this and this information was passed on to police. Soon after, the Accused's mother took the telephone from her daughter and was speaking simultaneously to the Accused and the police on the two telephones.
When the telephone was returned to the Accused's sister, he kept saying he was going to kill himself. His sister told him to take the bullets out of the gun and asked him how he killed the man. The Accused said "It's too gory, I don't want to tell you". After some further conversation along similar lines, the sister heard what she thought was a gun click and she started screaming "No". Police Arrive at the Evans' Home
Meanwhile, following the "000" calls, police arrived at the neighbours' house at Euroka around 7.20 pm and spoke to Ms Evans. A number of police attended and positioned themselves in the yard of the Evans' residence. They could see the Accused pacing inside the house.
At 8.06 pm, the Accused walked out onto the veranda to one of the vehicles and returned inside. He was seen again at 8.32 pm standing inside the front security door speaking on a mobile phone and holding the rifle. He turned off the inside and outside lights of the house. The Accused Emerges from the House and is Arrested
A few moments later, the Accused walked outside onto the driveway. He was carrying the rifle in his right hand and a phone in his left hand. He was told by police to drop the rifle and raise his arms. The Accused slowly followed those instructions and began walking towards the house. Police yelled at him to stop where he was and get down on his knees, which he did with his hands raised. The Accused was arrested and identified himself to police.
The rifle was secured and the magazine emptied, revealing that it had been loaded with eight .22 calibre rounds. The clothing of the Accused was blood stained and he had blood on his hands. Police Speak to the Accused
After being cautioned, police spoke to the Accused and he said "I've had the worst day. I was about to take my life, I've had the worst day". When asked if he was "OK", the Accused said "I'm no good mate". The Accused was asked if anyone else was in the house and he said "I think Vince is in there, he's in the garage". Police asked if "Vince was OK" and the Accused replied "No".
The Accused was asked if he had taken "tablets or anything like that" and he said "Nah, I suffer from mental health". When asked if he had been taking his medication, the Accused said "No". He did not answer when asked how long it had been since he had last taken his medication. The Accused said "I was going to take my life. I was going to take my life I was. That's all". When asked how he knew Mr Evans and if he had any issues with him, the Accused said "I got mental health issues and I acted out on them today, that's all I'm gonna say".
In the course of further conversation with the police about his phone and the blood on his clothes, the Accused said on a number of occasions "I've had the worst day". He was conveyed to Kempsey Police Station and participated in an ERISP but made no comments. He consented to a number of forensic procedures being conducted. He was later asked what had happened and the Accused said "I might have stabbed him". Police asked where the knife was and the Accused responded "I don't know, I've had a bad day". Police Search the Evans' House and Garage
Meanwhile, police entered and began searching the Evans' house, noticing an overturned vase in the hallway. The door to the garage, located at the end of the hallway, was closed.
Police entered the garage and saw the body of Mr Evans lying face down on the ground. Blood soaked sheets and a towel were on either side of him partially under and partially over his body. Paramedics were called and a crime scene was established.
The gun safe of Mr Evans, similar to an old-style gym locker, was located in the garage. It was damaged and had been forced open. There were no guns inside. Mr Evans owned four firearms, one of which had been held by the Accused from the time Ms Evans had arrived home until his arrest. As will be seen, the other three firearms owned by Mr Evans were located in the back of his vehicle.
Multiple stab wounds were observed on the body of Mr Evans. There was a defensive laceration on his left arm.
The forensic pathologist who undertook the autopsy concluded that the cause of death of Mr Evans was "multiple stab wounds to head, neck and torso". There were also blunt force injuries in the form of multiple abrasions to the face and other parts of the body.
Examination of the area in the garage around the body of Mr Evans revealed blood staining and drag marks.
The gun safe had been forced open with blood stains and finger prints in the area revealing that it was the Accused who had broken into the gun safe.
Located in Mr Evans' vehicle were blood stains and a towel containing two rifles and a shotgun which had been removed from the gun safe.
In the footwell of the front seat of the vehicle was located a backpack which contained Mr Evans' wallet, a box of Winchester .22 calibre ammunition and a double-edged bladed knife. This knife belonged to Mr Evans and was usually kept in a tool box stored in a cabinet in the garage. The knife was stained with blood. It is clear that the Accused had used this knife to kill Mr Evans. The Accused's Version of Events
The Agreed Facts document (Exhibit A) stated that the Accused provided a version of events to Professor Greenberg on 22 June 2021 which can be summarised as follows: 1. On 27 May 2020, the Accused was collected by Mr Evans and they returned to Mr Evans' home. 2. The Accused began to hear voices telling him to take the life of Mr Evans. 3. The Accused and Mr Evans were in the garage and Mr Evans observed the Accused to be pale and suggested he take the Accused to the hospital or home. 4. As they left the garage, the Accused saw a knife on the shelf - he struggled with his thoughts, before picking up the knife and stabbing Mr Evans to the upper neck. 5. Mr Evans fell to the ground outside the garage and passed away where he fell. 6. Later, the Accused dragged the body of Mr Evans into the garage and put sheets and towel on either side of him. 7. At some point, later in the day, the Accused broke into the gun safe with the intention of ending his life, but before he could do so, Ms Evans returned home.

The Defence of Mental Health Impairment and the Expert Medical Evidence

The defence of mental health impairment under s.28 MHCIFP Act has two limbs (see [10] above).
The first limb is that the Accused, at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s.28(1) MHCIFP Act.
The second limb is that the relevant impairment had one or other of the effects referred to in s.28(1)(a) or (b).
The presence of each limb is to be determined on the balance of probabilities (s.28(2)) and, until the contrary is proved, it is presumed that the Accused did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s.28(1): s.28(3) MHCIFP Act.
In the second reading speech for the MHCIFP Bill, the Attorney General said that Part 3 of the Bill "updates and legislates what was the common law test for the defence of mental illness" arising from the decision in M'Naghten's Case (1843) 8 ER 718 (Hansard, Legislative Assembly, 3 June 2020, pages 2351-2352). The Attorney General said that Clause 28 "provides for the defence of mental health impairment or cognitive impairment, which closely mirrors M'Naghten's test but with updated terms". With respect to the formulation of the defence, the Attorney General explained that "it is important to victims of those forensic patients who have successfully raised the defence of mental illness that the defence recognises that the person did do an act".
The language used in s.28(1)(a) and (b) originates from the renowned summing up to a jury in a murder trial in Canberra by Dixon J, a Judge of the High Court of Australia, in The King v Porter (1933) 55 CLR 182 at 187-190; [1933] HCA 1. In recommending a statutory provision along these lines, the New South Wales Law Reform Commission made clear that the summing up of Dixon J in The King v Porter had been widely accepted and adopted, and that it was an appropriate formulation to be included in the statutory statement of the defence: Report 138, "People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences", 2013, paragraphs 3.90- 3.109.
As will be seen, each of Dr Furst and Professor Greenberg have addressed the defence of mental health impairment in s.28 MHCIFP Act in their respective assessments of the Accused.
Prior to the enactment of the MHCIFP Act, it had been said that, although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174; [1970] HCA 14), the need to establish the elements of the defence made the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160.
An elaborate definition of "mental health impairment" now appears in s.4 MHCIFP Act (see [12] above) which requires the Court to consider whether, amongst other things, "a temporary or ongoing disturbance of thought, mood, volition, perception or memory … would be regarded as significant for clinical diagnostic purposes": s.4(1)(a) and (b). The introduction of an assessment of the relevant "disturbance" as being "significant for clinical diagnostic purposes" means that expert medical evidence is now more than a practical necessity in cases where the s.28 defence is raised.
It remains the case that juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR(NSW) 20 at 31; Tumanako v R at 161-163; R v Klamo at [44]-[50]. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337].
The parties in this trial referred to the statement of Button J in Carter v R [2019] NSWCCA 11 at [319] concerning the evidentiary value of expert psychiatric evidence: "… although it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system."
Against this background, it is appropriate to turn to the expert medical evidence in this case. At the outset, it should be observed that each of Dr Furst and Professor Greenberg is an eminent forensic psychiatrist with very great experience in the assessment of persons charged with serious crimes in the courts in this State.
As regards the first limb of the defence (see [85] above), Dr Furst stated in his report of 5 May 2021 (page 5): "It is noteworthy that Mr Siemek's persistent psychotic symptoms (in the form of intermittent hallucinations and thought broadcasting) have been occurring over recent months in the absence of a severe depressive episode or current manic episode, meaning he meets criteria for the diagnosis of schizoaffective disorder, rather than bipolar affective disorder (psychotic symptoms being confined to severe mood episodes in bipolar affective disorder and persisting beyond the resolution of the acute mood episode, depressive or manic, in people the schizoaffective disorder). The diagnosis of schizoaffective disorder is consistent with the nature of his reported psychotic symptoms in any case, persistent hallucinations and related delusions going beyond what would generally be seen in people with bipolar affective disorder alone. Schizoaffective disorder is also consistent with the psychosocial decline and functional impairment evident in Mr Siemek over the last 12 years or so, possibly longer. Therefore, Mr Siemek meets criteria for the diagnosis of the following mental disorders: • Schizoaffective Disorder • Substance use disorder (cannabis, methylamphetamines) Schizoaffective Disorder is a chronic and severe mental disorder characterized by distortions in thinking, perception, emotions, language, sense of self, behaviour and mood. Common symptoms experienced in people with schizoaffective disorder include hallucinations (hearing voices or seeing things that are not there), delusions (fixed, false beliefs), severe mood disturbance (alternating manic episodes and/or severe depressive episodes), behavioural disturbance, motor abnormalities, negative symptoms and cognitive deficits."
In his report of 5 July 2021, Professor Greenberg said (pages 38-39): "Bipolar 1 Disorder I am of the view, Mr Siemek has a Bipolar 1 Disorder. For a diagnosis of Bipolar 1 Disorder, it is necessary for the person to have a manic episode. The manic episode may have been proceeded by or may be followed by hypomanic major depressive episodes. A manic episode has the following diagnostic criteria: A. A distinct period of abnormality and persistently elevated, expansive, or irritable mood and abnormality and persistently increased goal directed activity or energy, lasting at least one week and present for most of the day, nearly every day (or any duration if hospitalisation is necessary) B. During the period of mood disturbance and increased energy or activity, three (or more) of the following symptoms (four if the mood is only irritable) present to a significant degree and represent a noticeable change from usual behaviour: a. Inflated self-esteem or grandiosity. b. Decreased need for sleep (e.g., feels rested after only three hours of sleep). c. More talkative than usual or pressure to keep talking. d. Flight of ideas or subjective experience that the thoughts racing. e. Distractibility (i.e., attention too easily drawn to unimportant or irrelevant external stimuli) as reported or observed. f. Increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation. g. Excessive involvement in activities that have a high potential for painful consequences (e.g., engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments). C. The mood disturbance is sufficiently severe to cause marked impairment in social or occupational functioning or to necessitate hospitalisation to prevent harm to self or others, or there are psychotic features. The episode is not attributable to the physiological effects of a substance. Substance Use Disorder Based on the documentation and assessment, I am of the view Mr Siemek qualifies for this diagnosis. The essential feature of a Substance Use Disorder is a cluster of cognitive, behavioural and physiological symptoms indicating that the individual continues using the substance despite significant substance related problems."
In his supplementary report of 6 October 2021, Professor Greenberg expressed the following conclusion (page 1): "I am of the opinion that Mr Siemek qualifies for a legal concept of 'mental health impairment' as defined in sections 4 & 5 of the Mental Health and Cognitive Impairment Forensic Provisions 2020. Mr Siemek had a Bipolar 1 Disorder which is a mental illness with episodes of mania and psychotic symptoms at the time of the alleged offence."
It will be noted that Dr Furst has expressed the opinion that, at the time of the act causing the death of Mr Evans, the Accused met the diagnostic criteria for Schizoaffective Disorder and that Professor Greenberg has expressed the opinion that the Accused had Bipolar 1 Disorder.
Both the Crown and counsel for the Accused submitted that the Court did not need to resolve this divergence of opinion between the experts in order to find that the first limb of the s.28 defence had been established in this case. I agree with that submission. Each psychiatrist has concluded that the Accused was suffering from a "mental health impairment" at the relevant time and each of the two impairments with which they respectively diagnosed the Accused is relatively consistent in its symptoms. There is a significant overlap in the description of symptoms which fall under each diagnostic heading. The divergence of opinion may be characterised appropriately as being one of description or labelling, rather than the existence or extent of the Accused's mental health impairment.
It should be kept in mind that the Accused has a long history of treatment for mental illness extending back to an initial diagnosis involving bipolar disorder when he was 19 years of age.
I am satisfied that, at the time of the act which caused the death of Mr Evans, the Accused had the necessary "disturbance" for the purpose of s.4(1) which arose from (at least) "an affective disorder, including clinical depression and bipolar disorder" for the purpose of s.4(2)(b) MHCIFP Act.
Although the Accused had a history of substance use which included the use of cannabis, methamphetamine and alcohol and was diagnosed by Dr Furst and Professor Greenberg with substance use disorder, it is clear on the evidence that the impairment of the Accused as at 27 May 2020 was not caused solely by the temporary effect of ingesting a substance or a substance use disorder. Accordingly, the exclusionary provision in s.4(3) MHCIFP Act does not apply in this case.
I am satisfied on the balance of probabilities that, at the time of carrying out the act or acts which caused the death of Mr Evans on 27 May 2020, the Accused had a "mental health impairment" so that the first limb of s.28(1) MHCIFP Act is established.
In relation to the second limb of the defence (see [86] above), Dr Furst said in his report (page 8) (my emphasis): "The available history and medical records confirm that Mr Siemek was suffering from severe depression, auditory hallucinations of a commanding nature and associated delusional thinking, including thought broadcasting. He was mentally unstable, had persistent suicidal thoughts and tried to kill himself on 10 January 2020 and again on 6 February 2020 [sic - should be 30 January 2020], both suicide attempts resulting in life-threatening injuries and requiring medical/surgical treatment and then psychiatric admissions. Those symptoms and his reported behaviour, coupled with a lengthy history of mental illness and numerous previous psychiatric admissions, are indicative of Mr Siemek suffering from a poorly controlled schizoaffective disorder, a mental health impairment as defined in section 4 of The Act. His mental health impairment was present in the months prior to alleged offending, at the time of his alleged offending, and over the last 10 months in custody. His actions in allegedly killing Vincent Evans on 27 May 2020 near Kempsey were devoid of any apparent or obvious logical reason, making it more likely than not he was driven by his internal psychotic symptoms, especially auditory hallucinations of a commanding nature that told him he had to kill himself or kill someone else otherwise his children would be killed. He was also suffering from severe symptoms of depression at the time. Accordingly, and in relation to determinations under section 28 of The Act, I am of the opinion that Mr Siemek was aware of his alleged actions/omissions that led to the death of Mr Evans; however, he did not know that his alleged actions/omissions were wrong. That is, Mr Siemek could not reason with a moderate degree of sense and composure about whether his alleged act of killing Mr Evans, as perceived by reasonable people, was wrong. In my opinion, Mr Siemek has the defence of mental health impairment available to him."
In his report of 5 July 2021, Professor Greenberg reviewed in detail the evidence in the Crown brief and stated that he was (page 49): "… of the opinion that Mr Siemek did know the nature and quality of his act at the time of the alleged offence. This means the capacity to comprehend the significance of the act (of killing) and the act by means of which the act was done [Sodeman, per Dixon J at 214-215]. I'm of the opinion that Mr Siemek did know that the act was legally wrong. It is alleged that he left the scene of the alleged offence."
However, Professor Greenberg said in that report (page 51) (my emphasis): "When Senior Constable Michael Dietrich allegedly spoke to him at time of his arrest, he allegedly said, 'I got mental health issues and I acted out on them today, that's all I'm gonna say guys'. Subsequently, he gave an account to Dr Elliot and myself consistent with rapid deterioration in his mental state and a psychotic state at the time of the alleged offence. In my opinion, he likely felt compelled to act on his thoughts/voices/beliefs. He likely did [not] know that the conduct was wrong because he could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong. Therefore, on balance, I'm of the opinion that Mr Siemek likely has a defence of mental illness available to him and was likely suffering from a mental illness so as not to be responsible for his actions in accordance with the test set down in R v M'Naghten (1943) 8ER 718."
In his supplementary report of 6 October 2021, Professor Greenberg stated (pages 1-2) (my emphasis): "With regards to the defence of mental health impairment and cognitive impairment under section 28: For reasons stated in my previous psychiatric report dated 5 July 2021, I'm of the opinion that at the time of the alleged offence, Mr Siemek had a mental health impairment, that had the effect that: Mr Siemek did know the nature and quality of his act/omission at the time of the alleged offence. Further, Mr Siemek likely did know that the act was legally wrong, however he did not know the act was wrong (that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)."
Professor Greenberg expressed the following conclusion (page 2): "… on balance, I'm of the opinion that Mr Siemek likely has a defence of mental health impairment available to him."
Based on the evidence of Dr Furst and Professor Greenberg, neither the Crown nor counsel for the Accused submitted that s.28(1)(a) MHCIFP Act had been satisfied.
It was submitted, however, on behalf of the Crown and the Accused that, based on the evidence (including the agreed facts), the Court would find on balance that s.28(1)(b) had been satisfied in that the Accused did not know that the act was wrong, that is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
Both the Crown and counsel for the Accused submitted that the Court would accept the unanimous evidence of the two medical experts that the second limb of the s.28 defence had been established in this case. Although it was acknowledged that the Court is not bound to accept the medical evidence relying upon the authorities referred to earlier (at [93]-[94]), it was submitted that the Court should do so unless there is some material which casts doubt upon the unanimous medical evidence. It was submitted that there was no such material in this case so that the Court should return a verdict of "act proven but not criminally responsible" under ss.30 and 31 MHCIFP Act.

Is the Defence of Mental Impairment Established in this Case?

I am satisfied beyond reasonable doubt that the Accused stabbed Mr Evans on a number of occasions so that it was the physical acts of the Accused which caused the death of Mr Evans.
Further, I have found that the Accused was subject to a "mental health impairment" at the time of these events on 27 May 2020 so that the first limb of the defence of mental impairment under s.28(1) MHCIFP Act is established in this case (see [102]-[104] above).
With respect to the second limb of the defence of mental impairment under s.28(1) MHCIFP Act, I have had regard to the totality of the evidence including the matters contained in the Agreed Facts and in the reports of the expert witnesses, Dr Furst and Professor Greenberg. Having considered all the evidence, I accept the opinions of Dr Furst and Professor Greenberg which are expressed in detailed and well-reasoned reports which address the facts of this tragic event, against the background of the Accused's psychiatric history and his mental state at the time when he caused the death of Mr Evans.
I accept the written submissions on behalf of the Accused, with which the Crown agreed, which identified a number of features in the evidence which supported the conclusions of Dr Furst and Professor Greenberg concerning the availability of the defence of mental impairment to the Accused in this case. The matters which support the availability of the defence of mental impairment to the Accused include the following: 1. the Accused's prior diagnosis of mental illness, namely bipolar disorder, at the age of 19 years (report of Professor Greenberg dated 5 July 2021 (pages 14-15); report of Dr Furst (page 3)); 2. the Accused's long history of treatment for his mental illness, including numerous occasions on which he was treated as an inpatient in hospitals (report of Professor Greenberg dated 5 July 2021 (pages 14-23); report of Dr Furst (pages 3-4)); 3. the Accused's two attempts at suicide on 10 and 30 January 2020 (report of Professor Greenberg dated 5 July 2021 (pages 30-31, 43-44); report of Dr Furst (page 3)); 4. the Accused reporting to the Morrisons on 26 May 2020, the day prior to his causing the death of Mr Evans, that he was hearing "voices" (see [44] above); 5. the absence of any apparent rational explanation for the Accused to have attacked Mr Evans, given that they enjoyed a positive and untroubled friendship and that Mr Evans had been generous in his assistance towards the Accused (see [36]-[37] above); 6. the indication given by the sister of the Accused that, when speaking to him by telephone on the evening of 27 May 2020 after he had caused the death of Mr Evans, the Accused was speaking in a way which she described as "eerie" and "robotic" and which was consistent with her previous experience of him when he was mentally unwell (see [64] above); 7. the indication by the Accused to police on arrest that he had "mental health issues and … acted out on them today …" (see [72] above); and 8. the account given by the Accused to each of the psychiatrists of hearing voices at or about the time at which he caused the death of Mr Evans which caused him to commit the act (report of Professor Greenberg dated 5 July 2021 (page 48); report of Dr Furst (pages 4-5)).
In addition to these features, I have had regard to the actions and words of the Accused over a period of time which culminated in the bizarre events of 27 May 2020. His interactions with Ms Evans in the house that evening were indicative of the existence of serious mental illness. His acts in breaking into the gun safe and recovering the firearms point to a man with his mind in turmoil. He remained at the premises and spoke to Ms Evans before ringing his mother in South Australia to speak to her. Once again, the tone and content of his conversation with his mother and his sister is indicative of serious mental illness, including self-destructive thought processes which he had acted upon just a few months before.
After applying the principles set out earlier in this judgment to the evidence adduced in the trial, I accept the submission of the Crown and counsel for the Accused and find, on the balance of probabilities, that the Accused had a "mental health impairment" at the time when he committed the acts which caused the death of Mr Evans and that the impairment had the effect that the Accused did not know that his act was wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
Accordingly, the Court is satisfied, having considered the evidence in the proceedings, that the defence of mental impairment under s.28 MHCIFP Act is established in this case.
Before moving to announce the formal verdict of the Court, the Court wishes to emphasise that the evidence demonstrates that the Accused was welcomed, supported and assisted by Vincent Evans and Stephen and Jennifer Morrison, who came to meet the Accused in the months prior to these tragic events on 27 May 2020. No conduct of any member of the Evans or Morrison families played any part in the commission of the acts by the Accused which caused the death of Mr Evans.
Indeed, a significant factor which supports a finding that the defence of mental impairment exists in this case, is the way in which the Accused committed these acts out of the blue and with no rational explanation. This tragic case involved a man with significant mental illness killing a person who had assisted him in the community in which they lived.
It is appropriate, as well, to commend the calm approach of Vicki Evans, who demonstrated fortitude and clear thinking on the night of 27 May 2020 in what must have been a very frightening experience. The Court also commends the response of the mother and sister of the Accused who did their best, at long distance, to bring these terrible events to a peaceful conclusion.

Verdict

On the charge that the Accused on 27 May 2020, at Euroka in the State of New South Wales did murder Vincent Evans, the Court finds the act proven, but the Accused not criminally responsible for it.
The verdict that will be entered on the indictment dated 31 August 2021 is: "Act proven but not criminally responsible".

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: 13 October 2021

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