R v Snjegota

Decision: 1. On the charge contained in the indictment that Milenko (Gobesan) Snjegota murdered his father, Vitomir Snjegota, I return the special verdict of act proven, but not criminally responsible.
2. Under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), I refer the accused to the Mental Health Review Tribunal (MHRT) for its review of the accused as soon as practicable.
3. Direct the Registrar to provide the Registrar of the MHRT with a copy of my reasons, the report of Professor David Greenberg of 21 September 2025, the three reports of Dr Adam Martin of 6 June 2024, 13 November 2024 and 29 May 2025 and the Victim Impact Statement of Silvana Snjegota.
4. Under s 33(1)(b) of the Act, order that the accused be detained in his current place and manner pending review by the MHRT and thereafter in such place and manner as the MHRT may determine until the accused is released by due process of law.

Catchwords: CRIMINAL LAW – murder – trial by judge alone –circumstantial Crown case – where unidentified intruder hypothesis does not rise to the level of a reasonable possibility – satisfied beyond reasonable doubt that the accused was the assailant – mental health impairment defence raised under s 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where the accused diagnosed with Schizophrenia disorder – distinction between legal and ‘moral’ wrongfulness – verdict of act proven, but not criminally responsible.

Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 31, 36, 40
Criminal Procedure Act 1986 (NSW) ss 132A, 133

Cases Cited: R v Snjegota [2024] NSWSC 1551
Shephard v the Queen (1990) 170 CLR 573; [1990] HCA 56
R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211
R v Hillier (2007) 228 CLR 618; [2007] HCA 1
Western Australia v Rayne [No 3] [2012] WASC 404
Hawkins v the Queen (1994) 179 CLR 500; [1994] HCA 28
R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226
The King v Porter (1933) 55 CLR 182; [1933] HCA 1

Category: Sentence

Parties: Rex (Crown)
Milenko (Gobesan) Snjegota (Accused)

Representation: Counsel:
N Keay (Crown)
S Fraser (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Morrisons Law Group (Accused)

File Number(s): 2024/45415

Publication restriction: Nil.

JUDGMENT

1. The accused, Milenko (Gobesan) Snjegota is charged on indictment that on or about 3 February 2024 at Farmborough Heights in the State of New South Wales he murdered his father, Vitomir Snjegota.

2. When the matter was first in the arraignments list in this Court on 1 November 2024, the arraignments judge, Hamill J, was informed that the question of the accused’s fitness to plead had been raised in expert psychiatric evidence due to his “chronic Schizophrenia” (Report Dr Adam Martin dated 29 May 2024, Exhibit A 1). Accordingly, the accused was not arraigned, the matter was adjourned and allocated to me for the conduct of a fitness inquiry under s 40 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), which I fixed for 29 November 2024 at Wollongong.

3. In preparation for the fitness inquiry, a second report was obtained from Dr Martin dated 13 November 2024 (Exhibit A 2). By that time, the accused’s condition had been stabilised with the regular administration of appropriate anti-psychotic medication. He was not suffering psychotic symptoms then and Dr Martin formed the view that he appeared able to concentrate and communicate adequately. in the circumstances, having regard to the considerations in s 36 of the MHCIFP Act, Dr Martin considered the accused fit to plead. At the conclusion of the fitness inquiry, I made the following finding (R v Snjegota [2024] NSWSC 1551 at [9]):

“It is apparent to me, notwithstanding that a fitness inquiry is not an adversarial proceeding, that there is currently no evidence before me that Mr Snjegota is in fact unfit to plead or to participate appropriately as an accused person in a trial on indictment for the murder of his father. Indeed, from my consideration of the Justice Health material in the file, extending to about the end of April 2024, when on appropriate medication, Mr Snjegota is articulate and to use an expression often used in these situations, “lucid”.”

I observed (at [10]) that it was the experience of the courts that the unfortunate disorder of Schizophrenia does not of itself always give rise to an unfitness to plead. I vacated the fitness inquiry. An indictment was then presented, Mr Snjegota was arraigned and to the charge of murdering his father he entered the plea of “not guilty”. The matter was set down for trial at Wollongong commencing on 14 July 2025.

4. To avoid confusion and meaning no disrespect to any person, for the balance of these reasons, I will generally refer to Mr Snjegota as the accused, and Vitomir Snjegota as the deceased, as is conventional in murder trials.

5. When the matter was fixed for trial, the expectation was that the only issue would be whether the Crown could discharge the onus of proof to the criminal standard of beyond reasonable doubt that the accused was the assailant who inflicted the severe blunt force injuries to the deceased’s head which caused his death. The accused has always denied that he is that person, has made no express admissions and maintains his innocence. Notwithstanding the clear diagnosis of Schizophrenia at that time, there was no evidence then available that, were the accused the perpetrator, he may have had available to him the mental health impairment defence in conformity with s 28 of the MHICFP Act. That changed following the receipt of a third report of Dr Martin dated 29 May 2025 (Exhibit A 3).

6. However, in the meantime and for different reasons, an application was made under s 132A of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) for a trial by a judge alone. In accordance with the usual practice in the Supreme Court, the accused’s application which was opposed by the Crown was referred to a judge other than the allocated trial judge. The application was heard and granted by my colleague, her Honour Justice Sweeney on 19 June 2025.

7. The third report of Dr Martin was served on the Crown as notice that, in the alternative, the accused would now be raising and relying upon the mental health impairment defence. The matter came before me for further directions on 10 July 2025 to consider whether the trial was ready to proceed. By then, the Crown had not had the opportunity to have the accused assessed by a forensic psychiatrist. Given that the matter was now a judge alone trial, both parties wished to preserve the allocated hearing dates for the avoidance of unnecessary delay on the basis that I would receive all available lay and other evidence relating to the physical element of the charge of murder, essentially, whether the accused was the perpetrator, before adjourning part-heard for further hearing after the Crown had received its expert report. I acceded to what was effectively the joint application of the parties.

8. I took the available evidence in Wollongong between 15 and 17 July 2025 and adjourned the matter, at the request of the parties, for further hearing on 27 November 2025. By then, the report of Professor David Greenberg dated 21 September 2025 had been received by the Crown. As it transpired, the substance of Professor Greenberg opinion was not substantially different from Dr Martin’s. However, the matter could not be dealt with in the more or less ‘summary’ fashion contemplated by s 31 of the MHICFP Act as the fundamental question of the identity of the perpetrator remained very much in issue.

Legal considerations

9. Under s 133 of the Criminal Procedure Act, I am empowered to make any finding that could have been made by a jury on the question of the guilt of the accused and that finding has, for all intents and purposes, the same effect as the verdict of a jury. However, unlike juries, whose reasons are inscrutable, I am required to give judgment in a judicial manner. The judgment must include the principles of law I apply and the findings of fact I make. Where the circumstances would have required a warning to be given to a jury, including about its approach to the assessment of certain evidence, I am required to take the warning into account when dealing with the evidence the subject of the warning. As things transpired, there was no evidence calling for a warning and none was requested by the parties.

10. The fundamental starting point is that the accused is presumed to be innocent of the offence with which he is charged unless and until the prosecution proves his guilt beyond reasonable doubt by evidence which I accept. The expression “beyond reasonable doubt” encapsulates the standard of proof resting upon the prosecution in a criminal case and is the highest standard of proof known to our law. It has been referred to as “designedly exacting” and it is no mere collocation of words. It refers to a standard of persuasion that must be engendered in me by the evidence led to discharge the onus. While the expression should be allowed to speak for itself, the onus is not discharged by proof that the accused probably murdered the deceased, or even that it is very likely that he did. Nothing short of proof beyond reasonable doubt discharges the onus resting on the Crown to rebut the presumption of innocence. The onus of proof never shifts and rests with the Crown throughout the trial until I make my findings. The accused carries no onus in relation to the elements of the offence of murder and has no obligation to give or call evidence to establish his innocence. His innocence is presumed.

11. Just as any person, including the accused, has the right to remain silent when arrested by police and to refuse to be interviewed by them, so too is an accused entitled to stand mute in Court as it were. The exercise of the right to silence by an accused person does not alter the burden and standard of proof resting on the Crown. As I have said, the accused is not obliged to give evidence and the circumstance that he chose to not do so in the trial before me does not in any way affect the onus of proof lying upon the Crown. I will not draw any adverse inference whatsoever against the accused because he declined to speak to police other than to deny any knowledge of his father’s death or how it came about when first approached by the police and arrested. Indeed, I am entitled to have regard to his denial if I regard it as reliable as an account given to police. If I accept his denial, the accused is necessarily not guilty.

12. Even were I to conclude that the accused’s account to police might reasonably be true even as a possibility, I could not be satisfied beyond reasonable doubt that the Crown have proved its case. On the other hand, if by reference to the other evidence in the case I conclude that the accused’s denial could not reasonably possibly be true, I will put his account to one side and consider whether the Crown have actually proved by evidence which I do accept that the accused killed the deceased. Evidence which I reject proves nothing.

Proof beyond reasonable doubt in a circumstantial case

13. Except for the accused’s denial, there is no direct evidence about what happened to the deceased. The Crown case is entirely circumstantial, in that it rests upon indirect evidence of the circumstances surrounding the deceased’s death to discharge the onus of proof. The Crown invite me to infer from those surrounding circumstances that the accused killed the deceased. While inferential reasoning is permissible in a criminal trial, the Crown will have failed to discharge the onus of proof unless the guilt of the accused is not only a rational inference, but is the only rational inference that can be drawn from all of the circumstances established by the evidence which I accept (Shepherd v the Q**ueen (1990) 170 CLR 573; [1990] HCA 56 at 578 (Shepherd v The Queen) per Dawson J). Expressing the same idea but another way, I “cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances” (R v Hillier (2007) 228 CLR 618; [2007] HCA 13 (R v Hillier) at [46]).

14. In R v Hillier, Gummow, Hayne and Crennan JJ stated (at [46]):

“It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.”

Their Honours continued (at [48]):

“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But … a circumstantial case [is not] to be considered piecemeal.”

15. In the context of a prosecution proceeding on circumstantial evidence, it is essential to apply the burden of proof strictly and to consider the possibility that the proven facts do not point to guilt. A verdict of guilty cannot be returned unless the proven facts are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty. I repeat, that guilt must not only be a rational inference; it must be the only rational inference that the proven facts considered together as a whole enable me to draw (Western Australia v Rayne [No 3] [2012] WASC 404 at [26]-[30]).

16. The existence of a rational or a reasonable hypothesis founded in the evidence consistent with innocence means that the Crown has failed to discharge the designedly exacting onus of proof lying upon it. The existence of such a hypothesis necessarily leaves, at the conclusion of the case, an operative doubt which requires the acquittal of the accused. It is not necessary that I would actually infer that the subject matter of the hypothesis consistent with innocence in fact occurred before making an allowance for its reasonable possibility (R v McIntyre [2000] NSWCCA 6; 111 A Crim R 211 at [31]-[34]).

17. The adjectives “rational” and “reasonable” exclude that which is far-fetched, fanciful or purely speculative. To be rational or reasonable, the hypothesis must have a foundation in the circumstances established by the evidence.

A final point about proof

18. As I have said, the prosecution bears the burden of proving the crime charged beyond reasonable doubt. This means that the essential ingredients of each legal element must be so proved. It does not mean that every fact or every piece of evidence relied upon to prove an element by inference, must itself be proved beyond reasonable doubt. I may quite properly draw the necessary inference of guilt having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided my conclusion is reached upon the criminal standard of proof. It has been famously remarked that the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately (Shephard v T**he Queen at pp 579-580, Dawson J).

The elements of murder

19. As I have just directed myself, it is the elements of murder which the Crown must prove beyond reasonable doubt. I remind myself that criminal responsibility for murder is established if, and only if, the Crown prove beyond reasonable doubt that the accused by his voluntary or deliberate act of inflicting blunt force trauma to the head of the deceased caused his death with the actual specific intent of either killing him or inflicting grievous bodily harm upon him.

20. In the present case, my focus will be on the question, as I have already indicated, of whether the Crown have proven beyond reasonable doubt that the accused committed the physical element of the offence consisting of the infliction of the blunt force trauma. There is no issue between the parties that, given the severity and number of the injuries inflicted about the deceased’s head, that the perpetrator, whomever that person was, must have actually intended to kill or very severely injure the deceased.

21. A second reason why my focus must be on the physical element of the charge of murder is, as I have already explained, the expert evidence is all one way in pointing to the potential availability of the mental health impairment defence.

Reasoning process to be observed

22. Where the mental health impairment defence is raised in a prosecution for murder, no question of intent arises for determination if the defendant is not criminally responsible for his act by reason of his mental health impairment (Hawkins v the Queen (1994) 179 CLR 500; [1994] HCA 28 at 510, 512-514, and 517 (Hawkins) ; R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at 493 [32]). And this is so, notwithstanding there may be no necessary inconsistency between suffering a mental health impairment and forming a specific intent to do very serious harm (Hawkins at 515).

23. Accordingly, the usual order of reasoning to be followed is to consider whether the Crown have proved beyond reasonable doubt that the accused is the perpetrator of what I have referred to as the physical element of the crime of murder and then move directly to the question of the mental health impairment defence.

24. As an exception to the rule that, at all times, the onus of proof lies upon the Crown and never shifts, it is important to point out at this juncture that the onus of proving the mental health impairment defence lies upon the accused. This is because there is a presumption of sanity, which is rebutted by proof of the availability of the mental health impairment defence (s 28(3) MHICFP Act). The standard of proof which the accused must meet, however, is on the balance of probabilities, rather than beyond reasonable doubt (s 28(2) MHICFP Act).

25. It is only if I was not satisfied on the balance of probabilities, meaning more likely than not, about the mental health impairment defence being available to the accused that it would be necessary to consider other issues in the case. If I have not already made it clear, there is no issue between the parties that the perpetrator, whomever he or she was, had the requisite intent, or at least that is the only rational inference available on all of the circumstances established by the evidence, and that the deceased died as a result of the very serious injuries inflicted upon him. That is to say, that the whole of the circumstances established by the evidence relevant to the question admit of only one rational inference, and that is that the acts of the perpetrator caused the death of the deceased.

26. I will turn to the question of whether the Crown have proved beyond reasonable doubt that the accused is the perpetrator who inflicted the fatal injuries upon the deceased.

Factual determination

The main contentions

27. The Crown case is that the deceased was killed when he was mowing his back lawn during the afternoon of Saturday, 3 February 2024. The attack on him was a severe one involving the use of an offensive weapon such as a crowbar or a claw hammer.

28. On the evidence of Dr I’Ons, forensic pathologist, there were at least seven separate strikes inflicted upon the deceased, some of which may have occurred while he was supine on the ground. The force used was more than was necessary to cause death, and more than one of the blows would have been sufficient on its own to cause death instantaneously.

29. Neither the person of the deceased nor his residence was robbed. Attempts were made to clean the crime scene with water from a backyard hose. The torso and head of the deceased were covered with a large square of fabric.

30. It is the Crown case that, from all of the circumstances proved by the evidence, many of which are not in dispute, the only rational inference is that the accused was the perpetrator.

31. While Mr Fraser SC, who appears for the accused, does not dispute the Crown’s narrative as to the nature of the act causing death, he submits that all of the circumstances established by the evidence leave open a rational hypothesis that the perpetrator was an, as yet, unidentified intruder. He submits that weight should be given to the accused’s denial when confronted by police on the afternoon of 4 February 2024.

32. Neighbours who attended the premises to investigate escaping water, investigating police later that same afternoon, and indeed the Court on the occasion of the view in July 2025, were all able to gain unimpeded access from the front yard to the back yard along the passageway at the northern end of the residence.

Background facts

33. I turn to some background facts. As of 3 February 2024, the deceased was aged 74 years, having been born in October 1949. The accused was 47 and born in April 1976. Only the accused and the deceased resided in the Snjegota family home in Farmborough Heights, Wollongong when the deceased was killed.

34. The home is a free-standing two-storey residence with a western frontage to the street. As I have said, there is a passageway connecting front and back yards at the northern end of the building. Access to the upper level is provided by separate front and rear external stairs.

35. The upper level consisting of three bedrooms, kitchen, lounge and bathroom was occupied by the accused. The deceased occupied the lower level, out of which he had fashioned a residence consisting of one bedroom, sitting room, bathroom and kitchen. The external laundry directly abutted the door connecting the lower level with the backyard.

36. Generally speaking, the relationship between father and son could be fractious, but it was not always so. The source of their differences seems to have related to the accused’s resistance to obtaining necessary treatment for his chronic Schizophrenia. Although a community treatment order (CTO) under the Mental Health Act 1987 (NSW) had been in place for many years, the accused, from to time, refused medication. The evidence suggests that even with treatment, the accused’s condition was deteriorating and, as of October 2023 in particular, there had been a deterioration in the accused’s relationship with the deceased and other members of his immediate family, but not in all things or always.

37. In October 2023, concerns were raised by supermarket staff when it was reported to police that the accused had purchased over 12 litres of bleach and vinegar as well as a large quantity of batteries. Police attended the home to investigate the report; however, the accused denied them entry but explained that he was in the habit of buying that amount of product every fortnight, which was corroborated by the deceased.

38. When the mental health nurse conducted a home visit on 30 October 2023, the deceased was supportive of the accused and complained about police “chasing his son” (Exhibit 44, p 24). The deceased also said that the accused “was doing very well at that time and [the deceased] had no concerns about him”.

39. In January 2024, a psychiatrist made notes commenting upon the accused’s appearance. He had adopted wearing medical gloves, stockings and large work boots. He also had, around this time, adopted a sort of “mutism” and would only communicate with others by typing emails or via text message. The accused messaged the doctor that “he was enjoying his ‘fantastic spiritual journey’”. The accused’s mental state was not improved, but there was no suggestion of a relapse of psychotic symptoms, but communication was hampered due to the accused’s adoption of mutism.

40. The registered nurse who case managed the accused’s CTO completed a file review on 29 January 2024. The review recorded that the accused had an extensive history of engagement with CTOs since 2004. The writer regarded his pattern of illness as suggesting a gradual deterioration in functioning over time and acute relapse, disordered behaviour and a risk of harm to others, especially during periods of non-adherence to treatment under the CTO. A history of isolation and aggressive behaviour had also been a feature of the accused’s condition since his Schizophrenia diagnosis.

41. Upon the accused’s admission to custody on 7 February 2024, the accused acknowledged the diagnosis of Schizophrenia and stated he had experienced symptoms in the preceding month, however denied hallucinations and paranoia. It is not clear what he meant by ‘symptoms’.

42. Initially in prison, he refused treatment. However, the accused was eventually examined by Dr Gordon Elliot, forensic psychiatrist, on 21 February 2024. Dr Elliot, either on assessing the accused or from reading the accused’s previous medical records, recorded the accused’s history of aggressive behaviour when unwell. Dr Elliot thought the accused was able to guard or hide his delusions and other symptoms while presenting with bizarre behaviour. Dr Elliot also formed the view that the accused suffered from chronic Schizophrenia with extremely poor insight into his own disorder. He did not appear obviously unwell, but Dr Elliot formed the impression that he had well-guarded symptoms unless very unwell.

Undisputed objective facts surrounding the deceased’s death

43. The deceased’s body was discovered by his next-door neighbours, Stephen and Anita Peck, on the afternoon of 4 February 2024 at about 6:00pm.

44. The neighbours had gone to the deceased’s home to investigate the source of escaping water, which had saturated their backyard and vegetable garden. When they approached the front of the residence and knocked on the deceased’s lower-level front door, they received no answer, prompting them to then walk along the passageway on the northern side of the building.

45. Mr Peck had given evidence that usually the deceased placed a section of pool fencing across the path to act as a makeshift gate to the rear yard. He recalled this gate was not in place on the evening of 4 February 2024. When he entered the backyard, he noticed water running “aggressively”, as he put it, out of a garden hose which was hanging on the wall. He also noticed the deceased’s body lying on his back under the handle of his lawnmower. The upper part of the body had been covered with a sheet or piece of fabric. Mr Peck’s immediate thought was that the deceased must have suffered a heart attack. He also noticed that the deceased appeared to have mowed two strips or paths in the back yard; one in the direction of a fruit tree which Mr Peck knew to be there, and another heading towards the deceased’s beehives.

46. From police crime scene photographs, the deceased’s body was towards the northern side of the backyard near the concrete patio abutting the house. The sheet with which the upper part of his body was covered was blood stained.

47. Mr Peck rang triple zero at 6:04 pm. In response to Mr Peck’s call, Constables Simis and Ware arrived at the premises at 6:27 pm. A police detective followed, attending the premises at 6:45 pm. Crime scene investigators arrived at 9:25 pm and their work was completed by early the following morning when the deceased’s body was removed from the premises and taken to the mortuary at Wollongong Hospital. It is recorded as being received at 5:45 am on 5 February 2024 according to agreed facts.

48. Dr I’Ons was the specialist forensic pathologist who carried out the post-mortem examination on the body of the deceased commencing at 9 am on 5 February 2024. The direct cause of death was found to be blunt force head injuries. There were no other causes or contributing conditions identified in the examination. At the time of the post-mortem examination, Dr I’Ons noted moderate changes of decomposition. Dr I’Ons described the numerous fractures to the deceased’s skull as “severe” (254.5T), involving the application of “massive force” (255.14T) whereby separate strikes would be necessary to cause each of them. There were two circular shaped depressed fractures of the skull just below the vertex at the back of the deceased’s head, referred to as “pond fractures”, which are almost invariably caused by direct pressure. The appearance of the fractures suggested the use of a rounded weapon like the curved aspect of a crowbar or a hammer. The infliction of either of those skull fractures would involve immediate loss of consciousness, collapse and death given the nature and severity of the underlying brain injury associated with each of them.

49. The next significant injury identified by Dr I’Ons was a depressed comminuted fracture of the frontal bone of the skull with an oblique fracture running through the parietal bone to the right temporal bone. This injury complex may have been the result of more than one strike to the head and was probably also caused by a weapon used with a very significant degree of force. Dr I’Ons reasoned such elements were required in order to “break the [deceased’s] skull in that way” (256.25T). There were several severe facial bone fractures with a deformity caused to the glabellar, which is located at the bridge of the nose and described by Dr I’Ons as “probably the hardest bone [a person has] in [his or her] skull” (256.45T).

50. There was a penetrating injury and fracture to the jawbone at about the deceased’s chin. This was the type of injury which Dr I’Ons said could have been inflicted by the claw end of a crowbar or hammer. As I have said, the expert was of the view that the constellation of injuries and fractures involved at least seven strikes, or “probably more” (258.49T).

51. In cross-examination, Dr I’Ons made it clear that it was not his evidence that the offensive weapon had to be a crowbar or a claw hammer. They were examples of the type of implement which may have been involved, he was not “putting it down to one or the other” (261.10T).

52. Dr I’Ons also agreed that the severe nature of several of the injuries he had described were so significant that they would have likely resulted in instantaneous unconsciousness and death by severe head injury, which would also lead to cardiovascular collapse (261.20T) with relatively rapid cessation of heart beating. The sequalae of this cessation of heart beating would mean that external blood loss would be reduced as compared with situations where a deceased’s heart continues to beat (261.35T).

53. From the whole constellation of the serious injuries to the head of the deceased, Dr I’Ons accepted as consistent that the two pond fractures to the back of the deceased’s head could have occurred from behind and that the frontal injuries could have occurred while the deceased was supine on the ground (262.1-9T). When it was put to him that “the assailant may have struck [the deceased] with a weapon of some kind on the back of his head, or at the top of his head, at the vertex, causing him to collapse, and that when he was on the ground the more frontal injuries were inflicted”, Dr I’Ons responded that this scenario was “entirely possible” (262.15-19T).

The time of death

54. In a supplementary report dated 2 June 2025 (Exhibit 37), Dr I’Ons said that it was not possible to determine the time of death accurately “because of numerous environmental and physical factors that may accelerate or decelerate post-mortem changes”. He opined that those changes, however, “suggest a time frame of 16 to 48 hours from the time of death to the time [the deceased] was received at the mortuary”.

55. I repeat, it is an agreed fact between the parties that the deceased was received at the mortuary at 5:45 am. On Dr I’Ons’ range then, this would put the time of death between 5:45 am on Saturday 3 February 2024 and 1:45 pm on Sunday 4 February 2024. However, from other evidence admitted in the trial, that broad range may be reduced.

56. It is another agreed fact that the deceased answered a telephone call of 69 seconds’ duration at 1:45 pm on 3 February 2024. Moreover, Mrs Peck remembered hearing running water coming from the deceased’s residence after dusk on Saturday evening. While it is not conclusively established, it is the Crown case that the water running from the hose was turned on in an attempt to clean the crime scene of the deceased’s blood. Whoever undertook that task replaced the hose on its hook but neglected to turn off the tap. Clearly, it would have taken a considerable period of time for the water to build up, escape from the deceased’s backyard and accumulate in the backyard of the Peck family residence (which was somewhat downhill from the deceased’s home) to the extent their back lawn became, on Mr Peck’s description, “waterlogged” (60.21T).

57. Another neighbour, Mr Simon Dunne, heard the noise of a lawnmower from the general direction of the deceased’s home at about 1 pm on the Saturday. Mr Dunne’s property shared its rear boundary with the deceased’s home and the home of his neighbour on the southern side. The sound prompted him to get his own lawnmower out to mow his lawn. While Mr Dunne’s estimate of time is unlikely to be precise, it certainly provides, in rough terms, a timeframe for the deceased’s use of his lawnmower.

58. It is known that Mr Peck was not mowing his lawn on Saturday afternoon because he and his wife utilise a lawnmowing service which comes on Fridays. I should say that Mr Peck did not recall hearing the deceased’s lawnmower when he was home on Saturday afternoon. Mr Peck did notice that the deceased’s front yard had been mowed when he attended the premises at or about 6 pm on Sunday.

59. Mr Dunne’s recollection was that the sound of the lawnmower was coming from either the deceased’s or Mr Peck’s place. For the reason I have explained, Mr Peck’s place can be excluded. To my mind, it is very likely that the lawnmower he heard was the deceased’s (142.20T).

60. Despite the evidence I have set out above, I am of the view that the time of death cannot be determined precisely. However, the deceased was most likely killed during daylight hours in the afternoon of Saturday, 3 February 2024; probably in the mid-afternoon.

61. I reach this conclusion because whether or not the deceased mowed his front yard on the Saturday, and he may have, Mr Dunne heard the sound of the lawnmower emitting from the backyard. The crime scene photographs, as I have said, depict two mown pathways about the width of a lawnmower leading to the deceased’s fruit tree and his beehives, as Mr Peck said. It would not have taken him long to cut those paths. And it seems to me to be very likely that he was attacked from behind with a crowbar or a hammer, probably the former for reasons I will explain, and knocked to the ground by the force of the two blows which caused the pond fractures to the back of his head.

62. Given the posture in which his body was found, that is to say, in the supine position, I infer that the deceased was pulling the lawnmower backwards along the path he had just cut when the attack occurred. Given Dr I’Ons’ description of the force necessary to cause the injuries he described, it was clearly a brutal attack and one in which, as the Crown submitted, more force than necessary to kill a man was brought to bear on the deceased’s head in a series of strikes, at least three of which, individually, would have been enough to kill him.

63. After the first two strikes to the back of the deceased’s head and his subsequent collapse to the ground, I infer that whilst unconscious on the ground, a number of blows were struck to the frontal region of his head and face using the same offensive weapon. I favour the possibility that a crowbar was used because of its rounded component and its claw-type feature at one end. No claw hammer as such was found at the premises, but the injury to the chin favours an implement with that characteristic, although according to Dr I’Ons’ evidence, a broad chisel or flattened peg would also have this characteristic.

64. The number of strikes described by Dr I’Ons and the severity of the injuries inflicted strongly suggests something of a frenzied attack upon the deceased in his unconscious state.

The running hose

65. I am somewhat satisfied that the running hose had been turned on by the assailant in an attempt to clean up the crime scene. Although, as Mr Fraser submitted with respect to this clean-up attempt, “it was a pretty poor job” as it was ineffective in removing all evidence of the deceased’s blood, which was evident in crime scene photographs and diagrams.

66. Alternatively, it is possible that the deceased had turned the hose on himself for some purpose before he commenced mowing and forgot to turn it off, but I regard this as much less likely. While the inference is not very strong, it is more likely that the assailant turned the hose on in an attempt to clean the site and neglected to turn it off after hanging it back on the hook. The probative force of this inference on its own is not great, but it need not be to add some weight in a circumstantial case.

The murder weapon

67. There are two crowbars fitting Dr I’Ons description at the premises in the garage on the lower floor. One was located at Marker J, leaning against a bar fridge in the garage. Another crowbar was found hanging about a stepladder in the garage, but cobwebs were attached to it, suggesting it had not been moved in some time. There was also a hammer in the garage, but it had no claw, which on the evidence, and to my mind, rules it out.

68. With respect to the crowbar leaning against the fridge, it must be said that it had no DNA or other forensic evidence on it connecting it with the event. Indeed, it yielded no forensic evidence at all connecting it even to the usual occupants of the home, the deceased and the accused. The Crown submit that the absence of forensic evidence is explicable by the consideration that the accused cleaned the crowbar after the event, in a similar way in which the Crown submits the assailant attempted to clean the crime scene around the body of the deceased. There is a basis in the evidence for this submission in as much as there was a bucket of diluted bleach within the garage on top of a water heater, not far from the crowbar leaning against the fridge.

69. Moreover, it is apparent that probably, as a symptom of his disease, the accused had an obsession with aspects of cleanliness including the eradication of mould from his part of the residence. It was for this reason that he claimed to have bought such copious amounts of bleach and vinegar on a regular basis when he had attracted the attention of police in October 2023.

70. Mr Fraser submits that the argument that the crowbar had been cleaned amounts to speculation. There is no evidence of blood or blood products in the bleach solution in the bucket. While there was a degree of sediment in the bucket, there was nothing else and certainly no expert evidence supporting an inference that the contents of the bucket had been used to clean the crowbar. Mr Fraser also pointed out that there was DNA recovered from the crowbar but it was at too low a level to yield any meaningful result for scientific purposes.

The accused’s boots

71. There were four blood stains found on the work boots worn by the accused when he spoke to police in the early evening of Sunday 4 February 2024, two on each boots. The boots were placed at the backdoor when police knocked and the accused later put them on. The DNA samples taken from those blood stains matched the profile of the deceased. To my mind, this is significant evidence.

72. Mr Fraser pointed to the evidence of Dr I’Ons that the deceased was in his seventies. There was evidence of a minor injury about his hands of a type to which older people are susceptible, and the blood staining could have been deposited accidently on the boots of the accused during some other prior interaction with his father. Looked at in isolation, this may be possible and it is not Mr Fraser’s role to persuade me. I remind myself that the burden of proof lies on the Crown on this issue at all times.

73. On the other hand, there were a number of blood stains across the back patio of the premises, one on the bottom step of the staircase which leads to the back door and one inside the garage between the crowbar and the bucket on the other side of the garage. These, to my mind, seemed consistent with drips from the murder weapon as the assailant walked along the patio after the attack upon the deceased. As I will come to in a moment, the assailant must have ascended the steps to obtain the sheet of fabric with which the upper body of the deceased was covered. Given the number of dripped small blood stains and the spread of them, I consider it much more likely that the blood on the boots of the accused was deposited on them at the same time.

74. I have come to this conclusion notwithstanding the strong argument of Mr Fraser pointing out the apparent thorough forensic investigation which uncovered: no blood stained clothing which may have been worn by the accused if he was the assailant at the time of the assault; and no evidence of any cleaning of any bloodstains on clothing or otherwise within the residence of the accused.

75. In this context, Mr Fraser also referred to the extensive efforts to locate a discarded murder weapon which included emptying a septic tank and examining its contents and conducting a line search, not only of the property, but all the way down the street to a reserve located at the end of the street. It was put to me that the fact that nothing was found despite such extensive efforts would suggest it was more plausible the weapon was carried away by a fleeing, unidentified assailant.

The sheet of fabric placed over the deceased

76. It is accepted that the fabric or sheet covering the deceased was probably placed there by the assailant. From the evidence of Mr Dunne, a sheet of similar appearance had previously been hanging on the top landing of the back stairs; and what appeared to be a blue tarp had been hanging in front of the windows at the same level either to provide shade or for privacy. Mr Dunne noticed the sheet was no longer in place on Sunday afternoon.

77. Evidence of the police body worn video showed that, on the top landing adjacent to the back door, there was a line from which two clips were suspended, and I am invited to draw the inference that the fabric was once hanging from the line by means of those two clips. On the evidence which I have described, I would accept the likelihood of that proposition. The Crown submit that it is much more likely that the deceased’s body would have been covered with that fabric had the assailant been the accused. An unidentified intruder, so the argument runs, was unlikely to have ascended the steps to obtain the sheet for fear of increasing the time in which his or her presence on the property may have been detected.

78. It is also clear that not only did the blood staining on the fabric match the deceased, entirely unsurprisingly, but there was also mixed DNA of the accused and another person (who may have been the deceased) on one corner of the sheet. On the other corner, again there was a mixed contribution from which the accused could not be excluded as the main contributor. The DNA from the minor contributor was not suitable for comparison due the low level.

79. Doubtless, as this fabric was associated with the premises and with the accused as it was apparently hanging from the upper level where he resided, it is not surprising that his DNA, and perhaps also of the deceased, were recovered from it. But it must be possible that the deceased’s DNA was deposited when the sheet or fabric was placed over him. The results also raise the possibility of a third unidentified person, which, again, may support the argument that there is at least a possibility that an unidentified assailant obtained the fabric from the line above the landing and placed it over the deceased.

80. The strong suggestion that the DNA of the accused is on each of two corners of the fabric again creates a strong mental picture of him having retrieved the fabric from where it was suspended, brought it downstairs and spread it out over the deceased holding the corners in that familiar type of spreading motion which is commonplace in everyday life. I am of the view, that the probabilities favour that proposition over that of an unidentified intruder.

81. It should be pointed out that Exhibit 17, a compilation of police video evidence depicts an officer moving or re-adjusting the fabric over the deceased’s body. The officer was wearing gloves but a nearby colleague was not (Ex 17, 21:57-22:10; CSO Johnston, 172.43-173.1T).

The whereabouts of the accused

82. It is the Crown case that the accused was home all day on Saturday 3 February 2024. Only part of this argument is based upon the consideration that police investigations obtained CCTV footage and other evidence detailing his movements on previous days where it was shown the accused was driving his car and attending business premises.

83. Mr Fraser points out that the evidence establishes that there was more than one route by which one could leave the residence by car or on foot which was not covered by the particular CCTV camera which captured the accused’s movements close to home on previous days. For instance, alternative routes included leaving the residence on foot and walking down to the reserve at the bottom of the street. Still the police investigation was thorough and obviously CCTV from local businesses was canvassed and none recovered of the accused away from home on Saturday.

84. Moreover, had he been absent during the assault on the deceased, his father’s death may not have come to his attention given he was known to leave and enter the premises by the front steps and not those located at the rear. Further, while the window of the third bedroom, which contained some of the accused’s possessions, directly overlooked the place where the body of the deceased was lying, there were obstructions placed over or near the window by the accused for his own purposes which obscured the visibility of the backyard.

85. When Constable Simis and Constable Ware arrived at the premises, the former activated his body worn video camera. In the course of their discussion with the accused, Cst Ware asked where the deceased was at that moment, to which the accused replied, “downstairs” where the deceased usually lives. He pointed in the direction of downstairs. When asked whether the deceased had been mowing the lawns, the accused replied, “ah yeah, yeah, I think yesterday he was doing it”. When asked when he last saw the deceased the accused answered, “yesterday”, when he went to retrieve his pet from the front yard, “at the front entrance”.

86. Later during a walkthrough of the accused’s residence, Cst Simis asked:

“Constable Simis: Did you hear your old man doing the lawns at any time?

The accused: Today?

Constable Simis: Any time.

The accused: Yesterday.

Constable Simis: Yesterday and what time do you reckon that was?

The accused: I am not sure possibly afternoon or so.

Constable Simis: So in the afternoon yesterday, you heard him doing the lawns?

The accused: Yeah.”

87. I regard this as a very powerful admission that the accused was at home when his father was mowing the lawns. He made no mention of leaving the premises at any time during the lawnmowing. At that time, police had not formed any belief about the likely time of death. However, his body was with his lawnmower.

88. From this interaction with police, the Crown also relied upon a number of other factors. The first was that I was invited to find from the footage that the accused was studiously not looking in the direction of his father’s body; that when the police asked him to enter the house to look around and the accused was asked, “when was the last time you saw your dad?”, he feigned surprise saying, “ahh. Oh my God”. It is obvious from that and from the next question that he was seeking to convey the impression that he had not seen his father’s supine body in the backyard previously. When asked he said, “that’s the first time I’ve seen him now”. He denied knowing how the body became covered saying “I’ve got no idea this happened to him. That’s shocking, is he alive?”.

89. The Crown point to the consideration that later in the discussion the accused volunteered, “someone killed my… it seems someone killed my dad. I got no idea why or who. I’m shocked”. He was quizzed by police about why he would jump to the conclusion that someone had killed his father.

90. The Crown also relied upon the consideration that the place where the body of the accused’s father lay was visible from the window of the third bedroom and the accused’s denials of having seen the deceased’s body were not believable, given that he was apparently home for extended periods on Saturday and Sunday and his telephone was recharging on the sill of the large window in that bedroom during the police walk-through.

91. Leaving aside what I have identified as the admission, I did not understand the Crown to be relying upon these other factors as consciousness of guilt evidence. Rather, I was invited to find that, in all the circumstances, his responses to those particular questions from police were unreliable and hence I should reject the accused’s account as one that could not possibly be true. It was accepted, of course, in that event, I would put that part of his account to one side when considering the balance of the evidence and whether it established to my actual persuasion beyond reasonable doubt that the accused killed the deceased.

92. Mr Fraser submitted that, given the accused’s Scizophrenia, he was known to immerse himself “in his own world”, as it were. While it was accepted that had he looked out of the bedroom window he would have seen his father’s body, there were coverings which acted as an obstruction to the view outside. This fact coupled with his so-called immersion into his own world would make it less likely that he would have looked out of the window. It was submitted, this immersion might explain why he apparently heard and saw nothing over Saturday and Sunday, 3 to 4 February 2024.

93. It was said that the accused’s expression of shock and disbelief involving, by necessary implication, his denial of responsibility is entirely understandable. And, his jumping to the conclusion that his father had been killed was explicable given the circumstances, including the fact the deceased’s body was covered and police were asking him questions about his knowledge of what happened.

94. As I have stated, I am of the view that the accused’s admission to police that he was at home when his father was mowing the lawn is a very significant one.

95. Dealing with the other circumstances of his questioning by police, one has to bear in mind the applicant’s Schizophrenia and the consideration that, at the time, the accused was receiving treatment under a CTO and under the effects of antipsychotic medication. These matters may offer some explanation for his presentation and seemingly contrived responses, which I do not regard, of themselves, as lending support to the Crown circumstantial case. However, I find it hard to believe that the accused was unaware of the presence of his father’s body below the third bedroom window notwithstanding his tendency to immersion in his own world. And while I do not accept his responses as evidence of guilt, I will put his account, other than his admission, to one side and consider whether the Crown have proved its case only by reference to evidence I actually accept.

The emails and notes of the accused

96. A number of emails and other notes written by the accused were placed in evidence. It must be borne in mind that part of the history of the symptoms of the accused’s disease is that he can become aggressive either when he is not compliant with his medication or his symptoms are worse. There is also the evidence to which I have already referred of his attempts to hide or downplay his symptoms. In this context, the Crown rely upon threats made in relation to his father in emails and notes retrieved from the premises. I repeat that, at least as at October 2023, the deceased appears to have been supportive and indeed protective of the accused.

97. An email of 20 October 2021 expresses resentment because the deceased called either community mental health or the police to attempt to enforce compliance with the CTO. He said, “I hate you bitch”. And he referred to the “Big Hero 6”, whom I take to be him, against “Big Villain 6”, whom I take to be his father.

98. Another email which was retrieved was of 1 May 2023 to his sister and suggested that he was going to complain to the mental health authorities about his father, apparently for the purpose of them taking his father away “for a long time”.

99. Another note spoke of punishing his father, although this was admittedly undated. What is written does seem to be the product of a disordered mind. The accused wrote:

“I remember how to fight my dad (sic) I knocked him down, and a crowd of strangers were rooting for me and were happy when I woke up afterwards. I wanted to give my dad a permanent knock down, as I thought that’s what heaven wanted. I hated my dad so much that I warned him you send me to Ward 22 the third time and I will do something bad to you.”

In the note the accused prefaced these comments by saying, “I didn’t do anything it was just a verbal threat”.

100. These notes do express strong, negative feelings towards the deceased, but one cannot be satisfied that they were written in close proximity to his father’s death.

101. From the Cellebrite extraction report forming part of the Agreed Facts (Exhibit 32) it is clear that part of the accused’s symptomatology is adherence to deluded religious beliefs focusing on God’s judgment. For instance, in an email he wrote:

“Almighty God will hammer, hammer! Time his judgment on earth, I fearfully say. Just you wait. Wait in fear I will fearfully say. And amen.

Mess with us and I will shatter you like subzero. You not supposed to mess with no climate, no change.”

102. While these writings do not seem to be directed in relation to his father they do raise questions about the state of his disease. In my mind, his writings lend weight to the suggestion that he had become adept at covering his symptoms during his interactions with the community mental health workers including by his adoption of mutism so far as they were concerned, which was not evident when he dealt with others, such as the police on 4 February 2024.

Decision

103. Looking at all of the circumstances established by the evidence, to my satisfaction and as a whole, I am satisfied beyond reasonable doubt that, by his voluntary act of attacking the deceased with a crowbar from behind while the deceased was mowing the lawn, the accused caused the deceased’s death.

104. I am satisfied that the attack took place in or about the mid-afternoon of 3 February 2024. I find that the accused with great force first struck the deceased twice just below the vortex of his head inducing his father’s immediate loss of consciousness and collapse. While his father was on the ground supine, I am satisfied that the evidence establishes that the accused continued the attack with some ferocity, inflicting the severe fracture to the frontal bone of the skull and the associated fractures in the parietal and temporal bones. He continued to strike his father causing a multitude of other disfiguring injuries to his father’s face.

105. On the basis of Dr I’Ons evidence, I accept that from start to finish the accused struck his father at least seven times about the head. The circumstances upon which I rely are that the accused was home alone with his father on the afternoon of 3 February 2024. He was aware his father was mowing the grass.

106. While a motive for the killing is unclear and not entirely rational, it was in my judgment a product of his diseased mind and may have had some connection to the resentment he felt, from time to time, towards the role his father played in requiring him to undergo treatment for his Schizophrenia; a diagnosis he did not accept. His previous undated notes do suggest a deep seated and violently expressed resentment towards his father. While he had previously asserted that such expressions were mere verbal threats, given the concern about the deterioration of his disease, notwithstanding treatment, at the end of January 2024, I am satisfied that the time came when he acted upon his resentment in the manner he had previously fantasised about under the burden of the symptoms of his disease.

107. It is clear that he was adept at and went to great lengths to hide the severity of his symptoms from the community mental health personnel responsible for his treatment and his condition at that time may have been more serious than even the treating doctors suspected.

108. I find that the blood found on his boots is that of the deceased and it was deposited on the boots either during the accused’s attack upon him or in the immediate aftermath while he still held the crowbar in his hand and paced up and down the patio outside the lower level of the residence. While the evidence is not entirely clear, I am satisfied he cleaned the crowbar leaning against the fridge either by use of the bucket of bleach on top of the water heater in the garage or otherwise by the bleach he had in ample supply. The photographs show empty bleach containers in the recycling bin and bleach containers distributed around the upper dwelling.

109. Being home alone with his father, of course, gave the accused the opportunity to attack him. Accepting that crowbars, hammers and other tools are ordinary domestic equipment, he had the means to carry out the brutal attack which caused his father’s death.

110. As part of the accused’s strange or bizarre attire, he usually wore surgical or other rubber gloves which accounts for the absence of any forensic evidence such as fingerprints or his DNA on the crowbar.

111. I am satisfied too that the accused retrieved the sheet of fabric from where it was hanging on the upper landing and placed it over the deceased to cover his upper body, and in particular, his face which was very badly disfigured. Given the likelihood that he was wearing gloves (as was his habit at that time), his DNA on the fabric may well have been deposited there on another prior occasion.

112. The unidentified DNA contribution identified on the fabric was probably that of a police officer given the evidence before me of the fabric being moved. The video shows an officer wearing gloves, but other nearby officers were not and this adds the real prospect of contamination of the forensic evidence. I consider this to be a much more likely circumstance than the work of an unidentified intruder.

113. In coming to this conclusion, I have not relied on what must be his false denials of responsibility when spoken to by Cst Simis and Cst Ware in the early evening of 4 February 2024; I have merely put them to one side and focused on the other evidence to which I have referred and accepted.

114. I am satisfied that the only rational inference available from the whole of the circumstances which I accept have been established by evidence is that the accused is the assailant who killed the deceased. The hypothesis consistent with innocence is said to be that, as I have said, an as yet unidentified intruder, presumably armed with his own crowbar or hammer, entered the premises through the northern-side passage when the deceased had his back to him and attacked him from behind with the weapon. On this hypothesis, the intruder made the attempt to clean up the crime scene using the hose which he left on and exposed himself to apprehension by climbing the stairs and removing the fabric from where it was hung to place over the body of the deceased. All of this while the accused was at home.

115. With respect to this formulation, there is simply no evidence whatsoever of any intrusion of any third person into the premises that afternoon. The only evidence of a third person having any involvement in the crime scene is the minor contribution of the DNA on one corner of the fabric. That seems to be adequately explained by the evidence that the fabric had been accidentally moved by investigating police during the forensic examination. Even if that is not so, it does not constitute evidence of an intruder at the relevant time.

116. Moreover, there is no evidence of the deceased having any enemies or of any person having any grudge against him. The idea that an anonymous intruder at random entered the premises armed for the purpose of attacking the deceased, in my judgment, has no foundation in the evidence and falls into the category of, at its highest, an “anything is possible” hypothesis, and to that extent does not rise to the level of a reasonable possibility. It amounts to no more than speculation. While there may be aspects of the evidence which are not capable of a clear resolution, they are not such as to give rise in my mind to a reasonable doubt.

117. Having reached this conclusion, it is now necessary for me to consider whether the mental health impairment defence has been established. It is necessary for me to return to some matters of law before expressing my conclusions about that matter.

Legal principles concerning mental health impairment defence

118. The mental health impairment defence, in its modern expression, is contained in s 28 of the MHCIFP Act. Section 30 MHCIFP Act provides for what is referred to as a “special verdict” of act proven but not criminally responsible if the accused establishes the mental impairment defence on the balance of probabilities.

119. It is important to understand that the legal consequences which follow a special verdict “are quite different from those which follow a plain verdict of not guilty on the ground that [the accused] did not do the things charged”: The King v Porter (1933) 55 CLR 182; [1933] HCA 1 (Porter) at 185. In the event I return a special verdict, the accused will not be “completely free” to re-enter the community as it were. Rather, if I arrive at this finding, I am empowered to order that the defendant be “detained in the place and manner that the court thinks fit until released by due process at law”: s 33(1)(b) MHICFP Act. It is important to understand that I am not authorised to release the accused into the community unless I am satisfied that his safety and the safety of any member of the public will not be seriously endangered by his release: s 33(2) MHICFP Act.

120. A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal (MHRT). The MHRT is composed of a president who is either a current or former judicial officer, a second member who is either a psychiatrist or psychologist, and the third is a person drawn from the community with appropriate qualifications and experience. Importantly, while under supervision, the MHRT would review his case at least every six months and make orders for his continued detention, care and appropriate treatment in a hospital or prison. The MHRT may not release the accused unless it is satisfied, as required by law, that his safety and the safety of members of the public can be ensured, and it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about the accused’s possible release.

121. Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility. As Dixon J, (as he then was) pointed out in Porter at p 187:

“[The criminal law] attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person’s property, capacity to make a will, and the like …”

122. Section 28(1) of the MHICFP Act is put in the following terms:

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).

…

123. In the present case and having regard to the expert evidence of Dr Martin and Professor Greenberg, there is no doubt that the accused knew the nature and quality of his act. The question for me is whether he did not know that the act was wrong. “Wrong” in this context means morally rather than legally wrong. A person will be found to not know that his or her act was wrong if “the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong”: s 28(1)(b) MHICFP Act.

124. In Porter, Dixon J described the issue in these terms (at pp 189-190):

“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong … what is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

Determination of the mental health impairment defence

125. While all questions of fact are matters for my judgment, it is of significance that both Dr Martin and Professor Greenberg agree that the accused suffers from a serious mental health impairment by reason of the disease of Schizophrenia that had the effect on him that he did not know the act of killing his father was wrong in the sense I have explained. It is not without significance that the experienced counsel in the trial, both prosecutor and defender agree that the evidence establishes the mental health impairment defence to the requisite standard of more likely than not.

126. While I must make my own mind up about these things, I would certainly need to have a good reason to depart from the shared opinion of the only two forensic psychiatrists who have provided evidence in the case. It is quite clear on the whole of the evidence in this case that the accused was first diagnosed with Schizophrenia in 2001. He was first hospitalised in 2004 and had a further four psychiatric admissions for relapses of his mental illness between 2004 and 2009. There were further admissions in later years. He has been under treatment ever since diagnosis, although he resents the treatment and attempts to avoid it.

127. The accused has been subject to a CTO or was supposed to have been so subject since 2009. There may have been a further admission in 2017 and again in 2019. In 2019, he demonstrated persecutory delusions against his father (that were considered to be false), overvalued ideas with respect to his personal hygiene and other symptoms including obsessive compulsive disorder features. His symptoms did not improve with oral antipsychotic medication. He was released from hospital on a CTO.

128. He left the country for China on 29 April 2019, returning in time for an appointment on 3 June 2019. On this occasion, he was abusive and verbally aggressive. Due to his non-compliance, the Community Mental Health team applied for another CTO.

129. There was a further deterioration in December 2019 and another admission to hospital. He was not compliant with his treatment. He had travelled to China again before the onset of the worldwide COVID-19 pandemic and during the period that he was unable to return to Australia that he was not receiving psychiatric treatment. When he eventually returned to this country from China he was demonstrating bizarre and disorganised behaviour and he was refusing his medication.

130. It is clear that over the long course of the accused’s condition, except when he is subject to a CTO, he has refused the administration of his medication. Even with a CTO in place, he is non-cooperative with those responsible for his treatment. As I have already pointed out, immediately prior to the accused killing his father, his condition was deteriorating, which he was attempting to hide from those treating him.

131. Having reviewed the extensive clinical material and examined the accused, Professor Greenberg is of the opinion that the accused qualifies for the diagnosis of having a chronic, treatment-resistant Schizophrenic disorder which is currently in partial remission only due to the treatment he is receiving in custody.

132. In addition to his Schizophrenia, Professor Greenberg opined the accused has higher order neurocognitive deficits which represent a core symptom of Schizophrenia with verbal memory usually one of the most important domains. Professor Greenberg says that his working memory processing speeds, reasoning, problem solving and social cognition were likely to be affected. These neuro-cognitive impairments are generally only modestly affected by traditional anti-psychotic medication. From his consideration of the body worn video footage, Professor Greenberg thought it likely that the accused had residual active symptoms of psychosis, but was not overtly psychotic to the extent where he did not know the nature and quality of his actions.

133. However, Professor Greenberg went on to say that, on balance, he was of the opinion that the accused had a mental health impairment which had the effect that he did not know that the act of killing his father was wrong in the sense I have discussed above. At the time it was likely that he was suffering the effects of underlying residual or sub-clinical, treatment-resistant active psychotic symptoms.

134. From the accused’s presentation at clinical interviews with Dr Martin and his consideration of the supporting collateral clinical material, Dr Martin formed the view that the accused had a longstanding history of Schizophrenia with impaired insight and poor adherence to anti-psychotic treatment, a history of delusional thought and formal thought disorder as well as apparent behavioural disturbance. From the evidence of family members, he was of the view that the accused had a severe and chronic mental illness. His view was that the written accounts of the accused, some of which I have referred to in this judgment, were firsthand evidence of psychosis.

135. He regarded the accused appearance in the body worn video footage as consistent with a person with chronic mental illness manifesting in severely impaired judgment. Dr Martin considered it highly likely that the accused was suffering underlying features of psychosis with delusional thoughts preceding and subsequent to the attack on his father. Dr Martin considered the accused’s behaviour as “highly inappropriate and frankly bizarre, commensurate with a person suffering from chronic mental illness”. Dr Martin concluded as follows:

“A person suffering psychosis is more likely to be prone to significant emotional dysregulation such as extreme hostility and even rage, because of frontal executive dysfunction … and where emotional or physical responses are mediated by bizarre thought processes, or perceptional abnormalities such as hearing voices, it is well known that paranoia, for instance, can lead to the perception of threat resulting in inappropriate attempts at self-defence.”

136. While Dr Martin was also of the view that the accused knew the nature of his act, he said that the accused’s mental illness, causing mental health impairment was probably the most significant factor relevant to the alleged violence. He was of the view that the accused’s capacity to reason with a moderate degree of sense and composure would have likely been significantly impaired.

137. I am satisfied on the balance of probabilities that by reason of his chronic Schizophrenia, the accused did not know that his act of killing his father was wrong in the legal sense I have discussed. And by force of s 30 MHCIFP Act, I am required to bring in a special verdict of act proven, but not criminally responsible.

Orders

138. My orders are as follows:

139. On the charge contained in the indictment that Milenko (Gobesan) Snjegota murdered his father, Vitomir Snjegota I return the special verdict of act proven, but not criminally responsible.

140. Under s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), I refer the accused to the Mental Health Review Tribunal (MHRT) for its review of the accused as soon as practicable.

141. Direct the Registrar to provide the Registrar of the MHRT with a copy of my reasons, the report of Professor David Greenberg of 21 September 2025, the three reports of Dr Adam Martin of 6 June 2024, 13 November 2024 and 29 May 2025 and the Victim Impact Statement of Silvana Snjegota.

142. Under s 33(1)(b) of the Act, order that the accused be detained in his current place and manner pending review by the MHRT and thereafter in at such place and in such manner as the MHRT may determine until the accused is released by due process of law.

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Amendments

12 December 2025

Cover Sheet - Hearing dates - amend November date to read 27 November