R v Thompson [2022] NSWSC 1044 | Case summary

R v Thompson [2022] NSWSC 1044 | Case summary | Zoe

[3]

The First Incident

At 8.57pm, an anonymous female caller to 000 reported a male person wearing a white hat (the accused) was outside the premises calling out "paedophile" and smashing windows before walking away down Leonard Street in the direction of the Cruickshank House.
At this time, Mr Peter Neilsen heard a loud crashing on a Colorbond fence and someone (the accused) yelling out "Come out cunt", which was repeated several times.
Ms Lillie Fuller and Mr Sam McCormack was next door to the premises ("Mr McCormack's house"). Ms Fuller provided a statement to police in which she said that they were inside in Mr McCormack's room (on the eastern side of the house) when they heard a male's voice (the accused) start screaming and yelling from outside. He was yelling repetitively "Come outside you paedophile dog". Ms Fuller heard him laugh a few times, which she described as "a crazy laugh like he was psycho and out to hurt someone". She also heard loud banging noises like someone was banging on a door. She then heard him yell out again asking the person to come outside and then she heard the sound of glass smashing. She heard more glass smashing. Then the male continued to yell out "paedophile dog". She told police the male would scream out, then stop and then start up yelling again.
Mr McCormack told police he heard the male (the accused) screaming "Come out here", "come here", "come out here you rapist cunt", "fuck you" and "racist". Mr McCormack told police he distinctively heard the male yell "I'm going to kill you". Mr McCormack told police that he heard the sound of someone banging loudly on the front door of no 41, and that he could still hear the demands and threats to the occupants of the house.
Mr Matthew Brooks heard a male's voice (the accused) at this time screaming and yelling. He heard the words "Fucking dog" and "come here, let's go dog" repeated over and over. He also heard banging noises like someone was throwing rocks and it was hitting the side of a fibro house. He then started to hear glass smashing and concluded it was the house windows.
At 9:03pm the deceased contacted 000 requesting police assistance because a male wearing a white hat (the accused) was smashing his house windows and his car while saying "get outside cunt". The deceased reported to 000: "He's smashed all the windows nearly, he's going off his head." The deceased told the operator the male was sitting out the front of the house across from No. 30 when he drove past but said he didn't know who the male was. The deceased asked the operator: "Can you get them (police) here quick, cause he's scary".
Police attended the deceased's house at 9.20pm, observing damage to the walls and windows of the right-hand (eastern) side of the house. They also saw that all the windows and the windscreen of the deceased's motor vehicle, a white Nissan sedan Registration XXXXXX parked in the driveway, were shattered, the rear nearside and rear offside taillights were smashed.
The deceased told police that a male who he did not know had come to the house and damaged the house and the car. The deceased said that he thought he had seen the male sitting outside Ms Toomey's address earlier in the evening when the deceased went to the shops.
The deceased told police he had been receiving threats on his phone and he showed police a number of text messages he had received on his mobile phone from mobile service …577. The deceased told police there were people in the street who were alleging he was a paedophile.
Mobile service …577 was subscribed to Ms Haleigh Stevens who lived at an address in Bomaderry. Police spoke to Ms Stevens on 5 August 2020 and she confirmed that she had attended the deceased's home two weeks earlier about approaching younger women and offering them pills in their mailboxes and said that she had posted several comments on Facebook about this.
The deceased's son, Mr Stewart, played an audio recording he had made during the incident to police. Police noted that Mr Stewart appeared to be frightened and distressed.
The accused's mobile phone handset was found by police on the ground near the deceased's letterbox.

[4]

The Second Incident

Ms Fuller and Mr McCormack were in the loungeroom of Mr McCormack's house playing on the PlayStation when Ms Fuller told police they again heard banging noises and the sound of glass smashing. She looked out the kitchen window on the western side of the house towards the front door of the deceased's house. She told police she could clearly see a male (the accused) standing in front of the door: "It appeared like he was in a fighting stance and I seen him punching the door".
Mr McCormack told police he heard the same male voice screaming again "you racist cunt", "you're a piece of shit", "you are a paedophile cunt" and he heard the sound of glass smashing. In between smashing the windows, the male would go back to banging on the front door while yelling out similar things, including "I'm going to kill you".
The deceased again contacted 000 at 9.46pm to report that the male had returned. He told the 000 operator that, "The bloke's back smashing my car up again". He said "He's scary. He's going to smash through the front door any second". Sounds of thuds followed by glass breaking are audible in the background of the call.
The deceased indicated that the male was smashing multiple windows. At one point during the call when the operator was requesting further information, the deceased said "Can you just get the police here please. It's just so scary". When the operator asked if he could see the person now, the deceased said, "I'm not game to look".
Police returned to the deceased's house at about 9.55pm and the deceased reported more damage to his house caused by the male (the accused), including broken windows next to the front door and near the front left corner of the house. SC Rigby took more photographs of the damage, noting that there was now not a window at the front and side of the home that had not been smashed.
Police remained in the area for about ten minutes but departed when they didn't see anything relevant.
The accused meanwhile had gone to his friend Mr Connelly's house on Leonard Street ("Mr Connelly's house"). Mr Connelly told police that the accused asked for a bandage for a cut on his knee and admitted to Mr Connelly he had smashed the deceased's car windows. Mr Connelly said the accused asked him for petrol because he wanted to burn "the neighbour's" car, whom the accused referred to as "The prick across the road".
At about 10.00pm, the deceased telephoned Southern Cross Housing to report the broken windows of his house and request urgent assistance securing the house. He said the male had been there twice, as had police, and that he and his son were scared with just about every front window smashed and requiring boarding up. The deceased was informed that someone would attend to at least board the windows up overnight.

[5]

The Third Incident

The deceased again contacted 000 at 10:39pm. He requested police and fire brigade assistance as the male (accused) had returned and "chucked petrol through the window". He described it as a "firebomb". A smoke alarm can be heard in the background of the call. The deceased told the operator "the loungeroom's on fire" and said, "can you please hurry up". He said, "he can get in the front door". He said he was "too scared to go near him, he's mad". The operator asked if he was safe and the deceased said he was "trying to hide because he can get in that front door any second" and he was in the bathroom and said, "the loungeroom's on fire, you need to get the police here as soon as possible". He said he would not leave the house because he believed the male (accused) would kill him. He then told the operator he was in the loungeroom trying to get buckets of water to put the fire out. "If the bloke gets in here he'll kill us". He then informed the operator his car was on fire. He reported that he had put the fire in the loungeroom out but he told the operator he could not breathe because it was smoked out.
The deceased is heard persistently coughing and he complained he could not breathe. The operator asked him to step outside into the backyard. The deceased's son can be heard in the background imploring his father to come outside. The deceased told the operator "no, I can't go outside, he'll kill us. he's mad". He then reported to the operator that "The whole house is on fire. He's chucking bombs, he's chucking them in the bedroom now". Through clear respiratory distress, the deceased enquired of the operator "how far away are they?". The operator continued to request the deceased to leave the house, but there was thereafter no further response other than coughing, and then the call ended. The call lasted for 10 minutes.
The neighbours Ms Fuller and Mr McCormack had heard banging noises again coming from the premises and then saw the deceased's house on fire. Mr McCormack said he heard the deceased's son, Mr Stewart, scream "Dad, dad, dad" and a short time later he heard the male (the accused) yell "Burn cunt, burn" and a short time later he heard the male laughing. Mr McCormack said the laugh almost sounded excited. Ms Fuller told police she heard the male (the accused) had the same "crazy laugh" as he said "burn" a few times.
The deceased's son contacted 000 at 10:40pm asking for help, reporting that "he's come back" and reported he was smashing windows. He said he was "really scared". Mr Stewart had locked himself in the bathroom but upon smelling smoke he opened the door, crawled to the laundry from where he escaped via the side door into the backyard.
The first police arrived at the scene at 10:47pm. Upon arrival at the scene, police found the deceased's house and vehicle engulfed in flames. The deceased's son was standing outside with his dog.
Fire brigade personnel arrived at approximately 10:54pm and observed thick smoke issuing from the eastern, western and southern side of the deceased's house and the car was well alight in the driveway.
The deceased's body was located in the living room with extensive burns to his abdomen, chest, face and arms and there was a considerable amount of black soot under his nose and in and around his mouth. He was pulled from the house at 11:09pm, unconscious, pulseless and not breathing. Attempts were made to resuscitate him for about 15 minutes but he was monitored as asystole and resuscitation was ceased. At 11:17pm he was pronounced deceased.
Fire fighters noted there was a strong smell of petrol at the scene.
A circular piece of timber with silver tape around one end was located at the front of the property and was collected as an exhibit.
Ms Monk was at her home at 47 Leonard Street when she learnt of the fire. She went across the road to Mr Connelly's house and the accused was there. Ms Monk told police the accused said to her: "I've just gotten out of the shower. Can you run me around the corner?" The accused handed something to Mr Connelly. The accused was shirtless, wearing shorts, shoes and carrying his cap.
The accused left Mr Connelly's with Ms Monk and they went back to Ms Monk's house (the accused is captured on CCTV arriving at 22:44pm). At 22:54pm the accused was captured on CCTV leaving Ms Monk's house with Ms Monk and he was wearing a light-coloured long-sleeved shirt and long dark coloured pants. They drove in Ms Monk's Commodore to Mr Tighe's house at an address on Bunberra Street, arriving at 10:57pm. Ten minutes later, at 11.07pm, they were back at Ms Monk's house.
At 1:07am (on 1 August 2020), Senior Constable Carter was captured on CCTV at Ms Monk's front door conducting a canvas for information relating to the house fire. The door was answered by Ms Monk. At 2:05am, the accused was captured leaving Ms Monk's house.
The accused was arrested at the Cruickshank's home at 12:30pm on 1 August 2020. He was cautioned at the time of the arrest. As he was being led to the police car, he said "I don't understand what's happened I only smashed his windows".

[6]

ERISP

The accused participated in an electronically recorded interview during which he told police the following: 1. Confirmed he resided at the Cruickshank house with his partner, Telia Cruikshank and mother-in-law, Debbie Walker, and Debbie's son Eddie Cruickshank and Debbie's partner Mr Foster, and Skye Cruickshank (A37-51) and her children. 2. He said, "we all seen it" (the incident the previous night). 3. When asked what he had done on 31 July 2020 the accused said he had been at his mate Joey Tighe's house nearly all day then he came back got Aiya (Skye's daughter) and went to the shops. They were walking on the side of the road and the deceased nearly hit them driving his car. When he came back that night the deceased drove into his driveway and said something. The accused yelled at the deceased about what's his problem and the deceased went inside. The accused said he went to the deceased's house and ripped the front lights off and then went home and got a hammer and smashed the windows and the window and lights of his car. Then he went over to the people's house across the road and 2-3 hours later people were screaming the house was on fire. He denied he lit the fire. He went to his friend Sam's house, stayed there the night and walked home. Today he went to the shop and his cousin said the police were looking for him, so he went home. 4. After the deceased's vehicle nearly hit him, he went to his friend 'Joe Boy's' house and they went to the Northern Tavern and played the pokies (A238-244) and he had a couple of beers (A256). He went back to Joe's house and then he walked to Sam's house. She wasn't home so he went to walk down the street and that's when he saw the deceased in his car pull into his driveway. 5. He said he didn't know the deceased but he always drove past him slow and he got told he was a paedophile but he doesn't have a clue who he is and he has never met him (A182-185). 6. He said the deceased was inside the house when he ripped off the lights (A354). 7. He said he saw the police attend the deceased's premises when he ripped the lights the first time (A372). 8. He thought the neighbours "Tyson and Hailey" said he lit the fire (A507-509). 9. He admitted he wore his white 'Nike' hat all day yesterday (A560-561) 10. He admitted he carries a bumbag (A600) and he carries it with him everywhere (A613). 11. He said "I didn't drink at all pretty much last night until I got with Sam" (A628). 12. He said police had found his phone at the deceased's house (A652) and his phone number is xxxxxxx836 (A659) and he got that number one and a half weeks ago. 13. He said when he smashed the windows, he cut his finger (A676) 14. He had some ice yesterday during the day "maybe around 1.00, 2.00" (A694). He said that ice calmed him (A699). 15. His recollection is "usually good." He has been "out stressing" and trying to get his life "back on track." When "that bloke there… yelled out at me I just [retaliated] at him" (A709). 16. He said after he smashed the deceased's house he heard the deceased was a paedophile and puts pills in Ms Sutton and Mr Connelly's mailbox and had also done it to his friend Sam (A741-743). 17. Later he said he didn't see the person who tried to run him over and this was the first time he had ever seen the deceased (A746-749). 18. He says he consumed "not even a point" (A790). 19. He said he was not affected by the ice (A795-796). 20. He denied he had ever messaged the deceased. 21. "Everyone's always just been spiteful to me. Like, like, Telia and that, Like, I don't have no one, I don't have my mum and dad. I don't talk to 'Em, they've got an AVO against me…" (A894). 22. Drugs with nothing to do with him smashing the deceased's windows (A805). 23. He denied he had handled petrol or any liquids the previous night (A969). 24. He didn't think he yelled the word "paedophile" but when he is angry he calls every name under the sun (A1003). "He was doing the same to me." 25. Prior to the incident commencing with the deceased he had an argument on the phone with Mr Tighe about his girlfriend Telia's whereabouts but denied he was angry (A1060-1092). 26. He denied that he had touched petrol the previous day (A1102) and he had nothing to light a fire with (A1103). 27. He says he watched the fire engulf the deceased's house for 5-10 minutes (A1136). 28. When he was watching the fire "everyone" was out the front and he heard people yelling his name (A1145). 29. He denied he had lit the fire (A1151). 30. Police asked the accused what a person inside a fire would do and the accused said "I dunno, run, I dunno" and police replied "that's exactly what you wanted" and the accused responded "yeah but" (A1167-1170). 31. When asked how he ingests his ice the accused said he smokes it but when asked about a lighter he denied he had one and said he borrowed a lighter for it yesterday from Skye (A1195-1205). 32. If the deceased had come out of the house when he damaged it he said he would have just asked him what he had said and why he tried to hit them, he denied he would have assaulted him (A1255) and did not necessarily want to hurt him (A1256). 33. He agreed he had been angry that he thought the deceased tried to run him over and that made him damage the property (A1317).

[10]

Ms Samantha Monk

Ms Monk provided a statement to police on 4 August 2020. She said that on 31 July 2020 in the morning sometime after 9.00am, she saw the accused with Skye Cruickshank and two of Skye's children when they arrived at her house. The accused was wearing a white baseball cap and shorts. They stayed for about an hour and when they left the accused said he was going to the shops (IGA Lyndhurst Drive) to get a "Smally" (a bottle of Port). She told police she believed the accused was "acting 'edgy'" at this time and she was later told by Cody Cruickshank that the accused had had a shot of ice that morning.
At 9-9:30pm on 31 July 2020, Ms Monk went with her friend Mr Hayman to Coles to buy a new mobile phone. She returned home at 10pm and 5-10 minutes later Skye Cruickshank and her daughter Aaleigha arrived and they heard yelling and screaming of male voices coming from the street in the direction of the Cruickshank's house.
They went outside to the verandah but she did not see anything and they went back inside. A few minutes later they heard more "ranting and raving" coming from the same direction. Mr Hayman subsequently told her the deceased's house was on fire. Ms Monk went outside to the veranda and she, Mr Cruickshank, Mr Hayman and Aaleigha walked across the road to Ms Sutton and Mr Connelly's premises and she saw the accused standing on Mr Connelly's front verandah with Ms Sutton, Mr Connelly and Cody Cruickshank. She said the accused asked her to drive him to Bunberra Street, Bomaderry which she did.
Five to ten minutes later the accused returned to Ms Monk's car and asked her to drive him back to her house. They returned to Ms Monk's house and sat on the lounge. Mr Hayman returned to Ms Monk's house and the accused appeared 'spacey'. The accused asked Ms Monk for a cigarette which she gave him, the accused made a comment that he thought Aaleigha was his daughter. Ms Monk said she could not understand why the accused told her this and that it shocked her as "Skye" had previously told her that her kids all had the same father. Ms Monk could smell alcohol on him and she thought he was moderately affected by alcohol. Mr Hayman came in and out of Ms Monk's house giving them updates on what was occurring in the street. The accused and Ms Monk lay on Ms Monk's bed, then at 2-3am the accused left and Ms Monk does not know where he went.
At 10am the accused, Skye Cruickshank and her children Aaleigha and TJ, returned to Ms Monk's premises and they spoke about the fire but the accused did not say anything about the fire. Mr Hayman came to Monk's and told them all that the deceased's body had been moved and the accused got up and said "I'm going to go". At 4:00pm that day Ms Monk was speaking to Skye on the phone and she heard Cody Cruickshank say in the background "I was at Natalie's with Harley before the fire and Rob and Natalie gave Harley the fuel drum to go over there and was saying to him, I bet you're a gutless cunt and don't do it". She said after some reflection she thinks the person she saw running from the deceased's house on 31 July 2020 looked to be of "similar build" to the accused and they were wearing similar clothing to what she saw the accused wearing earlier in the day but with no white hat.
Ms Monk told police in her statement that some weeks prior to the 31 July 2020, she had received a paper towel containing 15 Xanax tablets, 2 strips of Valium tablets and a note "Can do a deal ???? for $150". A mobile number and email address was provided and "contact me". She communicated by text message with that number and received a response from a person identifying himself as "Cameron, I live up the street from you". She told a few people in the street about the package and the text messages. She learnt that other women in the street had received similar messages and there was a discussion about one of the male neighbours going to confront the deceased about it.

[12]

Mr Robert Connelly and Ms Natalie Sutton

On 5 August 2020 police attended Mr Connelly's house (opposite the deceased's house) and spoke to the accused's friend Mr Connelly and his partner Ms Sutton. They were both subsequently interviewed by police.
Police seized a piece of timber (1 x 70cm long timber [square]) pole with silver electrical tape on one end and a burnt piece of black material which had been tied to the stick with wire at the opposite end. The piece of timber was found in Mr Connelly's backyard. Mr Connelly told police that this stick had been in his laundry cupboard and it had been beside a baby's bottle containing "a little bit of petrol" and was a weapon for his protection. He said he had previously shown the stick to the accused. The baby's bottle of petrol was missing from the laundry, although he did not see the accused take anything from his home.
Mr Connelly told police that on the evening of 31 July 2020 when the accused arrived at his house asking for a bandage, he seemed "pretty intoxicated" - Mr Connelly said he could smell alcohol on him - and agitated, "real fidgety". He said he took the accused into his laundry to get him a bandaid from the laundry cupboard. When the accused asked him for petrol because he wanted to burn the deceased's car, Mr Connelly said he said to him "Yeah, I got petrol but you don't want that…you'll go to gaol, mate". He said when the accused left he said he was going to find his bottle of port. Mr Connelly was asked by police if the accused gave any reason for wanting to burn the deceased's car and Mr Connelly said "he just said…just dirty prick, or something like that". Mr Connelly also said that the accused told him "his missus was mucking up behind his back" and he was "pretty upset" about that.
Mr Connelly told police that about four or five weeks before a script for Valium, pot and a note saying something like "sex for girls" was left in the mailbox. Three to four other women in the street including Sam (Monk) received similar packages and they all suspected it was "the bloke across the road from me" (the deceased).
Ms Sutton told police that she had seen the accused at about midday on 31 July 2020. The accused was walking past the deceased's house towards Sam Monk's house. The accused was yelling, "You wait cunt, you wait cunt". Ms Sutton said that the accused was "aggressive … he was wild", "he didn't look like the same Harley" and he was obviously on something".
The following day, 6 August 2020, police attended the address again and seized a golf club from the laundry of the premises.

[22]

Letters sent to his ex-partner Telia

In the first letter in the tender bundle the accused wrote: Hey my baby how are ya how's every one at home I love you baby and miss ya I whent to cort bub and thy nkocked back the manslaughter they are trying to just charge me with murder You need to go to the cort house and get the AVO fixed up Im Shattered coz I got my hopes up now Im looking at 15 to 20 years jail You need to tell the police Rob Connly gave me the petrol bottle and stuck to light the fire coz Im looking at the rest of my life in jail or get sam to tell the police I love ya bubba Love Harley Your number one xxx
In the third letter in the tender bundle, the accused wrote: …I wish I didn't light the fire that night I miss you I done it cos I was fighting with you
In the fourth letter the accused wrote: Hey bub how are ya I hope ya well I fucking miss ya I love ya so so much Its killing me I can't see ya They knocked back manslaughter so I'm looking at 16 to 25 years Its fucked I will always love you and I will wait for you The AVO finishes in 2023 so you need to go to the cort house and get it DROPPED And baby send me a letter and photos its doing my head in I can't talk to ya I miss ya bubba girl Keep putting money in baby
On 31 October 2021, the accused was recorded on a call to Ms Monk. The accused is V.1 and Ms Monk is V.2. V.2 And then I looked at Alia yesterday and I said it straight to Telia's face, I said, "I'm sorry, but who the fuck does that look like to you?" She's like, "Shut up man," argh, argh, argh. V.1 Yeah, I, I told you she was mine. V.2 Yeah. V.1 Even, I'm, I'm shown all these photos of um, like photos of me when I was on the outside and there, there's a photo in there of Alia - - - V.2 Yeah. V.1 - - - and they go, "Fuck, she, she's a spitting image out of your mouth." V.2 Yeah. And the photo of you and your other daughter and Alia are exactly the same. V.1 Yeah, I know, but Skye denies it. V.2 Mmm. Skye's just, she doesn't, well, I would too with Telia there. V.1 Yeah. But I, I was reading your statement that you said that I was saying that Alia was mine and that. ..... and then you asked Skye and Skye said that she ..... the same kid. V.2 Yeah. V.1 So kid to the same father. V.2 But that's exactly what was said man. V.1 Yeah, I know. Yeah, I know. Yeah.
The accused is recorded saying "I can barely remember that night really. I know what I done, but ---"
On 6 November 2021, the accused was recorded on a call to Ms Monk saying: 1. "Can you tell Telia, tell her that my, the manslaughter got knocked back"; 2. "I'm fucking spewing"; 3. "I went for the bail and the, yeah, they knocked it back. And now they done manslaughter under the Mental Health Act. Yeah and it got knocked back"; 4. "Well, they're trying to pin first degree still on me"; 5. "So I'm looking at fifteen to twenty-three years"; 6. "They're trying to say it was premediated because I went back there three times and I smashed up his house, they're trying to say I tortured him in the house"; 7. "And I was like, but his son was there, I said his son fucking escaped out the back door"; [The accused and Ms Monk spoke about unrelated matters for three minutes.] 1. "You know how you were telling me to tell the coppers that fucking them cunts were egging me on and that…if the coppers come and see Telia again tell her to tell them that fucken that she knew they were egging me on.."cause I don't want to say it, I don't want to be, sound like a dog"; 2. "'Cause that's what I, I was thinking that I should tell Telia to tell them that fucken Rob gave me the stick and that to [indecipherable]"; 3. "Yeah, 'cause that's what I need someone to do, tell them that fucken Rob gave me the stick and petrol bottle"; 4. "Cause it's been stressing me out"; 5. "Because which they did. They did give me the petrol bottle…so I'm not a liar".

[23]

Overview

Having regard to the factual material before the Court including the agreed statement of facts, the following findings of fact including inferences drawn from the facts may be distilled: 1. The accused provided a false account in the ERISP in two respects: 1. He did not light the fire at the deceased's house 2. The amount of drugs and alcohol he had consumed on 31 July 2020. He downplayed his consumption of those substances on that day. 1. Dr Eagle thereby correctly described him as a "poor historian." 2. Those false statements were exculpatory in nature. He also made inculpatory statements in his ERISP as to his involvement in the first and second incident. 3. The accused was yelling abuse at the deceased when the deceased was situated in his house. The accused was emphatic, in the abuse leveled at the deceased in the first, second and third incidents, that the deceased was a pedophile. This is despite a slender basis for him to form such a view based on neighbourhood rumours and information conveyed to the accused that the deceased had approached young women and offered them pills. No one in those allegations suggested those approached were children. 4. The accused was described by witnesses as exhibiting the following features during the incidents - "edgy and spacey" (by Ms Monk); "agitated and fidgety" (by Mr Connelly) and "not looking like the same Harley" (by Ms Sutton). The accused was heard laughing in an "excited" or "crazy" way. 5. The accused believed that the deceased directed derogatory remarks toward him during the incidents. However, it may be inferred that the deceased did not do so. Whilst there is some very limited direct and inconclusive evidence such as Mr Hayman referring to what "sounded like males arguing" that was said to have been heard at the same time as "glass smashing and a male challenging" someone to "get out here" (during the incidents) and Ms Vanderberg hearing "voices," it is clear that the deceased (and his son) were terrified of the accused during the incident as evidenced by the recordings of triple "0" calls. The deceased consistently described the accused as "scary" and capable of smashing through the front door. The deceased said he did not go to have a look outside and that he was "hiding" from the accused and he feared the accused "would kill us." 6. The accused's behaviour was disorganised having regard to the messages he sent from the "pub" and his comings and goings from various residences on the day of the incidents, on one occasion having left and returned from one premises on a number of occasions. 7. In his record of interview, the accused stated that the deceased had slowed down in his car when he drove past the accused and was passing him at random times of the night (as well as nearly hitting him with his car), notwithstanding that the accused made clear in his ERISP that he did not know the deceased until the day of the incidents. 8. The accused told police that the media were saying to him "Did you do something to [the deceased]?" 9. The accused was "angry" by the time he lit the fire because of the relationship difficulties with his partner, because he believed the deceased was a pedophile and because he perceived (irrationally) the deceased was yelling abuse at him. 10. There was no evidence of the accused hearing voices, talking to himself 'or nobody' at the time of the three incidents. He did not mention hearing voices in the ERISP or in his letter to his mother. 11. The account of his motive given by the accused to his mother, "I thought fuck this cunt, so I burnt his house. I started at the front room then went one window by window, so I knew he was dead" was inconsistent with his account to the psychiatrists when he said he had lit the fires to lure the deceased out to fight him. 12. The accused had said that he thought "Skye's daughter" was his child but there appears to have been some substance in the assertion. 13. The letters to the accused's partner and a telephone call to Ms Monk demonstrated an apparent appreciation of the basis for a defence and the implications of a conviction for the offence of murder (and that other convictions may be entered such as manslaughter).

[27]

Psychiatric History

On 2 August 2019, the accused self-presented to Frankston Hospital in Victoria with anxiety after stopping use of amphetamines. Some clinicians noted it was difficult to take a history of amphetamine use and that he may have been experiencing drug induced paranoia.
Dr Ellis reported that the accused has never been admitted to a psychiatric hospital. The accused began to engage in suicide attempts from the age of 21. On 2 November 2019, he was taken to Frankston Hospital by police and ambulance after running on the road in what was considered a suicide attempt. He tried to hang himself just before the arrest. Dr Ellis reported that the accused had stated that he had stabbed himself in the leg at the time of "the offence" because "the voice" told him to.
The accused was referred to a psychologist at age 22. He was considered to suffer depression following a work-related knee injury and inability to keep working. He was treated with the antidepressant medication, sertraline. The psychologist noted chronic pain, anger, relationship stress, panic attacks, alcohol use and taking more antidepressant than prescribed. He was noted to experience suicidal ideas when taking antidepressant medication at high dose combined with alcohol. He was seen for at least 20 sessions across two years. He said that he had told his psychologist about the voices (this is not confirmed in the psychologist's notes). He said that the psychologist used distraction techniques which he felt did not help with the voices.
Dr Ellis reported that the accused was referred to psychiatry on reception to custody given his age, the nature of the charges and his distress. He was seen by forensic psychiatrist Dr Dayalan on 4 August 2020. A history of hearing voices from age 13 and ongoing was taken. The voices told him what was right or wrong. The accused reported receiving messages in the form of clues from the television which he found scary. He believed people were talking about him. He spoke quickly. He presented as distressed and agitated and was commenced on a low dose of the antipsychotic medication olanzapine. A mental health nurse reviewed him on 9 August 2020. He continued to report hearing voices and seemed improved in his self-care and presentation. He was refused medication on one occasion as he did not have his identification card with him.
Dr Dayalan reviewed him again on 25 August 2020. He presented as improved, exercising, and sleeping better. Sertraline was re-commenced to assist with anxiety. He continued to report hearing voices, but they were not commanding him to do anything. He told a prison psychologist on 7 October 2020 that he was receiving messages from the television and had thoughts of hanging himself. Dr Dayalan reviewed him on 20 October 2020. An increase in olanzapine had improved his ruminating. He continued to report hearing voices and messages from the television. By 1 December 2020 the voices had improved with the increase in olanzapine, and he was not watching television as he believed it talked about his case.
The accused denied any history of self-mutilation.

[33]

Mental State at the Material Time

Dr Ellis opined that the accused suffered from a mental health impairment - a psychotic illness, with the exact diagnosis to be determined longitudinally - which was characterised by delusions and hallucinations. At the time of the offences the accused was not receiving treatment for this condition. His presentation on reception to custody is consistent with this diagnosis as is his overall history. He was likely suffering from delusions and hallucinations across this period of time of "the offences." In addition, he was using ice which likely exacerbated the frequency and severity of his symptoms of psychosis.
Dr Ellis reported: Psychosis can be considered a "mental health impairment" as it is a clinically significant condition for diagnostic purpose in all major classifications of mental disorder. The disorder in his case impaired his thought by delusions and his perception by hallucination. Psychosis is an ongoing disorder and has temporary exacerbations. Although he was using substances, this was not the sole cause of his presentation. When unwell psychosis impairs his emotional wellbeing, judgment and behaviour evidenced by disorganised behaviour, bizarre acts such as walking in traffic, unexplained hostility to family and strangers and significant distress in other settings relating to thoughts of self-harm and harm to others.
Dr Ellis opined that it is likely that the accused's belief that the deceased was a paedophile was delusional in the intensity in which the belief was held, that it took flimsy evidence for him to determine with certainty that it was true, and the associated extreme anger and motivation to act immediately that accompanied it. The voice the accused heard confirmed this belief. He experienced intrusive thoughts of murder related to it. The description of his behaviour indicated that he believed the deceased was a paedophile (as he was calling this out), and an extreme attack upon a stranger is consistent with not being able to reflect with composure on whether a course of action is right or wrong.
Dr Ellis reported that the accused typically deferred to his voice as to what was right or wrong. It is likely he knew that setting a fire would harm someone (and it is his stated intention that the fire was to lure Mr Johnston out so he could fight him), therefore he knew the nature and quality of his act. His evasive interview with police is consistent with being suspicious and uncertain of what course to take after the event.
Dr Ellis reported that on the basis of the accused's history of abnormal mental state before and diagnosis with psychotic symptoms after the charge, his account of his mental state and observations of his behaviour at the time and closely after it is likely that a court could find the defence of mental health impairment open to him.

[37]

Past Psychiatric History

The accused stated, "the doctor says I got schizophrenia." He confirmed that he was 23 years old when he was first treated for mental health problems. He said he had seen Dr Saladin at Shoalhaven Heads Medical Centre. He said he had also seen Dr Tony Weaver, psychologist in Nowra. He said he had initially been prescribed 250 mg Zoloft (sertraline, an anti-depressant medication) daily.
The accused was first admitted to a mental health facility at Franklyn hospital in 2019. He said he was hearing voices at the time and that he was admitted for one month. He said he was treated with Zoloft and "some other tablet." He said he was re-admitted for two weeks in the same year. He said he was having "psycho episodes."
The accused said he took his medications until about six months prior to the alleged offence. He said, "I felt like I didn't need it because I was on ice and I thought I was doing good on it." He said he was using ice to "self medicate." He said he started using ice occasionally on weekends. He said his use increased until he was using it every day. He said he got "paranoid really bad thinking people were after me, the police were after me, my girlfriend setting me up to get me bashed." He said, "she used to tell me it's all in my head."
Dr Eagle reported that the accused said that he previously cut his wrists in a deliberate act of self-harm. This differed to the Dr Ellis report in which the accused denied any history of self-mutilation. Dr Eagle reported that the accused said he tried to hang himself on at least three occasions. He said this was because "I couldn't control my anger and that. I was frustrated, angry and paranoid. I thought my girlfriend was cheating. I could hear the voice. It was like it was telling me to do it."
The accused denied any childhood diagnosis of mental health problems. He denied being diagnosed with Attention Deficit Hyperactivity Disorder. He said he had seen counsellors for learning difficulties. He said he could not read and write as a child and continued to have difficulty reading and writing.

[39]

Account of the Alleged Offence

Dr Eagle reported that the accused said he was hearing a male voice "telling me to kill myself and self-harm and harm other people." He said the voice was in the first person. He said he spoke back to the voice. He said the voice got worse when he was frustrated. He described feeling frustrated and angry. He said he was paranoid "that people were after me." He said there was no one specifically who was after him.
Dr Eagle reported that the accused said that the deceased was a neighbour. He said, "I've never met him before." He said "his other neighbours and Natalia Sutton, they told me he was a paedophile and he was putting Valium and sleepers in their mailbox and saying in a letter 'call Cameron for a good time.'" He said he then heard a voice saying "'you need to do something about this because I was raped." He said he was told that the deceased was a paedophile about two weeks before the alleged offence. He said, "I was sort of burning on it." He said, "I never seen him." He said "that night I was walking towards my house, and he pulled up in the driveway. I called him a fucking dog. We had an argument and he was yelling at me and ran inside. He was still yelling out to me. I ripped his lights down.… I went back to the house and got a sledgehammer and smash the lights on his car. He was still yelling out to me." He said, "I smashed the windows of his home." The accused said that he saw Rob Connolly who "gave me a stick with a T-shirt wrapped around the top and said said go light this guys car on fire."
The accused said that Mr Connolly also gave him a Tommy tipper baby bottle with petrol in it. He said he lit the car on fire. He said he then lit the curtains of the house through the front and side windows. He set the house on fire. He said "I thought I was just trying to scare him to get him outside. He ran out and then ran back in."
He said he was hearing a voice telling him to bash the deceased. He said nothing made the voice die down and the voice was intense. The accused was asked about the ERISP he had conducted with police. He said, "I told em I was on Ice and I never lit the fire." He said, "I tried to lie myself out of it so I could get bail."

[43]

Diagnosis

Dr Eagle reported that the accused's "account of his experiences would suggest a diagnosis of schizophrenia." The accused described experiencing persecutory and referential delusions and auditory hallucinations. He has also described hearing his thoughts spoken out loud. He said he started hearing voices when he was about 23 years old.
The nature and onset of these symptoms are consistent with a psychotic episode. The accused acknowledged the use of methylamphetamines, and that his substance use has exacerbated his symptoms. He appears to have significantly declined in his behaviour and function since his early 20s, also in the context of methylamphetamine use. The accused has been treated for ongoing symptoms of psychosis since his incarceration and has reported an improvement on treatment. He has reported a family history of schizophrenia indicating a biological predisposition to severe mental illness.
Dr Eagle reported that the accused appeared to be an unreliable historian, giving different accounts of the onset of his symptoms (for instance, 13 years old to clinicians at Justice Health) and a false account of lighting the fire during the ERISP.
There is some objective evidence of psychotic phenomena prior to his incarceration, although he had a number of presentations to Franklin hospital in the context of intoxication and physical health difficulties. There is some objective evidence of odd comments made to witnesses around the time of the alleged offence including, for instance, that Skye's daughter was his child and during the ERISP interview that are consistent with a psychotic episode. On balance, Dr Eagle was of the view that the accused most likely has a psychotic disorder, schizophrenia.
The accused appeared to display signs and symptoms consistent with a depressive episode following his workplace injury in about 2016. The accused has a severe substance use disorder. He has acknowledged excessive consumption of alcohol and use of cocaine and methamphetamines.

[44]

Mental Illness / Mental Condition at the time of the Alleged Offence

Dr Eagle reported that the accused described hearing a male voice talking to him at the material time. He described the voice telling him to harm the deceased. He believed the deceased was a paedophile based on information apparently provided to him by his neighbours. He also stated during the ERISP that the deceased had nearly hit him with his car as he was walking by with his neighbour's daughter and had slowed down as he was walking by at other times, indicating a heightened persecutory perception of the deceased's actions. He also reported hearing the deceased abusing him and calling him a "wanker" in a manner that does not appear consistent with the other witness evidence. These experiences may also be auditory hallucinations or referential phenomena.
The accused acknowledged being intoxicated with methylamphetamines and alcohol at the time of the alleged offence. He said that the auditory hallucinations, his belief that the deceased was a paedophile and hearing the deceased abusing him influenced his behaviour at the time of the offence by fuelling rage and frustration at the deceased. He said his intention was to scare him to get him outside, rather than kill him. The accused continued to report auditory hallucinations, and referential ideation continuing for several months after his arrest, inconsistent with a drug induced psychosis.
Dr Eagle reported that the accused's account of his symptoms is consistent with a psychotic episode. She was of the view that, subject to his account being accepted by the Court, the accused most likely had a mental health impairment (arising from a psychotic disorder) at the time of the alleged offence that was exacerbated his intoxication with methylamphetamines and alcohol. Psychosis is a severe disturbance that impaired the accused's emotional wellbeing, judgement and behaviour and resulted in a disturbance of his thoughts, mood, and perception. The disorder would be considered significant for clinical diagnostic purposes. The psychotic episode was not the temporary effect of ingesting a substance but more likely part of an underlying disorder such as schizophrenia.
In her supplementary report, Dr Eagle reported that it was less likely that the accused feigned or exaggerated the voices. He did not voluntarily raise the mental health defence, for instance he does not maintain the "voices made him do it", even in consultations with either psychiatrist. The voices were elicited by Dr Eagle with specific careful inquiry. The voices are typical of schizophrenia. He has also reported the experience to clinicians, received treatment and his experiences have been reported to have improved on a therapeutic dose of an antipsychotic medication. He gave various alternative rationales for his offending, that have nothing to do with mental illness. Dr Eagles reported that in her experience, there is no structured or reliable assessment of whether the reporting of a previous specific psychological or psychiatric symptom has been feigned. There is a structured assessment to determine if a person is feigning psychological symptoms (SIRS 2, Structured Interview of Reported Symptoms, version 2). The accused did not endorse or describe symptoms that are atypical and he had reported that his symptoms have significantly improved on treatment. It is unlikely that a SIRS 2 assessment would add value in this case.

[49]

Diagnosis and Considerations under s 4 of the Act

When asked how her ultimate diagnosis fits within s 4(1)(a) of the Act, Dr Eagle gave the following evidence which also traversed the diagnoses of a psychotic disorder: WITNESS EAGLE: Certainly, so a mental health impairment is defined as something that causes a person to have a temporary or ongoing disturbance of thought, mood, volition, perception or memory. The disturbance is regarded as significant for clinical diagnostic purposes and impairs the emotional wellbeing, judgment and behaviour of the person. So my opinion is that Mr Thompson has a psychosis or a psychotic disorder at the time of this alleged offending and that that psychotic disorder resulted in symptoms such as delusions and hallucinations, in addition to impairments in his thinking, so disorganised thought processes, impairments in his judgment and in his behaviour and disturbances of his thoughts and his mood and his perceptions. Psychosis is a severe-- CROWN PROSECUTOR: Sorry, just stopping at paragraph 1(a). WITNESS EAGLE: Yep. CROWN PROSECUTOR: So using the terminology of disturbance, can you-- WITNESS EAGLE: Yep. CROWN PROSECUTOR: --explain how, in your opinion, the accused had a temporary or ongoing disturbance of some or more of those five areas? WITNESS EAGLE: Certainly, what I need to do though is describe the effect of psychosis on a person to be able to do that. So psychosis is a severe psychiatric condition and it results in global disturbances of a person's thoughts and experiences and so that would include, for instance, not just positive symptoms, but if we take positive symptoms such as delusion and hallucinations, they result in disturbances of thought and disturbances of perception, so they influence the way the person experiences their reality. They also, but psychosis also results in changes in a person's mood and changes in a person's perception of their experiences in the past, as well as in the present, so in that way, psychosis can also impact or result in a disturbance of memory. But I suppose most significantly, psychosis causes an overall disturbance in the way a person is able to think and sort of weigh up aspects of thinking, so using reason. So that's why I would say that psychosis impacts a person's - well causes a disturbance of thought, mood, perception and potentially memory.
Notably, this exchange simultaneously provides Dr Eagle's opinion as to s 2(c) of the Act.
Dr Eagle explained that the accused had lots of disturbances of his thinking, including a distorted perception or a very paranoid view of the deceased being a paedophile and potentially intending to cause him or his daughter harm. (She opined that these beliefs were also potential referential ideations).
Regarding the accused's memory, Dr Eagle explained that: Psychosis can generally cause a disturbance of memory in the sense that if a person is preoccupied with delusions and hallucinations and they have fragmented thought processes or disorganised thought processes, then their ability to subsequently recall their experience, is influenced by those symptoms at the time. So they will recall, potentially a psychotic or a distorted version of what occurred, that's influenced by their mental state at the time and that is a disturbance of memory. They can also, if they are highly distressed, or their thoughts are very disorganised, have a poor recollection of events because of that, because if your thoughts are disorganised, then you are unable to imprint memories in a sequential manner and as such you are unable to retrieve those memories in a clear sequential way. Memory is inherently unreliable in any event, though, I have to say.
Regarding s 4(1)(b) of the Act, Dr Eagle affirmed that a psychotic disorder reaches the clinical diagnostic threshold for the purposes of a number of classifications systems and warrants treatment and intervention which the accused has received. In her opinion, the accused reaches a diagnosis of psychotic disorder under DSM-V and as such is significant for clinical diagnostic purposes.
Regarding s 4(1)(c) of the Act, Dr Eagle opined that the accused is experiencing auditory hallucinations and delusions which are positive symptoms of psychosis. These prevent a person from being able to determine what is real and not real and as a result they significantly impair a person's judgment, their ability to weigh up and to reason as to the wrongfulness of their actions, impact upon their perception of events. Those symptoms also influence how the accused might react or respond. She stated: Psychosis or psychotic symptoms can also cause disorganisation of a person's thought processes and that also impacts or prevents them from reasoning or thinking about their behaviour and their actions and, as such, impairs their judgment in that way, but psychosis can also - or psychotic symptoms such as hallucinations, delusions and disorganised behaviour and disorganised thought processes can also cause mood disturbances. If someone is fearful or paranoid due to certain symptoms, then they can have emotional reactions and responses as a result of those symptoms.
In terms of disorganised behaviour, Dr Eagle pointed to evidence such as the messages the accused sent at the pub, which were disorganised, the accused running around and going in and out of places, his attack on the deceased's home (and his leaving and coming back ), and his yelling at the deceased. Dr Eagle opined that the accused suggested that the deceased may hurt or may have been trying to hurt his daughter, which is consistent with a disorganised narrative, a psychotic rationale. That the accused reported the deceased was yelling at him was, in Dr Eagles opinion, an auditory hallucination. His overall presentation as described from witnesses was evidence of disorganised behaviour.
Dr Ellis agreed with Dr Eagle with respect to the accused meeting the definition of mental health impairment in s 4 of the Act.
Dr Ellis agreed that it would be consistent with a delusion of surveillance that the accused believed the deceased was driving past him slowly, potentially a delusion of persecution about the deceased considering the accused reported he had never met the deceased before. Dr Ellis agreed that it is possible that the accused thinking the victim was calling out to him and making derogatory comments towards him was also a hallucinatory experience.
Dr Ellis opined that the accused was experiencing thought insertion, a psychiatric symptom, because of his intrusive thoughts about murder which he reported having at the time of the offence and at the time of his interview with Dr Ellis. Dr Ellis also indicated that there is a possible correlation in that people with schizophrenia can form delusional beliefs about complete strangers and then act upon them.

[50]

Considerations under s 28 of the Act

Both experts agreed that, although the accused did know the nature and quality of the act of lighting the fires, he did not know the act was wrong because he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
Dr Eagle explained that the accused's experience on the night of the incident, namely, feeling angry, believing that the deceased was a paedophile, hearing a voice and hearing the deceased yelling abuse at him, would have reduced "significantly, if not completely impaired his capacity to think rationally or to reason about his actions in a composed way." She stated: In response to the fact that he believed he was a paedophile, he suggests that he felt the deceased might hurt his daughter but I think just generally someone who is in the throes of a psychotic episode like this they're unable to think about things in a measured, calm and rational way. So they're unable to reflect on their actions. They're unable to consider whether what they're doing would be perceived by others as morally wrong. They might acknowledge or they might understand that what they're doing is legally wrong but they feel an intense justification as a result of these symptoms and experiences for what they're doing, and in Mr Thompson's case I think he felt an intense justification at the time as a result of his belief that the deceased was a paedophile and in the context of those other experiences such as the auditory hallucinations and the referential ideas that what he was doing was actually morally righteous rather than wrong.
Dr Ellis agreed with Dr Eagle, adding that: hallucinations and inserted thoughts as well go to the ability to think clearly about what's occurring. The developments of the belief that the victim is a paedophile, although there is some evidence that local people in the community held the belief, he believed it with absolute certainty and there was nothing - and he was provided with no more evidence than the other people in the community were, and he - so this is an example of a delusional belief, even though it's somewhat shared with the other people around him, he has adopted it with unshakeable certainty and it's associated with this extreme angry and the need to act upon it.

[51]

Lies told in his interview

Both Dr Ellis and Dr Eagle opined that the lies the accused told in the interview could suggest that the accused did not appreciate what he was doing was wrong at the time. Dr Eagle stated: I think this is why we do make a distinction between knowledge of legal wrongfulness and knowledge of moral wrongfulness, because people can appreciate that something might be illegal, even though they might be influenced by psychotic phenomena, or may even have impaired judgment. At a very gross, simple level they understand often that serious crime at least is illegal and they may not be able to reflect with composure as to the consequences of illegal activity, but they may be aware that it's illegal and Mr Thompson was clearly aware that he might be incarcerated for what had occurred. However, I don't think that he was able to reason as to the moral wrongfulness of his actions and I think even in the subsequent weeks to months when he spoke to myself and Dr Ellis I still don't think he understood the moral wrongfulness of his actions. I still think he felt justified because he believed the paedophile - the belief that the deceased was a paedophile, he believed that the deceased potentially wronged him or was going to wrong him in some way. You know, he was still being influenced by even the partially treated or reduced intensity of those delusions and his memory of the events and I think it's that ability to reason with composure or with sort of a rational process that was - that Mr Thompson did not have the capacity to do at the time.
Dr Eagle acknowledged that the accused had lied about lighting the fires in his interview and explained that the accused had admitted he was motivated to get bail. Dr Eagle also pointed to the fact that the accused also made relatively self-incriminating statements in the interview. Dr Eagle opined that the accused "genuinely believed at the time that his voices were not a symptom of mental illness and would likely have experienced them as part of his natural being or as something that wasn't necessarily a symptom of a disorder and that is characteristic of people who experience psychosis by definition, they don't recognise these experiences are part of a mental illness."
Dr Ellis agreed with Dr Eagle and added: yeah, the telling the lie in the police interview is I don't think also great evidence of composed reasoning itself. I think like Dr Eagle's description of it as a naïve motive I think is - would be apt.
The accused also lied about the amount of drugs and alcohol he had consumed on the day of the alleged offence. Dr Eagle explained it is not unusual for people to minimise their drug and alcohol use because they instinctively recognise that it is not something that is beneficial for them to volunteer.

[52]

Inconsistencies in accounts

The accused was inconsistent in his reports of when he was hearing voices. Dr Ellis opined that the inconsistencies within the accused's account were "minor" and "understandable within the context of someone whose undergoing a relatively stressful interview with a stranger". He explained that if someone reports symptoms with "exactitude" it indicates more suspicion for rehearsal than the alternative.
Dr Ellis also explained the inconsistencies in the accounts given by the accused to both doctors and in police interview by the different stages the accused was at in his treatment and the differing motivations of where each interview occurred. He stated: [S]omeone who's both intoxicated and psychotic and in an extreme state of emotion lays down their memories for events in a much more haphazard way than someone who's in a sort of quiet reflective state.
The accused gave inconsistent accounts about why he lit the fire to the experts and to his mother in the letter he wrote her. Dr Eagle was not concerned about the variety in the accused's accounts of his intentions in relation to him feigning symptoms. She stated: His description of the day and the complexities of his account of what he was experiencing, I think is actually consistent with a genuine account. Motivation and behaviour is complex and it's very rare that somebody behaves, particularly in a sustained way like this, as a result of one's believe or one symptom, particularly if they're acutely psychotic and intoxicated. I think what he was saying was that his behaviour was due to a variety of factors, which I think is entirely believable and likely genuine. He was already angry because he'd had a falling out and we know that strong emotions can exacerbate symptoms of psychosis and he was intoxicated, which he acknowledged. He said that he believed the deceased was a paedophile as a result of a variety of things, including that his neighbours indicated that he was. He said that this made him even angrier. Well, he indicated this made him angrier because of his own experience of trauma, which is reasonable and, in my experience, you know, plausible. And then, on top of that, he started experiencing or was experiencing hallucinatory symptoms. So, not only was he hearing the deceased abuse him, which would have fuelled his anger further, but also he was hearing his own voice, not his own voice but his own experience with a male voice that was more ongoing, that then weighed into this situation.

[53]

The ingestion of drugs and/or alcohol as an alternative explanation for his behaviour

Both experts agreed that, although the accused has a substance abuse disorder, it is not the sole cause of his presentation.
Dr Eagle explained that: I mean, methamphetamines is known to be able to cause delusions and hallucinations during periods of intoxication. Alcohol can certainly reduce control, it can increase emotional distress and, in some cases, chronic alcohol use can cause hallucinatory experiences and even delusions. I think that the reason that, or my opinion that this is not a temporary intoxication due to illicit substances and alcohol is in the fact that Mr Thompson continued to describe these symptoms in custody, when he was being assessed by Justice Health clinicians, including a forensic psychiatrist, Dr Dayalan. He described the symptoms consistently, in my view, with a person who had a psychotic illness. The symptoms continued, despite receiving treatment and only started to reduce in intensity when his anti-psychotic treatment was increased in a way that is consistent with someone who is responding to treatment, who has psychosis. He still described, what we could call attenuated symptoms, during Dr Ellis' assessment, but also during my assessment, for instance when he felt stressed or in the events, he had what we also sometimes call breakthrough symptoms, so he experienced that voice again and I think that's characteristic of psychosis. So these symptoms have persisted well beyond any period of intoxication and withdrawal and that would make it inconsistent with a temporary condition, that's caused by substances.
Dr Eagle opined that the clinical records from the time in which the accused ran onto the road in Victoria indicated that at least some clinicians felt that the accused was psychotic. She explained that this incident could have been the result of methamphetamine related psychosis, or it could have been a brief psychotic episode that was related to his chronic psychotic disorder. The accused himself reported experiencing auditory hallucinations for years, since he was 23 at least, which is consistent with a chronic psychotic disorder probably in the context of substance abuse.
Dr Eagle stated: And what's becoming more, I suppose apparent, is that people with methamphetamine related psychoses, so people who take methamphetamine and become psychotic, have or go on to have a high rate of diagnosed schizophrenia. Some research tools suggest up to 33 to 40 per cent and so there are clearly shared pathways between people with vulnerabilities for experiencing psychotic symptoms during methamphetamine intoxication and chronic psychotic illnesses. Having said that, in psychiatric experience, a disorder would tend to be considered methamphetamine intoxication rather than a psychotic disorder, if the symptoms are limited to say less than one to two weeks, so less than a period of intoxication and prolonged withdrawal and tend to go away without treatment. It becomes difficult when people take methamphetamines and immediately get treated with anti-psychotic medication because that could address the symptoms, whether or not it's part of a disorder or intoxication. But if those symptoms go away without treatment within a few days, but not more than a few weeks, then it would be usually considered likely to be a methamphetamine intoxication and if it lasts longer than a few weeks, or require treatment to get rid of the symptoms, then it would be considered a psychotic disorder, in general.
Dr Ellis agreed that with the benefit of hindsight the accused suffered from an underlying psychotic disorder that has been made worse by substance use, considering the unusual episodes in Victoria. He explained that in August 2019 (in Victoria) clinicians found the accused difficult to take a history from and queried whether he had a drug induced paranoia at that stage. Dr Ellis suggested if a person had been running onto the road and reported a history of hearing his thoughts aloud then that might have piqued his interest to ask more questions, but considering he was intoxicated, emergency doctors and general practitioners may not have focused on these symptoms.
Dr Eagle agreed with Dr Ellis, adding that unfortunately in psychiatry the emergence of psychotic illness is not discovered until it is almost too late. Earlier signs can be explained by substance or other factors, "but if we now are looking back at the whole picture it becomes much more apparent that this deterioration, the timing of it and Mr Thompson's presentation now is all consistent with a chronic psychotic illness such as schizophrenia." The history of the accused provided by his mother demonstrates the onset of aggression and violence in the last few years leading up to the alleged offence. Dr Eagle explained that this forms part of the functional decline observed when people are developing a chronic psychotic illness. The accused went from being employed and productive and leading a relatively stable lifestyle to deteriorating.
Dr Ellis agreed that the accused had a significant change in his behaviour that his relatives were able to identify. Dr Ellis opined that the letter the accused wrong to his mother was disorganised and hostile and could indicate that he held persecutory beliefs toward her.
Dr Eagle explained that substance abuse and mental illness symptoms can have a similar appearance.
Dr Ellis stated: I think that this evidence speaks to it more being an underlying schizophrenic illness, as opposed to a temporary drug induced psychosis because it's over a period of months and there's a gradual resolution of the symptoms with treatment, plus the treatment needs to be increased as well, so the symptoms are not resolving on their own and they're not resolving quickly.

[54]

The possibility that the accused had feigned symptoms

This longitudinal picture - the accused's history of hospitalisation in Victoria in 2019, the medical records by clinicians in Victoria, the significant functional decline of the accused and change in his behaviour identifiable by his relatives was used by the experts to explain why the accused is not feigning his symptoms.
In Dr Ellis's view, one of the reports by the accused when he was admitted to hospital in Victoria on 2 November 2019 amounted to the symptom of echo des pensée, which he described as "a very technical psychiatric term of hearing your own thoughts spoken out loud, again, the general population are extremely unlikely to know about and many psychiatric registrars will fail in their exam on that kind of question." Dr Ellis opined that, because it is such a rare symptom, it is more likely he was experiencing that symptom than the hypothesis that he had learnt it somewhere.
Dr Ellis explained that the serial evaluation (notes made over time) by Dr Dayalan reduced the risk of feigning because he was able to see the accused again and again. Dr Eagle agreed that it adds weight to the proposition that the accused has a genuine illness because the nature of his symptoms were consistently reported to Dr Dayalan.
Dr Eagle explained that: There's always a possibility that people in contexts such as this are feigning symptoms and Mr Thompson's account is unreliable and he's acknowledged that he was not honest during at least the police interview. The reason why overall I am of the opinion that it's more likely Mr Thompson was experiencing these symptoms is the way he describes them is characteristic or consistent with how people describe these symptoms when they have chronic psychotic disorders. Often what people will say if they want to endorse a symptom that they may not be experiencing is, you know, "I hear the TV talking to me," or, "I hear the radio talking to me," but they don't provide specific information about how that experience occurs. Mr Thompson first raised this, for instance, during the ERISP interview at a time when he clearly wasn't - well, he didn't appear to, at least, be suggesting that he had a mental illness that had influenced his conduct and he actually said that the only thing that is when the media was saying, quote, did you do something to Mr Johnson or whatever his name is, and that is a specific example of a referential idea or belief and it's given, you know, in detail. Whereas normally someone would just say, "And I heard the TV talking to me," as part of a psychotic illness. So I think the description of his symptoms suggests they're more consistent with a psychotic illness than someone who's trying to feign symptoms but you can never be 100% sure and people with mental health disorders, they do feign and exaggerate symptoms for various reasons. The most common reason is they actually deny they have symptoms when they do have symptoms because they don't want treatment.
Dr Eagle also explained that the clinical notes reflect the accused's improvement in symptoms which is consistent with a genuine disorder. That the accused reported the voices being worse when he was alone, in the evenings or when he was distressed is also characteristic of somebody experiencing the symptom.
Dr Ellis agreed with Dr Eagle, adding that it was unlikely that someone could describe how the voices developed, what they were like and what sort of things they said to him like the accused did without having read textbooks in great detail to learn how that presents. Dr Ellis explained that he had included questions to screen for feigned kind of presentations and the accused did not respond to any of those. He explained that the accused has a circumscribed set of symptoms that are unique to him, which is consistent with a genuine disorder, rather than responding "yes" to every symptom. (Dr Ellis did not formally measure the accused's intelligence in a structured way but looking at his schooling and employment background he suggested the accused to be in the less than average range).
Dr Ellis explained that: The general social decline and cognitive impairments that goes on with a longer term mental illness and looking at the, you know, the descriptions of his behaviour over time also assist in determining whether this is a feigned presentation or someone who is genuinely experiencing an illness, and my view is that it was much more likely that he was genuinely experiencing an illness.
In terms of process, Dr Ellis explained that "a psychiatric diagnosis is more than just listening to a person's account of their internal experience. It's comparing that to the collateral information that's available and a knowledge of the typical presentations and symptoms and a knowledge of the time course of various illnesses and an observation of the person during an interview in a structured way. So there are multiple points of data used to form a conclusion." Dr Ellis explained that this process and the experience of working as a trained psychiatrist allows for the detection of some things that a general clinician, doctor or nurse (like those who have reviewed the accused in the past), might not pick up on.
Dr Eagle did not interpret the accused's call to Ms Monk to suggest he was motivated to establish a particular defence. She explained that during the interview it is unlikely the accused would have been aware of the potential mental illness defence whereas months later on the phone to Ms Monk he had likely been informed of this defence by his lawyers.

[69]

CONSIDERATION

As the Court has found that the Crown has established beyond reasonable doubt the first element of the offence of murder, the central question in this trial is whether the accused, having raised a mental health impairment defence, has established that defence for the purposes of s 28 of the Act on the balance of probabilities.
That question may not be properly answered solely by reference to the opinions of the experts, even though they firmly held a view that the accused had a mental health impairment, as defined in s 4 of the Act, arising from a psychotic disorder (Dr Ellis diagnosed an underlying mental illness such as schizophrenia, schizoaffective disorder (depressive subtype) or depression with psychotic features that has been exacerbated by substance use, and Dr Eagle, schizophrenia), and both experts opined that the accused did not know the act resulting in the charge brought against him was wrong, that is, a person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
The Court must determine whether the defence is established having regard to the entirety of the evidence, in a context where the experts found the accused did know the nature and quality of the act, a conclusion not disputed by the defence.
In substance, the Crown contended that the Court should be cautious in accepting the expert opinions in circumstances where their opinions may be undermined to the extent they relied upon the self-reporting of the accused in circumstances where he had been shown to be unreliable and dishonest in his statements to police and had given inconsistent accounts to the experts and his mother regarding his motives for lighting the fires. Issues were raised as to whether he had feigned his mental condition or malingered in order to reduce or eliminate culpability or the gravity of the charges brought against him.
The defence accepted that the bases for the expert opinions relied, in part, upon the accused's unreliable accounts but contended the experts had considered those issues and, on balance, found them not to be overall decisive in excluding the defence. Strong reliance was placed upon the objective evidence which was relied upon by the forensic psychiatrists to reach their opinions, independently of the accused's self-reporting and the careful approach adopted by the psychiatrists in assessing the accused discern any malingering.
There are four significant matters which require mention at the outset of these considerations which, in my view, significantly bear upon the acceptance of the expert opinions and ultimately a finding that a defence had been made out.
First, as Button J observed in Carter, while the Court is not compelled to accept joint opinions of experts of the kind the Court has received in this trial, they are nonetheless highly significant. The evidence should not be rejected unless there is evidence sufficient to cast real doubt upon the psychiatric evidence.
Secondly, there was no dispute that Drs Eagle and Ellis are eminent forensic psychiatrists. The formulation of their ultimate opinion was based on rigorous and extensive inquiries across a wide range of sources (including the ERISP of the accused, statements of witnesses, the letters written by the accused to his mother and ex-partner, and various other medical records) using screening techniques for testing the veracity of accounts given by the accused.
The questioning undertaken by the experts was designed to elicit information and identify feigning of symptoms. Nonetheless, the accused responses were consistent with what the experts had observed in other settings and did not replicate a lay persons understanding of schizophrenia.
Further, the experts drew upon their extensive experience with psychiatric patients including those suffering from chronic mental illness and those experiencing substance induced psychotic symptoms without an underlying illness.
Overall, I consider the experts gave frank and convincing opinions while also acknowledging and dealing with the countervailing factors bearing upon their opinions.
Thirdly, the opinions of the experts were predicated upon considerations which extended well beyond the self-reporting by the accused, or which corroborated the accused being in a psychotic state at the time of the alleged offending, as follows: 1. The clinical roles of other medical practitioners examined by the experts demonstrated a change in behaviour by the accused leading to events in 2020 including increased aggression and disorganized behaviour and thinking including a fixation with a bystander. With a retrospective analysis, this appeared to be the onset of mental illness which was not treated at the time. 2. The records from Peninsula Health which refer to the accused being brought to hospital in Victoria in November 2019 after running onto a road with suicidal intent suggest that at least some clinicians suspected the accused was psychotic at that time. He was intoxicated at that time but reported that he had not been using methylamphetamines for three months. 3. The accused has been reporting experiencing auditory hallucinations since he was 23 at least, consistent with a chronic psychotic disorder. 4. This longitudinal picture - the accused's history of hospitalisation in Victoria in 2019, the medical records by clinicians in Victoria, the significant functional decline of the accused and change in his behaviour identifiable by his relatives for the period leading up to the alleged offences was a significant factor in why the experts rejected the notion of the accused feigning his symptoms. The history of the accused provided by his mother demonstrates the onset of aggression and violence in the last few years leading up to the alleged offence. Dr Eagle explained that this formed part of the functional decline observed when people are developing a chronic psychotic illness. The accused went from being employed and productive and leading a relatively stable lifestyle to deteriorating. 5. Dr Ellis explained that the serial evaluation (notes made over time) by Dr Dayalan reduced the risk of feigning because he was able to see the accused again and again. Dr Eagle agreed that it added weight to the proposition that the accused has a genuine illness because the nature of his symptoms were consistently reported to Dr Dayalan. 6. The experts had regard to the accused's state in remand. The accused was assessed and treated over a period of time by Dr Dayalan, a respected psychiatrist. Dr Dayalan also assessed the accused as having auditory hallucinations both at admission and subsequently. The condition did improve but not rapidly. An increase in medication was required to reduce the symptoms. This has significance at three levels in terms of the accused's defence. First, another respected psychiatrist reached a similar conclusion to Drs Ellis and Eagle. Secondly, it is apparent that the mental illness would not resolve itself and would require medical intervention. The accused was not taking medications at the time of the alleged offending. Thirdly, according to Dr Eagle, the recovery period points against the accused having encountered a drug induced psychotic state as opposed to an underlying mental illness at the time of the alleged offending as it may be expected the former to have resolved after a few days or at most a couple of weeks rather than the months taken by the accused. Both experts considered this outcome was consistent with the evidence of an underlying mental illness. 7. The experts took into account the observations made by neighborhood witnesses of the accused which showed the accused engaging in odd behaviour at or about the time of the alleged offending. 8. The experts placed weight in reaching their opinions as to the accused being in a psychotic state at the time of the offending upon perceptions of the accused at or about that time such as the accused's account that the deceased had yelled abuse at him from the premises (which I have inferred did not occur) or the deceased driving slowly past the accused at various times (when, virtually at the same time, the accused stated he did not know the deceased). 9. The accused's verbal attack upon the deceased as being a pedophile was undertaken with a singular conviction, in absolute terms, where the evidence of the deceased by a pedophile was flimsy and questionable. The experts also attached significant to this matter in their diagnoses of the accused.
Fourthly, and noting the need to carefully examine the countervailing considerations raised by the Crown, Dr Eagle's account as to why the accused's diagnosed condition at the time of the alleged offending would meet the definition of mental health impairment in s 4 of the Act was convincing and essentially unchallenged. In summary, Dr Eagle stated as to the elements of s 4: 1. Regarding s 4(1)(a), the accused has a psychosis or a psychotic disorder resulting in symptoms such as delusions and hallucinations, in addition to impairments in his thinking, in his judgment and in his behaviour and disturbances of his thoughts, mood and perceptions. 2. Regarding s 4(1)(b), a psychotic disorder reaches the clinical diagnostic threshold for a number of classification systems and warrants treatment and intervention. 3. Regarding s 4(1)(c), the accused was experiencing auditory hallucinations and delusions which are positive symptoms of psychosis and impact a person's judgment by influencing their perception of reality. In the accused case they potentially provided a motivation for his actions, preventing him from being able to weigh up or reason as to the wrongfulness of his actions. 4. Regarding s 4(2)(c), the accused had a mental health impairment that arose from a chronic underlying psychotic disorder. 5. Dr Eagle explained that psychosis is a severe psychiatric condition that results in global disturbances of a person's thoughts and experiences and also causes a change in a person's mood, perception of their experiences in the past and can disturb memory.
In my view, these considerations present a compelling basis for the acceptance of the unanimous opinion of the experts as to the accused's mental health impairment and the availability of a defence under s 28 of the Act but may not be said to be determinative until a further assessment of the countervailing factors identified by the Crown is undertaken.
By way of overview as to that latter consideration, when regard is had to the explanations provided by the experts, I do not consider the countervailing factors, whilst relevant to the accused of the mental health impairment defence, should result in the Court finding the accused had not made out a mental health impairment defence under s 28 of the Act.
I turn then to consider, in that light, the foundations for that conclusion. My reasons are as follows: 1. It is true that the accused lied in his ERISP. He denied lighting the fire and he has since acknowledged that he did. He understated his consumption of drugs and alcohol on the day he lit the fires. However, in my view, Dr Eagle is correct in saying that the accused also gave self-incriminating responses in his ERISP. His admission as to attending the house of the deceased on the first two incidents was certainly inculpatory. Hence, the lies told by the accused were not definitive and were motivated by a number of reasons, namely the accused's desire to be given bail. 2. I accept the evidence that the lies the accused told in the interview could suggest that the accused did not appreciate what he was doing was wrong at the time and that as Dr Ellis explained, the accused's lies in the police interview itself is also evidence of uncomposed reasoning. 3. I accept the opinion of the experts that the lies the accused told in the interview did not as such suggest that the accused did appreciate what he was doing was wrong at the time. As the experts stated, the lies do not represent great evidence of "composed reasoning". It was a "naïve motive". Dr Eagle stated that, in terms of a psychosis, there is a distinction between knowledge of a legal wrong and a moral wrong. The accused may have reflected with composure as to illegality and its consequences for him but would have been unable to reason as to the moral wrongfulness of his actions at the time of his offending or in providing answers in his ERISP. The psychotic condition created a conviction for the accused to deal with a (supposed) paedophile. 4. I accept that it is not unusual that the accused minimised his drug and alcohol use because it is likely that he instinctively recognised that it is not something that is beneficial for him to volunteer. 5. The references to the deceased driving past the accused slowly, the yelling by the deceased and the media saying to him, "Did you do something to Mr Johnson?" evidence the accused's delusional thinking, them being, on any objective assessment of the evidence, not reality based. 6. The accused did not refer to hearing voices during the ERISP or in his letters to his mother or ex-partner, but as the experts opined, the accused appeared to genuinely believe at the time of the alleged offence (and his ERISP) that his voices were not a symptom of his illness and would likely have experienced them as part of his natural being. 7. Dr Ellis was of the view that some minor inconsistencies in the accused's account was, in fact, less concerning than if the report had been exact in its consistency throughout. 8. Regarding the inconsistencies in his account of why the accused lit the fire, Dr Ellis explained that the inconsistencies were occurring at differing points in his treatment. Further, Dr Ellis explained that it is likely he held persecutory beliefs regarding his mother. 9. Dr Ellis's view was that one of the reports by the accused when he was admitted to hospital in Victoria on 2 November 2019 may amount to the symptom of echo des pensée, which he described as "a very technical psychiatric term of hearing your own thoughts spoken out loud, again, the general population are extremely unlikely to know about and many psychiatric registrars will fail in their exam on that kind of question." Because it is such a rare symptom, it is more likely he was experiencing that symptom than the hypothesis that he had learnt it somewhere. 10. As I have mentioned, the accused's symptoms continued despite antipsychotic treatment and only improved when that medication was increased. This is consistent with someone who is responding to treatment because they have an underlying mental health condition such as a psychosis, rather than substances being for the sole cause or even the primary cause of his behaviour. 11. I accept the evidence of the experts that it is most unlikely the accused was feigning his symptoms which were more consistent with actual mental illness. As Dr Ellis suggested, it is unlikely the accused could have learnt from textbooks the responses he gave in interviews with the psychiatrists. Both experts had undertaken screening processes designed to detect malingering and none was detected. 12. As Dr Eagle suggested, the accused's phone call with Ms Monk in which he refers to being "knocked back" with respect to manslaughter can easily be explained as no more than conveying information that one would expect he would have been provided by lawyers at that point in time. 13. The accused had a defined set of symptoms, rather than ticking the boxes of all possible symptoms of psychosis. Further, it was not a simple, single assessment where the accused had managed to fool someone, but two forensic assessments and the clinical assessments of Dr Dayalan. The clinical records from years before the alleged offence, indicated that at least some clinicians suspected the accused was psychotic. These factors support a longitudinal diagnosis of psychosis and in my view, on balance, exclude the suggestion that the accused was feigning his symptoms. 14. Although the acts of the accused, if considered in isolation, could be explained by mere anger, the other factors (delusional thoughts, paranoia, the referential experience from the television) point to psychosis. Dr Eagle explained that the emotion of anger may actually exacerbate a psychotic disorder.

[70]

Is the Defence Established?

Having considered all the evidence placed before the Court, I am satisfied that the defence of mental health impairment is established and that a special verdict should be returned pursuant to s 31 of the Act.
For the reasons I have given, I accept the opinions of the two eminent forensic psychiatrists, Dr Eagle and Dr Ellis, that the two limbs of s 28 of the Act have been established. The accused has a mental health impairment as defined in s 4 or the Act and the accused did not know that, at the time of carrying out the act consisting of the offence of murder, namely, the lighting of the fire at the premises, the act was wrong.
The accused has a psychotic disorder (or psychosis) diagnosed as schizophrenia or schizoaffective disorder (depressive subtype) or depression with psychotic features. This has resulted in persecutory or referential delusions or auditory hallucinations. The condition is severe; although responding to medication, and results with global disturbances and experiences in the accused's thoughts and did so at the time of the alleged offence.
He experienced temporary or ongoing disturbances of thought, perception, mood and mostly likely memory. The disturbances were regarded by the experts as significant for clinical diagnostic purposes and the disturbances significantly impact judgment.
While the accused has a substance abuse disorder, his impairment is his underlying mental health condition and is not caused solely by the temporary effect of ingesting a substance or a substance use disorder.
There were countervailing considerations which were relevant to the assessment of the expert evidence and more generally as to whether the accused had made out a defence but I have found, for reasons given in my judgment, those factors did not ultimately diminish my acceptance of the expert opinion and were adequately dealt with by the experts. These factors do not result in the Court rejecting a mental health impairment defence.
I am satisfied that the accused knew of the nature and the quality of his act but did not reason with a moderate degree of sense and composure about whether the act, as perceived by a reasonable person, was wrong.
The defence is thus made out.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Thompson

Legislation Cited (4)

Mental Health (Forensic Provisions) Act 1990(NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020(NSW)s 28

Criminal Procedure Act 1986(NSW)

Evidence Act 1995(NSW)

Cases Cited (17)

Judgment

On 26 July 2022, the accused, Harley Thompson, was arraigned before me on an indictment dated 10 February 2022 which charged that, on 31 July 2020, at Bomaderry in the State of New South Wales he did murder Cameron Johnston ("the deceased") ("the alleged offence"). The accused pleaded not guilty on the grounds of mental health impairment.
On the evening of 31 July 2020, over a period of approximately one hour and a half, the accused attended the property of the deceased on Leonard Street in Bomaderry ("the premises") on three occasions. On the first two occasions, he damaged property of the deceased whilst yelling abuse at the deceased, a man he did not know ("the first incident" and "the second incident").
On the third occasion ("the third incident"), the accused returned to the deceased's house and set fire to the deceased's house. The deceased did not escape the house and died. An autopsy completed by forensic pathologist Dr Bernard I'Ons determined that the cause of death was carbon monoxide toxicity although it may be noted that the report also revealed that the deceased suffered burns to multiple areas of his body and soot was found within the pharynx, below the vertical cords and extending into the right and left bronchi.
Collectively, these incidents shall be referred to as "the incidents".
The trial proceeded before a Judge alone because on 25 March 2022, the accused signed a written election to be trialled by Judge alone having received advice in relation to the election from Mr Scott Fraser of counsel who appeared for the accused at trial and Ms Rosslyn Mayne, solicitor, who instructed Mr Fraser. The Crown consented to a Judge alone trial so that the Court was required to proceed in that manner for the purposes of s 132(2) of the Criminal Procedure Act 1986 (NSW) ("Criminal Procedure Act").
It was common ground that the applicable legislation providing the defence of mental health impairment in this trial was the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). That position is soundly based. Even though the alleged offence occurred, and the accused was charged, prior to the enactment of the Act on 27 March 2021, the savings and transitional provisions of the Act provide that it applies to proceedings commenced after the commencement of the Act.
Schedule 2 of the Act contains transitional and other provisions. Clause 5 of Part 2 of Schedule 2 provides for the continuing application of the Mental Health (Forensic Provisions) Act 1990 (NSW) to "proceedings for offences commenced before the commencement of Part 3 of this Act" until such time as "a determination is made as to whether a special verdict should be entered or the defence is no longer being raised".
In R v Tonga [2021] NSWSC 1064 ("Tonga"), Wilson J held at [10] that the expression "the commencement of the proceedings" should be construed narrowly such that the expression meant the present trial proceedings before the Court which commenced with the presentation of the indictment by the Crown. A similar approach was adopted by Johnson J in R v Siemek (No. 1) [2021] NSWSC 1292 at [9] ("Siemek"). With respect, I concur with the interpretation of Wilson J and Johnson J on the savings and transitional provisions which results in the conclusion that the Act applies to this trial, given that, at the earliest, the indictment was presented at an arraignment on 4 March 2022.

THE APPLICABLE LEGAL PRINCIPLES

In a criminal trial by judge alone, the trial is to be conducted in accordance with the requirements of s 133 of the Criminal Procedure Act which is in the following terms: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
By s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of an accused person and those verdicts have the same effect as a jury verdict.
The requirements of ss 133(2) and (3) are legal imperatives: Fleming v The Queen (1988) 197 CLR 250; [1998] HCA 68 ("Fleming") at [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) (which considered the identical predecessor of s 133(2): see Spiteri-Ahern v R [2022] NSWCCA 56 ("Spiteri") at [38] (Meagher JA, R A Hulme and Davies JJ)). I must set out the relevant principles of law and findings of fact upon which those verdicts are based: s 133(2). I must take into account any warning that the jury would receive: s 133(3).
In Tonga, Wilson J referred to the interaction between ss 132 and 133 of the Criminal Procedure Act and s 29 and 31 of the Act. Her Honour identified the task of the Court at a Judge alone trial where s 31 of the Act applied and stated at [98]-[100] as follows: 98. The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act. 99. Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31. 100. Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes.

Expert Evidence

There is expert evidence of forensic psychiatrists Dr Andrew Ellis and Dr Kerri Eagle. Dr Ellis produced a report ("the Dr Ellis Report") dated 23 May 2021. Dr Eagle produced a report on 20 August 2021 ("the Dr Eagle report") at which time she was in receipt of the Dr Ellis report. She wrote a supplementary report on 25 February 2022 ("the Supplementary Eagle report"). Both experts gave concurrent oral evidence. The experts addressed the defence of mental health impairment under s 28 of the Act in their respective assessments of the accused.
Prior to the enactment of the Act, it had been said that, although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174 (Barwick CJ, Owen and Walsh JJ)), the need to establish the elements of the defence made the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160 (Badgery-Parker J with whom Gleeson CJ and Clarke JA agreed) ("Tumanako").
An elaborate definition of "mental health impairment" now appears in s 4 of the Act (see [23] above) which requires the Court to consider whether, amongst other things, "a temporary or ongoing disturbance of thought, mood, volition, perception or memory … would be regarded as significant for clinical diagnostic purposes": ss 4(1)(a) and (b). The introduction of an assessment of the relevant "disturbance" as being "significant for clinical diagnostic purposes" means that expert medical evidence is now more than a practical necessity in cases where the s 28 defence is raised.
It remains the case that juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370 (Roden J); R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 655 [44] (Maxwell P with whom Vincent JA agreed) ("Klamo"). A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR (NSW) 20 at 31 (Walsh J); Tumanako at 161-163 (Badgery-Parker J with whom Gleeson CJ and Clarke JA agreed); R v Klamo at [44]-[50] (Maxwell P with whom Vincent JA agreed); Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme J and Bellew J). I do not have to act upon the expert opinion where the facts upon which the opinions are based do not accord with the facts as I find them to be.
The accused in this trial referred to the statement of Button J in Carter v R [2019] NSWCCA 11 at [319] ("Carter") concerning the evidentiary value of expert psychiatric evidence: [A]lthough it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system.

(2018) 232 CLR 438

(1988) 197 CLR 250

(1994) 174 CLR 500

(1970) 120 CLR 171

(2008) 18 VR 644

(2005) 63 NSWLR 490

[2008] HCA 8

Cited By (1)

R v Murray

The functions of the Tribunal are as follows: 1. To review a case of a forensic patient as soon as practicable after the court enters a special verdict of act proven but not criminally responsible. The Tribunal may make orders as to that person's detention, care or treatment or their release. 2. The Tribunal cannot make an order for the release of a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Tribunal must notify the Minister for Health and the Attorney General in advance of the release of a forensic patient and they may make submissions to the Tribunal in relation to the possible release of that person. 3. Where an order for release is not made, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal. 4. After the review referred to in subparagraph 1, the Tribunal must, at least once every six months, again review the case and make orders as to the forensic patient's continued detention, care or treatment in a mental health facility, correctional centre, detention centre or other place or as to his release. 5. If release is ordered, then it may be on conditions or unconditionally. If any condition is breached, or where the mental condition of the person has deteriorated so that he may at risk of causing serious harm to himself or to any member of the public because of his condition, a further order may be made by the Tribunal for the person's apprehension, care and detention. 6. Security conditions (as necessary) are in place while a forensic patient is detained in a mental health facility, correctional centre, detention centre or other place or if the person is allowed to be temporarily absent from the place of detention. 7. A person found "act proven but not criminally responsible" may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time.

R v Thompson

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (72 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (17)

Cited By (1)