R v Stojic

Background

1. By way of background, the circumstances in which the accused was originally found unfit to be tried and subsequently fit to be tried in relation to the charges presently before the Court are set out in the Court's judgments delivered on 8 December 2018, R v Stojic [2018] NSWSC 1893, and on 4 March 2020, R v Stojic [2020] NSWSC 170. It is not necessary to repeat that material here.

The trial

1. On arraignment, Mr Stojic pleaded not guilty to all counts.
2. Mr Stojic and the prosecutor agreed to his being tried by judge alone. Accordingly under s 132(2) of the Criminal Procedure Act 1986 (NSW), the trial took place before me by way of a trial by Judge alone, on 1, 3 and 4 June 2020.
3. Under s 133 of the Criminal Procedure Act, in such a case: 1. I may make any finding that could have been made by a jury on the question of the guilt of the accused person; 2. any such finding has, for all purposes, the same effect as a verdict of a jury; 3. my judgment must include the principles of law I have applied and the findings of fact on which I have relied; and 4. if any Act or law requires a warning to be given to a jury in any such case, I am to take the warning into account in dealing with the matter.

The Crown case in brief outline

1. The Crown's case on the charge of murder was circumstantial. In addition to the evidence that the deceased died of gunshot wounds inflicted when he was in his campervan in the early morning of 26 July 2017, the Crown relied principally on evidence to the following effect: 1. 15 days prior to the death of the deceased, the accused was seen with a .32 calibre pistol which was the same calibre as the weapon which was used to shoot the deceased; 2. the accused was the owner of the Statewide Office Furniture business, had keys to gain access to the premises and sometimes resided in the premises; 3. CCTV footage showed a person walking from the premises of Statewide Office Furniture towards the location of the deceased's campervan, which was in a nearby parking area, and walking back again soon after, both at about the time of the deceased's 000 call and at about the time the deceased was shot; 4. telephone records established the accused's mobile telephone was in the vicinity of Statewide Office Furniture's premises and the campervan at the relevant times; 5. the accused said that there was a dead body in the campervan after the shooting and prior to the deceased's body being located and he made other comments indicating knowledge of what occurred prior to that being otherwise disclosed; 6. the accused made admissions to an employee of Statewide Office Furniture, Mr Orr, to the effect that he shot the deceased; and 7. inside the accused's room at Statewide Office Furniture's premises, police located one .32 calibre bullet and a number of fired shells of the same calibre.
2. In relation to the firearms and weapons charges, the Crown relied primarily on the evidence of the results of the execution of a search warrant at the premises of Statewide Office Furniture, and certificates as to the accused's lack of a licence or permit and as to the firearm being unregistered as well as forensic evidence relating to DNA on relevant items.
3. At this point it should be noted that, during final addresses, the Crown conceded that there were insurmountable difficulties with proof to the requisite standard of the elements of the charges relating to possession of a "detachable box magazine", which are the subject of counts 4, 5, 6, 7, 8 and 9. There was no dispute that in respect of these counts the appropriate verdict is not guilty. Having reviewed the evidence with the assistance of a note provided, by leave, by counsel for the accused, I am satisfied that the Crown's concession was properly made and that verdicts of not guilty should be returned in respect of those counts.

The evidence

1. The Crown approached the evidence in this matter by tendering, without objection, two folders of documents. [1] This material included: 1. a statement from a nearby resident who heard gunshots on the night in question; 2. a statement from a person who worked at a nearby business in Garema Circuit, Kingsgrove concerning events on the day the accused was arrested involving the accused near the location of the shooting; 3. seven statements from workmates and supervisors of the deceased, Mr Jardine, concerning his employment and what happened before and after he was shot; 4. seven statements from employees of Statewide Office Furniture concerning the business and its premises in Garema Circuit and the activities and statements of the accused before and after the shooting; 5. two statements from friends of the accused concerning his background and his conduct and statements before and after the shooting; 6. 18 statements from police officers concerning their attendance at the scene of the shooting in the car parking area in Garema Circuit and their investigations, together with relevant photographs and annexures; 7. seven statements from crime scene, forensics and ballistics experts, together with the interim cause of death report, photographs and maps; 8. a transcript of Mr Jardine's 000 call made on the night he was shot; 9. a transcript of the electronically recorded interview, or ERISP, given by the accused at the time of his arrest on 29 July 2017; 10. the autopsy report and verification of death form in relation to Mr Jardine; 11. five certificates under s 87 of the Firearms Act 1996 (NSW) concerning whether the accused held relevant licences or permits in relation to the firearms and weapons offences and whether the firearm was registered; 12. records relating to the use of the mobile telephones of the accused and the deceased relied upon by the police witnesses in order, among other things, to identify the cell towers with which the telephones were communicating during the hours either side of the shooting of the deceased; 13. a report of Prof Greenberg, forensic psychiatrist, dated 17 November 2019; 14. a transcript of the 000 call made by one of Mr Jardine's workmates on the morning of 26 July 2017; and 15. a transcript of the electronically recorded interview or ERISP given by Mr Alam, who was driving the accused at the time of his arrest.
2. The Crown also tendered, without objection; 1. a compilation of CCTV footage taken from a number of premises around Garema Circuit which showed, among other things, the front of the premises of Statewide Office Furniture in the early morning of 26 July 2017, before and after the deceased was shot. One version of the footage was, in some cases, marked up to draw attention to the particular areas of interest depicted on the footage; [2] and 2. a certificate from Transport for NSW to establish that the registered operator of a white VW station wagon, DAT 98T, was Statewide Office Furniture Pty Ltd. [3]
3. With the agreement of the parties, I viewed that CCTV footage in chambers.
4. Prof Greenberg was the only witness called to give oral evidence in the prosecution case. He was cross-examined by Mr Dhanji of Senior Counsel, who appeared with Mr Clark, for the accused. Prof Greenberg's evidence was consistent with, and expanded slightly upon, what was in his report of 17 November 2019.
5. Mr Dhanji SC tendered, without objection, two reports from Dr Stephen Allnutt, forensic psychiatrist, dated 27 August 2019 and 20 January 2020. [4]
6. There was no other evidence in the defence case.

Legal Principles

1. In reaching my verdicts in these proceedings, I have applied the following legal principles.

Presumption of Innocence

1. The accused is not required to prove his innocence. He is presumed to be innocent unless the prosecution proves that the offences charged were committed.

Onus and Standard of Proof

1. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. Putting to one side for the moment the defence of mental illness, in relation to the offences charged, the onus remains on the Crown from beginning to end.
2. The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its important witnesses said in evidence. The matters that the Crown needs to establish beyond reasonable doubt are the essential legal ingredients or elements of each of the offences charged.
3. When, as in this case, an accused relies on the defence of mental illness, [5] there is an onus on the accused to prove that he is not criminally responsible for his acts because of his mental illness. To this extent, there is an onus on the accused in this matter, but the standard of proof is the lesser civil standard, on the balance of probabilities. [6] I shall discuss the defence of mental illness in more detail later.
4. That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter.

Circumstantial evidence

1. The prosecution case in relation to the murder charge is a circumstantial one. In this situation, I may draw reasonable inferences from the facts established on the evidence. However in doing so, I must first be satisfied of those primary facts. I need not be satisfied of the primary facts beyond reasonable doubt. There is no particular standard of proof to be applied to the individual items of evidence. Rather, it is the combination of facts or evidence that may lead me to infer the existence of facts that are not, or cannot, be proved by direct evidence.
2. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole rather than individually or in isolation. It also depends on whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I have approached the circumstantial case in the present matter by considering and weighing, as a whole, all the facts I have found established by the evidence.
3. Considering all the facts I have found together as a whole, I am to determine whether I can conclude from those facts that the accused is guilty of the offence charged beyond reasonable doubt, by a logical and rational process of reasoning, not mere speculation, conjecture or supposition.
4. When it comes to drawing the ultimate inference of guilt, I must be satisfied that the inference of the accused's guilt is a reasonable one to draw from the facts found and that it is the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole. If there is any other reasonable conclusion open on those facts that is inconsistent with the accused's guilt, then the Crown's circumstantial case will have failed.

Witnesses and Fact Finding

1. In the present case, none of the non-expert witnesses was cross examined and there was no dispute of substance in relation to any of evidence in their statements. I am entitled to accept part of a witness' evidence and reject other parts. Nonetheless, although there were minor discrepancies between the evidence and Mr Orr corrected some of his evidence in an earlier statement in a later statement, I did not find that I had any reason to reject any significant part of the evidence of the non-expert witnesses.

Expert Evidence

1. In the present case, the expert evidence relevantly included: 1. evidence from a ballistics expert as to observations at the scene and the identification of firearms, ammunition and ammunition components; 2. evidence from fingerprint and DNA experts as to the results of DNA testing and fingerprinting; and 3. expert evidence of the two forensic psychiatrists, Prof Greenberg and Dr Allnutt, in relation to the accused's mental state at and around the time of the shooting and the defence of mental illness. Prof Greenberg was the only witness who gave oral evidence and who was cross examined.
2. None of the expert evidence was challenged. In particular, Prof Greenberg's evidence was not challenged in cross examination and there were no differences of substance between the opinions of the two psychiatrists.
3. In relation to all of the expert evidence, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that did not accord with what I have found to have been proved on the evidence, if the experts were not briefed with all relevant material, if their conclusions were not adequately explained in the reasoning in their reports or if there were some reason to doubt that the witnesses had relevant expertise. In the present case, however, the experts' opinions were supported by the evidence, which I accept. There was no suggestion that they did not have access to the necessary information when forming their opinions. Their reasoning, by which they reached their conclusions, was adequately exposed in their reports and there was no issue that they lacked relevant expertise. As to the psychiatric evidence, in particular, it is well established that if medical evidence relating to the issue of mental illness is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it. [7] There was no other such material.

What the Crown has to Prove: Essential Elements

1. The essential elements of the murder charge, which the Crown must prove beyond reasonable doubt, are: 1. the accused caused the death of Mr Jardine; 2. this was by means of a voluntary or deliberate act of the accused; and 3. the act was done with an intention to kill or to inflict grievous bodily harm.
2. The essential elements of the charge of possessing a prohibited firearm without a licence or permit, which the Crown must prove beyond reasonable doubt, are: 1. the accused possessed the firearm; 2. the firearm was a prohibited firearm; and 3. the accused was not permitted by permit or licence to possess the firearm.
3. The essential elements of the charge of possessing an unregistered prohibited firearm, which the Crown must prove beyond reasonable doubt, are: 1. the accused possessed the firearm; 2. the firearm was a prohibited firearm; and 3. the firearm was unregistered.

Possession

1. The essence of the relevant concept of possession is that, at the relevant time, a person intentionally has control over the object in question. This involves the person having the right to exclude other people from it. A person may have the required control alone or jointly with some other person or persons. In the case of joint possession, the person and the other person or persons must have the right to exclude other people from the object in question.
2. It is not necessary for a person to have something physically with them before the law says that the person has it in their possession. Further, a person does not need to own something in order to possess it. One can possess something temporarily, or for some limited purpose. For example, if a person has a television at home, that person will be regarded by the law as having possession of the television, even when the person is not at home. Further, it does not matter whether the person owns the television, is renting it from a rental company or is minding it for a friend for a few weeks, the television is in the person's possession.
3. Possession involves intentionally having control so that, if an object has been slipped into a person's belongings or premises unknown to the person, the person is not regarded as having possession of it in law, even though it may be under the person's control.

Defence of mental illness

1. Where the defence of mental illness is raised, it is necessary first to consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts. [8]
2. The principle to be applied is that persons are presumed to be sane, and to possess a sufficient degree of reason to be responsible for their crimes, until the contrary is proved. To establish a defence on the ground of mental illness in this case, it must be clearly proved that, at the time of the committing of the acts, the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the acts he was doing; or, if the accused did know their nature and quality, that the accused did not know that the acts were wrong. [9]
3. In this context, "disease of the mind" means "mental illness", and a temporary disorder or disturbance of an otherwise healthy mind, that is not prone to recur and is caused by external factors, is not to be regarded as disease of the mind. [10]
4. It may be concluded that an accused did not know that what was done was wrong if, as a result of mental illness, the accused could not reason about the matter with a moderate degree of sense and composure and, further, "wrong" in this context is to be judged according to the everyday standards of reasonable people. [11]
5. In summary, for the defence of mental illness to be available to Mr Stojic in this case, he must establish on the balance of probabilities that, as a result of a defect of reason arising from mental illness: 1. he did not appreciate the nature and quality of the physical acts involved in shooting Mr Jardine or possessing an unregistered prohibited firearm without a permit or licence; or 2. he did not know that those acts were wrong, judged according to the everyday standards of reasonable people.
6. Section 38 of the MHFP Act which provides for the special verdict of not guilty by reason of mental illness is in these terms: "38 Special verdict (1) If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness."
7. There are consequences that flow from the return of a special verdict under s 38 of the MHFP Act, as provided in ss 38A and 39, and in Div 2 of Pt 5 of that Act. In reaching my decision, I have taken into account these matters, including the existence and composition of the Mental Health Review Tribunal and its relevant functions.

Findings

1. None of the evidence was challenged during the hearing nor was there any issue as to what had occurred. Apart from minor discrepancies such as different witnesses' recollections of the same conversation and corrections of previous inaccuracies, the evidence as a whole was credible and consistent. I have no reason not to accept generally, and I do accept, the evidence contained in the witness statements from the lay, police and expert witnesses, including the medical evidence concerning Mr Jardine's injuries and death, and the psychiatric evidence concerning the accused's mental state.
2. On the basis of all of the evidence viewed as a whole, my relevant findings are as follows.

The accused's background

1. In 2017 Mr Stojic was the owner and director of a business known as Statewide Office Furniture, which had a factory, warehouse and administrative offices in Garema Circuit, Kingsgrove, NSW. The business had about 20 to 30 employees at Kingsgrove but only five persons (the accused, Ms Georgia Armstrong, Mr Michael Orr, Ms Amanda Vaughan and Mr Darius Gakas) worked in the office area.
2. Statewide Office Furniture's premises consisted of a three level building, including the garage downstairs. Access was through a gated entrance to the driveway. Up a short set of stairs from the driveway was the front door which opened into a foyer, in which there was a set of stairs up to the office area. There was a door to the left which led to the factory floor and loading dock, and there was also a set of stairs which led down to the garage. The accused kept a number of cars in the garage.
3. The only persons who had keys to gain access to Statewide Office Furniture's premises were the accused, Ms Armstrong and Mr Chen but Mr Chen only had access to the warehouse area and not the office area.
4. The office area included three offices on the side that faced the street and, on the other side, the accused's private room together with other facilities. Only the accused had a key to his private room. In about early July 2017, Mr Coumbiadis, a friend of the accused, helped him move into Statewide Office Furniture's premises because the accused said it was too expensive to rent elsewhere. In his private room, Mr Stojic had a bed, lounge, coffee table, shelving, a metal locker and personal belongings. Around 26 July 2017, the accused was effectively using that room as his place of residence.

Previous indications of the accused's delusional beliefs

1. After Mr Orr took up a managerial role in early 2017 and before 26 July 2017, he had conversations with the accused in which the accused said that he was part of a secret order called "The Queen's Guard" which was responsible for protecting Australia from the Jesuit General and the evils of the Vatican. He told Mr Orr that the Queen and the Vatican were at war and that he had to clear a variety of cells (like safe houses) full of evil paedophilic occult worshippers. He claimed to have had dealings with various types of people including men of power who could kill with a thought and Mexican cartels who had kidnapped and raped his wife. He also said that he had trained generals and briefed high-ranking military officials on the existence of the occult and that he was under siege from all sides. He claimed that he had stopped Australia from being attacked by foreign powers approximately 30 times and was in training for one final mission.
2. Prior to July 2017, the accused had also told Ms Armstrong that he was the preferred bodyguard of Princess Diana, that he knew Prince Harry and that he had his own regiment and when he was driving on the road 20 other cars would be watching him because he was protected. He also said he worked for the CIA or something similar and that his family worked for ASIO.
3. During the period between about May 2015 and June 2017, the accused told Ms Vaughan that the Queen had a private plane on standby at Bankstown Airport in case anything went wrong and that every woman he had gotten close to had been raped. He also told her that he had a military whiteout on his record which meant that if police looked him up there were things whited out because they were too "high class". He tried to convince Ms Vaughan that he was Prince Harry's primary and preferred bodyguard. He also said that at any given moment in time there were at least 90 operatives on the road around him watching him. He said this was part of his regiment.
4. The accused had made similar statements to his friend Mr Herrera concerning secret missions for the Queen and having to protect Prince Harry.
5. During early July 2017, Mr Coumbiadis noticed that the accused had become suspicious of cars parked out in front of the premises and the accused told him: "They are tunnelling under the factory to get to me". Mr Coumbiadis observed that, about a week before 26 July 2017, the accused was living at the Statewide Office Furniture premises by himself.

Previous incidents involving handguns

1. In about May 2017, while the accused was in Ms Armstrong's office he pulled out a pewter coloured handgun and aimed at the window. In the process of doing so a gold coloured bullet fell onto the ground. About three weeks later, the accused was in Ms Armstrong's office discussing something with her when Ms Armstrong saw a black coloured handgun in front of him but he quickly removed it.
2. Ms Vaughan also observed the accused pull a small black handgun out in the office and point it towards Ms Armstrong. When Ms Vaughan confronted the accused about it the next day he said that he had special clearances and the Queen's permission to carry the gun.
3. On 11 July 2017, Ms Vaughan drove the accused, at his request, to Tregear, a Sydney suburb. As the accused was getting out of the car Ms Vaughan heard a clunk from the passenger door. The accused walked down the street and after he was out of sight Ms Vaughan looked into the passenger door storage console and saw a black coloured handgun. She took two photographs of the gun and sent a text message to Ms Armstrong. The accused returned to the vehicle and Ms Vaughan drove back to the office. The next day Ms Vaughan confronted the accused about the handgun and he initially denied any knowledge but later said that he had the gun because it was a federal or national secret and if Ms Vaughan repeated it to anyone she would be jeopardising the country's safety.
4. I accept, based on the evidence of the ballistics expert, Crime Scene Officer Preece, that the firearm shown in the photographs taken by Ms Vaughan on that occasion was a 7.65 (.32 Automatic) Walther model 4 self-loading pistol with a calibre of .32 inches.

The deceased's background

1. Mr Brett Jardine was a miner who had worked with and been a friend of Mr Paul Holloway for about 17 years. On 25 June 2017, Mr Jardine travelled from Victoria to Sydney in order to commence work the next day as a tunneller and front end loader operator for CPB Contractors, whose office premises were also located at Garema Circuit, Kingsgrove. Mr Jardine's work related to the construction of WestConnex. On the same day, Mr Aaron Fabien also started work with CPB and Mr Jardine and Mr Fabien became friends.
2. Between 25 June 2017 and 20 July 2017, Mr Jardine stayed with Mr Holloway and two other workers in a three bedroom apartment in Mascot.
3. On about 19 July 2017, Mr Jardine purchased a campervan. On 20 July 2017, he moved out of Mr Holloway's unit and into the campervan where he intended to live. He parked the van in the Garema Circuit carpark, which had been designated as a carpark where WestConnex workers could park their vehicles.
4. Garema Circuit, as its designation indicates, is in the shape of an elongated oval running generally north-south. The carpark extends east-west between Garema Circuit on one side to Garema Circuit on the other side. The carpark has marked spaces for about 250 to 300 vehicles. Statewide Office Furniture's premises face east onto Garema Circuit and the southern boundary of the premises formed part of the northern side of the carpark at its eastern end. As a result, a person could walk from Statewide Office Furniture's premises to the carpark by turning right and directly into the eastern end of the carpark or by turning left and walking around Garema Circuit to the western end of the carpark.

25 July 2017

1. At about 5:00 PM on Tuesday, 25 July 2017 Ms Armstrong, Mr Orr and Ms Vaughan locked the offices, went downstairs, checked that the lights were off, checked that the internal door leading to the garage was locked with a bolt, locked the front door, closed the gates and left the premises of Statewide Office Furniture.
2. On that same evening, Mr Jardine attempted to organise to have a meal with Mr Fabien, but at about 9:00 PM Mr Fabien sent a text message to Mr Jardine letting him know that he was still at the gym and was going to go home instead. Mr Jardine replied "Ok". Mr Fabien had no further communication with Mr Jardine after that message.

The early morning of 26 July 2017

1. On Wednesday, 26 July 2017 at 12:26 AM, CCTV from the premises opposite those of Statewide Office Furniture captured a light coloured vehicle pull into the driveway of Statewide Office Furniture and the driveway gate was opened. Eventually the vehicle drove down into the building after the gate to the basement or garage area was opened. At 12:32 AM, a light was turned on inside the warehouse and a person can be seen inside. At 12:40 AM, the light inside the warehouse was turned off but about two minutes later the light in the front foyer of Statewide Office Furniture's premises was turned on.
2. At about 2:26 AM, CCTV captured a light inside the foyer area being turned on again and a person can be seen inside then walking out of the building and walking towards the left (being the right of the picture). Two minutes later the person is captured on CCTV walking past other premises in Garema Circuit.
3. At about 2:32 AM, the deceased called 000. The call lasted 5 minutes and 42 seconds. He reported that a male had kicked in the door of his van but he thought the male might have gone back up the road.
4. Between 2:34 AM and 2:39 AM, a person is captured on CCTV walking at the front of Statewide Office Furniture and then towards the front door of the premises and as the person reached the front door the foyer light is turned on. That light is then turned on and off three times during the period from 2:42 AM to 2:45 AM and the person can be seen inside the premises.
5. At 2:47 AM, CCTV captured a person walking around the front of Statewide Office Furniture's premises and at 2:50 AM he is seen walking right (the left of the picture) from the premises towards the north eastern end of the carpark where Mr Jardine's campervan was parked.
6. At some time between 2:00 AM and 4:00 AM, Mr Sean Murphy, who lived about 100m from the Garema Circuit carpark, heard two gunshots come from the direction of the carpark and then, after a short time, two more gun shots from the same direction.
7. At 2:52 AM, a person is captured on CCTV walking back from the direction of the carpark and towards the front door of Statewide Office Furniture. As the person reaches the door, the light is turned on and then off about 50 seconds later.

Work commences on 26 July 2017 at Statewide Office Furniture

1. Mr Chen arrived at work at about 6:40 AM on 26 July 2017 and found the gate to the premises of Statewide Office Furniture was already open.
2. At 6:52 AM, the accused is captured on CCTV walking out of the front door of Statewide Office Furniture's premises and then walking past 20 Garema Circuit. A little after 7:00 AM, he is captured walking back carrying a small white plastic bag.
3. Mr Chen remembered the accused walking back into the factory area after they had all started working after 7:00 AM.
4. At a little before 9:00 AM on the morning of 26 July 2017, when Ms Armstrong and Ms Vaughan arrived for work, the accused approached them while they were still outside and said: "Did you notice the bullets and blood?" They thought the accused was referring to a delivery truck and looked at the truck. The accused then looked at the campervan and said: "No, the van." The accused then whispered: "There is a dead body in there." Once inside the office area, the accused said to them: "There is going to be a fracas today."

Discovery of Mr Jardine on the morning of 26 July 2017

1. After he arrived at work at about 6:15 AM on 26 July 2017, Mr Fabien was unable to find Mr Jardine and tried to contact him by phone twice just after 6:30 AM and six times just after 9:50 AM. Other workmates had missed him as well.
2. At about 9:55 AM, Mr Fabien walked to the car park where he knew Mr Jardine's campervan was parked. He looked inside and saw blood on the bed and Mr Jardine inside. There was blood on the first step and on the ground outside. Mr Fabien banged on the door but did not receive a response. After contacting a work colleague, Mr Fabien dialled 000 and requested police and ambulance to attend. Other workmates arrived and gained entry to the van and tried to render assistance but there was nothing that could be done.
3. Police and ambulance attended at 10:21 AM and the ambulance officers confirmed that Mr Jardine was deceased. A crime scene was established.
4. Police located one impact mark on the exterior surface of the door pillar as well as a fired bullet in the small garden area opposite the door and almost directly in line with the impact mark on the door pillar. Investigations were carried out and photographs were taken.
5. At about 3:50 PM on that day, while Sen Con Constantinou was performing duties in relation to the crime scene investigation at the Garema Circuit carpark, the accused approached him. Sen Con Constantinou was acquainted with the accused through his brother. The accused asked: "Is it murder or suicide, it's murder isn't it, it's suicide, it's murder." The accused appeared happy and laughing when he said this. When Sen Con Constantinou said that he did not know, the accused said: "I know it's murder."
6. A short time later, Sen Con Constantinou noticed the accused was making attempts to see the deceased's body and said that he needed to stay away from the police tape. When Sen Con Constantinou asked how things were going with the accused, he immediately saw his demeanour change. The accused's pupils dilated and he began to look towards the direction of the body and the campervan. He frowned and appeared angry. The accused then said that his son had been raped the previous night and that he was going to court for custody. During that conversation, the accused also said: "The CIA are doing deals and I have a meeting at the Pentagon. I'm on a mission for the Queen and I am her agent and I'm going to meet up with Prince Harry. The CIA and the Rothschilds are after me."

Telephone records

1. Telephone records for the deceased's mobile telephone indicate, among other things, that at 02:32:39 AM on 26 July 2017, the telephone called 000 and was communicating through the cell tower "Kingsgrove STA Richland Street". The call lasted 342 seconds.
2. Telephone records for the accused's mobile phone indicated, among other things, that between 2:52 AM and 9:34 AM on 26 July 2017 the telephone was communicating through the cell tower "Kingsgrove STA Richland Street".
3. The cell tower "Kingsgrove STA Richland Street" is less than about 350m from the Garema Circuit carpark and the location of the deceased's campervan. The antenna at the "Kingsgrove STA Richland Street" cell tower is oriented directly at the carpark.

The post-mortem

1. Based on the report of the post-mortem examination, I accept that the direct cause of death was gunshot wounds to the body of the deceased. There were no antecedent causes or other significant conditions contributing to the death of the deceased. In particular, gunshot track A entered the body in the left upper arm and then continued into the body. There was no exit wound. The bullet was found lying loosely within the pericardial sac. An impact damaged .32 calibre fired bullet was removed from this wound. Gunshot track B passed through the abdominal wall and then passed through the colon and small bowel. Again there was no exit wound. The bullet was found in the soft tissue anterior to the right femur. One impact damaged .32 calibre fired bullet was removed from this wound.

The accused's subsequent actions and statements

1. On 28 July 2017 police attended Statewide Office Furniture and spoke with the accused during which time the accused gave consent for the police to take the CCTV hard drive and assisted police to remove the drive.
2. After the police left, Mr Orr had a conversation with the accused concerning what he had said to the police because Mr Orr did not think it was entirely accurate. During that conversation, the accused said: "I wasn't lying, I wasn't here when the place was locked up for the day, I didn't get back here till 2 am".
3. The accused then went on to make various statements to Mr Orr as follows: "They are going to find occult shit in the back of the van, there is just weird shit in there, he is the kind of guy that can kill you without a gun." "He won't be identified by police because it's a sanctioned operation. They gotta learn. There is nothing I can do. And then they'll know to stay in line. They'll want them to know if you fuck up, you'll wind up dead in the street and no one will know who you are." "He was there and I was there. I identified myself as a Federal agent. He kept staring at me. I said 'what the fuck do you want?' He just kept staring at me. You know what's going to happen when ex-military and a federal agent stand-off against each other. One of them is going to end up dead so I said to him either fuck off or I'll shoot you. He said no. So I shot him. Like I said, either he's dead or I'm dead or he's dead. The guy that died is a message to people in the area."
4. In conversations with Ms Vaughan on 28 and 29 July 2017, the accused mentioned "high-level security clearance" and referred to the deceased as an "operative".
5. On 29 July 2017, the accused also said to Mr Herrera and his brother that he had been on a mission with the Queen, Prince Harry and the Royal guards and that he had special clearance to do what he had to do. He also said on this occasion, among other things: "I'm going on a mission to Afghanistan as I've broken all the secret governance."

Execution of the search warrant

1. At about 3:35 PM on Saturday, 29 July 2017 police executed a search warrant at the premises of Statewide Office Furniture which extended into Sunday 30 July 2017.
2. During the search which lasted some hours, a SKS 7.62 x 39 mm rifle with serial number 8812234 was located in the single metal upright locker in the accused's locked room in the office area of the premises.
3. Based upon the evidence of Crime Scene Officer Preece, I accept that the rifle with serial number 8812234 was a 7.62 x 39 mm NORINCO SKS self-loading centre-fire rifle that was operative and, when discharged, could propel a projectile by means of explosives and that it was of a kind designed or adapted for military purposes. Accordingly, I am satisfied to the requisite standard that the rifle was a prohibited weapon, as defined in cl 5 of Sch 1 to the Firearms Act 1996 (NSW).
4. Also at this time, fifteen .32 calibre fired cartridge cases and one unfired .32 calibre cartridge as well as twelve 7.62 x 39 mm unfired cartridges were found in the accused's locked room in the office area of the premises of Statewide Office Furniture.
5. During the execution of the warrant, a blue and white esky was found in the boot of a white Mercedes Benz registration, SSS 071, parked by the accused in the basement garage area of the Statewide Office Furniture premises. When the esky were subsequently examined, it was found to contain 2,850 rounds of ammunition being 1,074 .32 calibre unfired cartridges and 1,776 7.62 x 39 mm unfired cartridges.
6. Based upon the evidence of Crime Scene Officer Preece, I accept that the unfired cartridges to which I have referred are ammunition as defined in s 4(1)(a) or (b) of the Firearms Act.

The firearms certificates

1. Based on the certificates under s 87 of the Firearms Act and in the absence of any evidence to the contrary, I accept that: 1. the accused was not, during the period from 1 January 2017 to 1 August 2017 the holder of a Firearms Licence or Permit in New South Wales, which authorised the possession or use of firearms; 2. the NORINCO SKS self-loading rifle with serial number 8812234 was not registered under the Firearms Act at any time in July 2017 or at any other time; and 3. the accused was not, during the period from 26 July 2017 to 29 July 2017 the holder of a Firearms Licence or Permit in New South Wales, which authorised the possession of ammunition.

The arrest of the accused and ERISP

1. On Saturday, 29 July 2017 at 7:10 PM in Tregear, the accused was arrested when he was travelling in a company vehicle belonging to Statewide Office Furniture being driven by Mr Alam. The accused declined to participate in an electronically recorded interview, or ERISP, in relation to the murder allegation but did agree to participate in an interview in relation to the rifle and ammunition found in the accused's room in the office area of Statewide Office Furniture's premises in Garema Circuit.
2. During that interview, the accused was unable to give a coherent and consistent account of his whereabouts on the night of 25 July and the early morning of 26 July 2017. Although he denied the allegations concerning the murder charge, the accused made a series of statements referring to government operatives, an ex-police informant, ASIO and federal operations, which were similar to what he had said to Mr Orr and others in the days after the shooting of the deceased. Examples of the relevant questions and answers recorded in the transcript of the ERISP are set out in the appendix to this judgment.

Conclusions as to the physical acts

1. It is not possible from the CCTV footage to identify the person shown in and near the premises of Statewide Office Furniture in the early morning of 26 July 2017. Nonetheless, having regard to my findings based on the evidence as a whole, including but not limited to the fact that the accused was living at the premises at the time, his statement to Mr Orr that he arrived at the premises at 2:00 AM that morning, the persons who had keys to gain access to the premises and the accused's telephone being in that vicinity in the early morning of 26 July 2017, I am satisfied beyond reasonable doubt that it was the accused who was shown on the CCTV footage.
2. Having regard to the evidence as a whole and my findings including but not limited to: the accused's possession of a .32 calibre handgun, which was the same calibre as the weapon used to shoot the deceased, as well as .32 calibre ammunition and fired shells; the CCTV footage of the accused walking in the direction of, and back from, where the deceased's van was parked on two occasions consistent with when the van door was kicked and with when the deceased was shot; the accused's statements to Ms Armstrong and Ms Vaughan that there was a dead body in the campervan before the deceased's body had been discovered; the accused's conversation with Sen Con Constantinou; and, the accused's explanation to Mr Orr that he had shot the deceased because he kept staring at the accused and "so I said to him either fuck off or I'll shoot you. He said no. So I shot him", and the absence of contest concerning the conclusion, I am satisfied beyond reasonable doubt that, on 26 July 2017 in Kingsgrove, the accused voluntarily and deliberately shot Mr Jardine twice and that the injuries so inflicted caused his death. Thus, the Crown has discharged its onus of proof in respect of the physical elements of the offence of murder, in count 1.
3. Similarly, having regard to the evidence as a whole and my findings in relation to the NORINCO rifle with serial number 8812234 and the certificates under s 87 of the Firearms Act, and in the absence of any contest, I am also satisfied beyond reasonable doubt that on 29 July 2017 in Kingsgrove: 1. the accused possessed the rifle and that it was a prohibited firearm and that the accused did not hold a licence or permit to possess it; and 2. the accused possessed the rifle with serial number 8812234 and that it was a prohibited firearm and that it was unregistered.
4. It is necessary now to consider the question of whether the accused was criminally responsible for doing the acts which I have found occurred in relation to each of the murder and the firearm offences, before dealing with the question of any specific intention required for the murder offence, should that be necessary. [12]

The accused's mental illness

1. The defence of mental illness relied on by the accused raises the question of whether the accused can be held criminally responsible for his acts, having regard to the evidence before the Court of the accused's mental condition at the time of the relevant acts on 26 and 29 July 2017.
2. For the reasons I have already given, I accept the evidence of both the forensic psychiatrists, which was largely consistent.

Prof Greenberg

1. The evidence of Prof Greenberg in his report dated 17 November 2019 was that he had conducted a psychiatric assessment of the accused on 4 August 2018, 27 June 2019 and 13 November 2019. Additional sources of information on which Prof Greenberg based his opinions included the psychiatric report of Dr Allnutt dated 27 August 2019.
2. Prof Greenberg's diagnosis was that the accused suffers and suffered from Chronic Delusional Disorder (Differential diagnosis: Schizophrenic Disorder), which is a mental illness with psychotic symptoms, namely paranoid delusions. He was of the opinion that such a mental illness qualified as a "disease of the mind". Prof Greenberg went on: "I'm of the opinion that at the time of the alleged offences, [the accused] was labouring under defect of reason caused by disease of the mind. [The accused] has a complex systematised delusional belief system which appears to be chronic in nature (developed over several years). There are reports from his friends that he developed these delusional false beliefs several years prior to the alleged offences and over time these beliefs become more systematised, paranoid and grandiose in nature. [At this point Prof Greenberg summarised the accused's bizarre systematised delusional beliefs which he disclosed to a number of witnesses and which I have mentioned already when making my findings. Prof Greenberg continued:] I am therefore of the opinion that [the accused] likely did know the nature and quality of his act at the time of the alleged offences. … However, I'm of the opinion that [the accused] did not know the act was morally wrong at the time of the alleged offences. It is likely that on the balance of probabilities, the deceased (Brett Jardine) became incorporated into [the accused's] highly systematised delusional belief system and [the accused] accordingly acted on this false psychotic belief system in a highly disorganised irrational bizarre manner." (emphasis in original)
3. In his oral evidence, Prof Greenberg noted that he had assessed the accused most recently on 12 February 2020. He confirmed his diagnosis that the accused suffers from a severe mental illness namely Chronic Delusional Disorder dating back to about 2010. After about 2015 and 2016 and prior to 26 July 2017, it was noted that the accused spoke to various people, including friends and employees, about his belief system which was clearly psychotic and paranoid in nature. There were two main false beliefs or delusions, the one being persecutory delusions and the other being grandiose delusions.
4. Dr Greenberg explained that the delusional disorder was chronic in the sense that: "it occurred over a long period of time and developed over time and obviously deteriorated over time, to the point where the deceased was incorporated into that delusional belief system."
5. The accused's condition also involved, in Dr Greenberg's opinion, a lack of insight in that persons with psychotic illness: "have these false beliefs where they believe it is true and if you try and convince them, they remain fixed about that belief. So they are not amenable to persuasion or argument. It is a fixed belief so they have no insight, or minimal insight, in which they are unable to reason that it is unlikely or it is implausible. They maintain the belief regardless of what you do and in fact can often become very aggressive and agitated if you try and convince them otherwise, because for them it is true. That is the hallmark of a delusional belief."
6. Prof Greenberg also confirmed in cross-examination that he agreed with Dr Allnutt's opinions.

Dr Allnutt

1. In his report on 27 August 2019, Dr Allnutt noted that he had conducted a clinical evaluation of the accused through audio-visual link on 22 August 2019. Dr Allnutt's opinion was that it was likely that the accused had a chronic delusional disorder and his differential diagnosis remained a schizoaffective disorder or a paranoid schizophrenia. He also said in this report: "Based on the information supplied to me, in the time leading up to the alleged offence [the accused] was suffering active symptoms of psychosis. In my view, this is notable in the ERISP interview with police, in which he manifests a systematised persecutory delusional system involving the rape of his son and wife, conspiracies involving him, with delusional ideation about him being to be some form of operative, persecution by the Rebels and his secretaries, and pursuit by ASIO, ONA and others. … It is unlikely that his disease of the mind would have undermined his capacity to know the nature and quality of his actions at the material time. However, in my view, this disease of the mind caused a defect of reason, of a nature and severity that resulted in him being incapable of reasoning about the wrongfulness of his actions at the material time of the alleged offending."
2. Dr Allnutt conducted a further clinical evaluation with the accused on 10 January 2020 and his report of 20 January 2020 was also before the Court. During that evaluation, the accused provided an account of what occurred when the deceased was shot in the early hours of 26 July 2017. Dr Allnutt recorded the account in terms which included the following: "He [the accused] thought this person was intending to kill him because he had parked so close to his property. He had taken a gun when he walked out of the property and had the gun in his hand when he walked up to the car. At that time, he was thinking this person was trying to kill him. He asked this person to leave but the man asked him who he was who he worked for. He said that he did not like the man's line of questioning. He said the man knew who he was by the way he acted and stuck around, even though he saw the gun in his hand. This meant to him that this man had 'an agenda', which was that he wanted to kill [the accused]. He said he asked this person to leave four or five times, then shot him. He said when he shot the deceased, 'One hundred percent he was going to kill me'. He concluded this 'by the way he pulled up and what he said'."
3. Dr Allnutt's conclusion in his January 2020 report included: "[The accused] was suffering a disease of the mind (delusional disorder); which caused a defect of reason (an irrational belief that the deceased was some form of operative and posed a threat to his life which was inconsistent with reality); and as a result was unable to reason about the matter with a moderate degree of sense or composure (having incorporated the deceased into an irrational belief system and believing with conviction that his life was at risk, he felt justified in his actions in terms of self-defence and would have been unable to apply the same reasoning to the situation that he believed he was confronted with, as a person of normal mind)."

Mental illness defence - consideration

1. Having regard to the evidence as a whole and, in particular, the unchallenged and consistent opinions of the psychiatrists, I am satisfied to the requisite standard that the accused did not know that what he did in shooting the deceased was wrong, as judged by everyday standards of reasonable people. This was so because his delusional belief system, into which the deceased was unfortunately incorporated, prevented him from reasoning about those matters with even a moderate degree of sense and composure. This defect of reasoning was the result of his Chronic Delusional Disorder, which, I am satisfied, is a mental illness or disease of the mind.
2. Although the psychiatrists did not expressly address the issue of how the accused's mental illness related to the firearms offending, I am satisfied on the balance of probabilities that the accused's Chronic Delusional Disorder, involving as it did false beliefs that he was authorised to possess and use weapons by the Queen or as a "Federal agent", was such that, although he probably knew the nature and quality of his acts in possessing the NORINCO rifle without a license or permit under the Firearms Act and without it being registered, he did not know that his acts in these regards were wrong in the requisite sense.

Appropriate verdicts

1. Accordingly, the defence of mental illness has been made out in respect of each of counts 1, 2 and 3. The appropriate verdict is, therefore, in respect of each of counts 1, 2 and 3, a special verdict of not guilty by reason of mental illness.
2. For the reasons I have already explained, the appropriate verdicts in respect of each of counts 4, 5, 6 7, 8 and 9, concerning the ammunition magazines, is not guilty.

The related offences on the s 166 certificate

1. In relation to the related offences of possessing ammunition as alleged in sequences 3 and 5 on the s 166 certificate, the joint position of the prosecution and the accused was that the available evidence was sufficient to find the elements of the offences proved to the requisite standard. Having regard to the evidence as a whole and in light of the parties' position, I am satisfied beyond reasonable doubt that the accused possessed ammunition for firearms without holding a licence or permit for firearms which take that ammunition and without being authorised to possess that ammunition by a permit, both in respect of the unfired cartridges found, on 29 and 30 July 2017, in the accused's locked room and in respect of the unfired cartridges found in the esky in the boot of the accused's white Mercedes Benz, SSS 071.
2. However, in light of my findings concerning the mental illness of the accused and his inability to reason about those matters with even a moderate degree of sense and composure, I am satisfied that, although he probably knew the nature and quality of his acts in possessing the ammunition for firearms without holding a licence or permit for firearms which take that ammunition and without being authorised to possess that ammunition by a permit, he did not know that his acts in these regards were wrong in the requisite sense. In all the circumstances, the appropriate course is to find the offences proved but to dismiss the charges, as permitted by s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Additional remarks

1. Before formally announcing the verdicts and orders of the Court, it remains to acknowledge the death of Brett Jardine as a human and personal tragedy, rather than it being treated only as the subject of a criminal trial. The evidence in this matter confirmed that he was positive and happy, a respected work colleague and open and outgoing. Mr Jardine's unnecessary death in such shocking and distressing circumstances has no doubt devastated his family and those others who loved him and has been a great blow to them as well as to his friends, his workmates and his acquaintances. The Court extends its sympathy for their loss to his family and all those affected by Mr Jardine's death.

Verdicts and orders

1. Accordingly, 1. The verdicts of the Court are: In respect of count 1, a special verdict of not guilty by reason of mental illness. In respect of count 2, a special verdict of not guilty by reason of mental illness. In respect of count 3, a special verdict of not guilty by reason of mental illness. In respect of count 4, not guilty. In respect of count 5, not guilty. In respect of count 6, not guilty. In respect of count 7, not guilty. In respect of count 8, not guilty. In respect of count 9, not guilty. 1. In respect of sequences 3 and 5 on the section 166 certificate, the Court finds the offences proved but makes an order directing that the charges be dismissed, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. The Court orders, pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), that Simon Slavko Stojic is to be returned to his present place of custody and detained there, or at such other place as is deemed appropriate according to law, until such time as he is released by due process of law. 3. The Court directs the Registrar of the Court to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders.

Extracts from the electronically recorded interview given by the accused commencing on 29 July 2017 (ERISP Transcript R0490733) "Q172 Um, and then Wednesday you came into work? A I think so. I think I came in early. I dunno, it's a blue this week to me. Sorry, it's a blur, man. I had a big trauma, man. You know, first fucking my wife's raped, yeah, by government operatives and everything, man. And you get your son raped. Fuck, after 20 years of shit, you know, your country owes you some favours when the Prime Minister sits there watching your wife get tied to a fucking horse in Bungendore with the O and A directorate. Q173 Simon, so when - - - A Does a bit to your fucking head. Q174 Simon, when you say um, you sometimes - - - A You're impinging on military operations anyway. Anyway, keep going. … Q311 You - - - A That Amanda you talked to is well hooked up with the Rebels and I, whatever his fucking name is. If you want to wet me up, I'm on their hit list, do get fucked. Q332 Just to let you know the video's still recording. A Yeah, no worries. INTERVIEW SUSPENDED A Yeah, I didn't kill him, you know. I'm innocent. Yeah, I'm innocent, mate. I didn't murder anyone. Never have. All right. What connection has he got to me, how does he know me, how does he know me, why would I kill him? You tell me what you found in the van. What did you find in the van, who was he? You ain't pinning it on me, all right. You ain't pinning this on, all right. You ain't pinning it. OK. You ain't. I'm no fucking murderer. I'm no fucking murderer. This government's murderous. The mother fuckers in Port Arthur are murderers. The O and A are murderers. ASIO are murderers. And a lot of coppers too, some of them. But not me. I don't murder. I don't kill for money. … Q337 The time is now 15 minutes past midnight. Um, Simon has just returned from a bathroom break and we're gunna recommence the interview. Now, Simon, just to remember we were talking about, we were talking about the, um, the firearm located in the business premise, and I asked you what can you tell me about that? A It's fucking years down the drain now. Federal operation, man. I don't want to say anymore. Federal operation, you can fucking Colvin on the phone. DETECTIVE SENIOR CONSTABLE VENESS Q338 Just wait, Simon. DETECTIVE SENIOR CONSTABLE LYE Q339 Just wait a second. We, we have to - - - A Just blowing fucking 7 years of hard work. Get Colvin on the phone. It's a federal operation, Middle Eastern crime gangs running of weapons. And I'm fucking blowing this down the drain after 7 years. And how many fucking lives have died. Get Colvin on the phone now and get Fuller on the phone. Q340 Apart - - - A You're blowing this, man. They've got weapons under the fucking mosque. You're not blowing this shit. You're not blowing this shit. Get him on the phone. Q 341 Simon, I - - - A Say no more. … Q353 You're saying you've never owned a firearm? A Never owned a firearm, mate. Q354 OK. Um, is this your firearm? A It's not my firearm, mate. I told you, federal operation. I don't want to talk about it. Q355 How, how long - - - A You want to blow it down the drain, you can blow it down the drain. You get Colvin on the phone, I've got nothing else to say about that. I didn't kill Brett Jardine, I don't know him from a bar of fucking soap. What he was doing there, I dunno, I don't want to know. All right. I don't kill people. I don't murder people. That's it. All right. Simple as that. …"

Endnotes

1. Ex A.
2. Ex B.
3. Ex C.
4. Ex 1.
5. See s 38 of theMental Health (Forensic Provisions) Act 1990 (NSW).
6. The Queen v. Falconer (1990) 171 CLR 30 at 42 (Mason CJ, Brennan and McHugh JJ) and 61 (Deane and Dawson JJ); [1990] HCA 49.
7. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme and Bellew JJ) and the cases there cited.
8. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28; R v Hadler (No 2) [2018] NSWSC 1804 at [203].
9. M'Naghten's Case (1843) 10 Cl & Fin 200 at 210; 8 ER 718 at 722.
10. The Queen v. Falconer (1990) 171 CLR 30 at 53-54; [1990] HCA 49; Radford v R (1985) 42 SASR 266 at 274-5.
11. See the jury direction quoted in The King v Porter (1933) 55 CLR 182 at 189-190; [1933] HCA 1.
12. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28; R v Minani (2005) 62 NSWLR 481; [2005] NSWCCA 226 at [32]. 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: 12 June 2020