R v Tran

THE CONDUCT OF THE TRIAL

1. A trial was conducted in a manner that raised no issue with the matters relied upon by the Crown to establish the elements of particularly count 1. However, the defence had retained Dr Richard Furst, who is a forensic psychiatrist, to report upon on the mental state of the accused, both as to his fitness to be tried and in respect of the issue of the available defence, if it be available, of mental illness.
2. The Crown retained Dr Olav Nielssen. I will come back to the detail of their evidence later. Both doctors were required to give oral evidence. They were largely cross-examined or examined by the Crown. Both of them were of the view on balance that the accused was suffering from a defect of reasoning caused by a disease of the mind. Although the character of the disease of the mind they differed upon. There were other opinions expressed again, I will deal with them in greater detail later.
3. Essentially the case was one concerned with the defence of mental illness. However, in respect of the issue of whether the defence is available to the accused a number of the circumstances surrounding the commission of the offence and the conduct of the accused both before and after the attack upon Mr Stuart are particularly relevant to understanding the basis of the opinions expressed by the two imminent forensic psychiatrists.
4. In this particular matter, by reference to the defence case, the only evidence in the defence case is that from Dr Furst. He was interposed in reality in the Crown case, whose case was run in a very sensible fashion by both the learned Crown and counsel for the accused, and Dr Furst's evidence was called to meet his convenience, for which the Court is grateful.

LEGAL PRINCIPLES

1. If I can turn to the legal principles to be applied. In respect of the charges brought against the accused I bear in mind, of course, the prosecution bears the onus of proving the elements of each count in the indictment where it falls for consideration. If the prosecution establishes beyond reasonable doubt the guilt of the accused and the defence does not establish the defence of mental illness in respect of Count 1 then a verdict of guilty would be appropriate in relation to Count 1. If the prosecution cannot establish each and all of the elements required to be established in relation to Count 1, I would turn to a consideration of Count 2. In respect of both counts if the accused raises the defence of mental illness and discharges the burden of proof upon him in respect of the matter I would acquit the accused of each count and return a verdict of not guilty on the grounds of mental illness in respect of each of the counts.
2. In respect of the matters requiring proof by the prosecution, that is proof of each of the elements of the respective charges, the burden of proof rests upon the prosecution throughout the trial in relation to those matters. The accused bears no onus of proof in respect of those matters, he is presumed to be innocent until such time as the prosecution can prove his guilt of a relevant count on the indictment. Each essential ingredient or element of a particular charge for consideration much be established beyond reasonable doubt. The accused bears no onus in relation to matters requiring proof by the prosecution. If there be a reasonable doubt that exits in relation to matters which the prosecution must prove then I must acquit the accused without regard to the defence of mental illness.
3. With regard to the elements of each of the counts on the indictment I do not propose to spend a great of time on these matters, but they are to be identified in the summation of the legal principles.
4. With regard to Count 1 the Crown must prove, firstly, that the accused caused grievous bodily harm to Shannon Stuart. I do not need to define the word "cause" but grievous bodily harm means "really serious bodily harm". In relation to Count 1 the Crown must further prove that the accused caused really serious bodily harm to Mr Stuart with the "intention to murder". With regard to intention or intent the words carry their ordinary meaning, the Crown must prove that the accused had the intention to kill Mr Stuart in respect of Count 1 in order to establish the elements of that particular charge. With regard to reaching conclusions about intention one can have regard to the surrounding circumstances in which the alleged assault occurred, the conduct of the accused in performing the assault, the contemporaneous statements made by the accused about his conduct and also any relevant statements made by the accused after the event amounting to admissions as to his intention so far as his actions were directed towards Mr Stuart. With regard to inferring a relevant intention the inference required to be established, of course, must be established beyond reasonable doubt. If there be any reasonable possibility of some other intention inconsistent with that pleaded by the Crown in relation to Count 1 then that count would not be established.
5. With regard to Count 2, the Crown must establish, firstly, that the accused inflicted grievous bodily harm, that is caused or imposed upon Mr Stuart serious bodily harm, and he did so with the intention to cause grievous bodily harm. That is with the intention of causing serious bodily harm to Mr Stuart. I do not dilate upon each of those elements.
6. With regard to the conduct of the trial, it was a trial by judge alone, as I have earlier pointed out. It requires the judge just not to state the bare principles of law that are applied and the relevant findings of fact that are made, but also to expose "the reasoning process" justifying the findings of fact and ultimately any particular verdict. All principles of law which are relevant and required to be applied and considered should be identified in the judgment, including any necessary warnings I am required to apply. In the assessment of the evidence in this particular matter I do not understand there are any particular warnings I am required to apply to matters relating to what is required to be proven by the Crown. In this matter it should be pointed out the submissions really approach the case on a very narrow focus. From the perspective of the Crown the Crown submits that the elements of count 1 have been clearly made out by regard to the character of the conduct of the accused in company with his contemporaneous statements and his admissions. Also, it would need to be considered in that regard the character of the injuries suffered by Mr Stuart.
7. The defence in its submissions concedes that the elements of count 1 have been made out, by reference to the matters to which I have referred. The defence, however, says that the accused should be found not guilty on the grounds of mental illness. Primarily on the basis that there is agreement between the respective forensic psychiatrists that the accused was suffering from a relevant disease of mind which caused a defect of reason and that the alternative "hypothesis" of "drug induced" psychosis, it being quite clear from the position of both parties that the accused was psychotic at the time of the attack, was the least likely of the explanations for the accused's conduct.
8. The Crown's submission in response to the defence was simply that the possibility of a drug induced psychosis was there for consideration and that in all the circumstances, having regard to all the evidence, the Court should approach the matter in the way that Johnson J approached the determination of the availability of the defence of mental illness in the decision of Fang (No 3) [2017] NSWSC28, a decision of his Honour of 3 February 2017. Particularly the Crown drew my attention to paras [110]-[111]. I will come back to that decision shortly.

MENTAL ILLNESS ISSUES AT LAW

1. As it transpires by reference to the defence raised on behalf of the accused, there is in the appeal decision in Fang by the Court of Criminal Appeal (Fang v R) [2018] NSWCCA 210, a lengthy discussion of matters very germane to the issues that were raised both by the Crown and the defence in the conduct of this trial.
2. I should point out of course in Fang it was determined on the evidence available that the psychotic condition of the accused in that matter that led him to kill another person was as a result of ingestion of drugs with an underlying disease of the mind and that in those circumstances the defence of mental illness was not available.
3. The relevant legal principles in this case are very neatly summarised and discussed in the decision of Fang from the Court of Criminal Appeal, that I have earlier cited, at [49]-[90] although there is additional discussion of those principles in relation to the facts of that case in the following paragraphs. Some of that discussion I will refer to in due course. To summarise the legal principles that apply in this particular case I cite these principles from the decision of the Court of Criminal Appeal in Fang within the paragraphs I have identified: "An accused person is presumed to be sane and possessed of a sufficient degree of reason to know the nature and quality of his or her act and that what he or she was doing was wrong until he or she proves to the contrary. The onus lies upon the accused person to establish the defence of mental illness on the balance of probabilities.….the practical foundation for the defence of mental illness is that it must be proved that at the time of committing the relevant acts giving rise to the charge the accused person was labouring under a defect of reason from disease of the mind so as not to know either the nature and quality of the act he was doing or if he did know it that he did not know that what he was doing was wrong in the sense of being morally wrong according to the ordinary standards of reasonable men. Not whether he knew it was wrong as being contrary to law."
4. In this particular matter the relevant issue is whether the accused knew that what he was doing was wrong. There is no dispute that he knew the nature and quality of his act.
5. There are a number of decisions that are particularly pertinent to an analysis of the evidence in this particular case. Amongst those decisions is firstly, the decision of Falconer [1990] 171 CLR 30 which is extensively discussed in Fang and some portions of it I will refer to. In Falconer the High Court in different judgments from particular members of the Court adopted and applied the judgment of Chief Justice King from South Australia. In Radford v R [1985] 42 SASR 266. In that decision it was held that the defence of mental illness was not available. "Where an accused person's condition is the product of self-induced intoxication by alcohol or drugs."
6. This was the correct view of Justice Johnson which was approved by the Court of Criminal Appeal in Fang number 3. Justice Johnson had specifically held in his judgment that: "A drug induced psychosis or intoxication (by alcohol or drugs) does not constitute a disease of the mind unless there is also a separate psychiatric illness which is operative at the time of the act giving rise to the charge."
7. This aspect of the matter has been discussed in other decisions of the Court of Criminal Appeal. R v Derbin [2000] NSWCCA 361 is one such example, and also in single judgments of Supreme Court judges in New South Wales such as in the decision of Ham [2009] NSWSC 296 and Doolan [2010] NSWSC 147.
8. The issue in Fang (No 3), addressed by the Court of Criminal Appeal, was whether in fact the defence of mental illness should have been left to the jury who was to determine that matter. Amongst the matters that were observed, although it is not argued that I should not consider the defence in this particular matter as the tribunal of fact as opposed to the judge, it was said "What is necessary for the defence of mental illness to be established is a question of law" citing Falconer.
9. As Justice Gaudron said in Falconer (at p 84): "It is a question of law whether the evidence raised a mental state involving a disease of the mind or natural mental infirmity."
10. The availability of the defence of mental illness in New South Wales is governed by the Mental Health (Forensic Provisions) Act 1990, particularly at s 38. I need not cite that provision which relates to the special verdict available when the defence is raised. A mentally ill person is defined in s 3 of the Mental Health Act 2007. As it was held in the Court of Criminal Appeal in Fang s 38 operates to give effect to the common law principles concerning the defence of mental illness. In essence these principles involve the application of "M'Naghten" rules as those rules have been explained and applied in this jurisdiction. In Radford Chief Justice King held that for there to be a disease of the mind there had to be an underlying pathological infirmity of the mind. However the underlying infirmity did not have to be permanent and could be of long or short duration. His Honour explained in the judgment at p 274-275: "The essential notion appears to be that in order to constitute insanity in the eyes of the law the malfunction of the mental faculties 'defect of reason' in the M'Naghten rules must result from an underlying pathological infirmity of the mind be it of long or short duration and be it permanent or temporary which can be properly termed mental illness as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of 'disease of the mind' should be explained in such terms to a jury."
11. In Falconer (at 54) three of the judges of the High Court considered this dichotomy drawn by Chief Justice King between a mental illness and a healthy mind affected by external stimulus, but added this observation: "A temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity."
12. In the decision of Falconer there were some other observations made in the context of the ruling by Chief Justice King in Radford. Justice Toohey inter alia said this: "There is no reason in principle for making a distinction between disturbance of the mental faculties by reason of stress caused by external factors and disturbance of mental faculties caused by the effects of physical trauma or somnambulism. The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli including stress producing factors on the other."
13. Justice Gaudron referred to the fact that: "….the fundamental distinction is necessarily between those mental states which although resulting in abnormal behaviour or may be experienced by normal persons, as for example in relation to the issue of involuntariness, a state of mind resulting from a blow to the head and those which are never experienced by or encountered in normal persons."
14. There are some other decisions of the Court of Criminal Appeal reflecting upon the distinction between the actions that are a result of an underlying condition as opposed to solely external stimuli. They include De Souza (1997) 41 NSWLR 656 and also the decision of Stones (1955) 56 SR(NSW) 25. That particular judgment was cited in Derbin, to which I earlier referred, by Mason P as he then was at [70]. His Honour said: "Insanity whether produced by drunkenness or otherwise, is a defence to the crime charged. The law takes no account of the cause of the insanity. If actual insanity, permanent or temporary, in fact supervenes as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause."
15. However, Mason P pointed out that there was a need for a: "underlying psychiatric condition apart from drug or alcohol use" for the mental illness defence to be available.
16. The only other matter I need refer to in this regard was in the decision of Doolan. In that judgment to which I made earlier reference, Hall J discussed the relevant principles citing Radford and Falconer and some of the passages to which I have earlier referred. In that particular case at [71]-[72], a particular focus was reliance on the evidence given by Dr Westmore in that case where he had said: "Most drug induced psychoses are transient……..The longer a patient remains mentally ill after having taken drugs, the greater the index of suspicion that they have schizophrenia or an underlying vulnerability, a genetic vulnerability to that illness".

THE EVIDENCE AT TRIAL AND ITS CONSIDERATION

1. If I can just turn now to some of the evidence in this matter. There is an Agreed Statement of Facts setting out the various injuries suffered by Mr Stuart. He had multiple facial lacerations, nasal bone fractures, a left temporal bone fracture with an underlying traumatic subarachnoid haemorrhage, two forehead lacerations down to the bone and long complex lacerations on his nose splitting full thickness into the nasal passage as well as an extradural haemorrhage on the left side of the brain. He received various surgical treatments, ultimately leading to an emergency craniotomy due to the enlarged extradural bleeding on the brain. This required the evacuation of the left temporal parietal extradural haemorrhage. Clearly that is serious bodily harm.
2. As I earlier mentioned in my summary, the accused was seen sometime around about 3 o'clock by security staff standing near the Pool of Reflection in Hyde Park south. He is described quite accurately in the statement of the security officer and was seen to be acting aggressively trying to punch a man who was lying down. The victim had complained of being "attacked for no reason" and the accused was told to drop the bottle he was holding.
3. The matter was reported to police and in this particular matter I should point out I have available to me as one of the exhibits, Exhibit F, showing footage of the accused in Hyde Park in the period of time around about 3 o'clock walking around Hyde Park and if I may say so candidly behaving rather bizarrely. For example, he removed a sign from a set of stairs leading down to the corner of Park and College Streets and apparently spat water onto the area where the sign had been placed.
4. A Sergeant of police spoke to him obviously after being contacted by the security guard and there is within Exhibit F a vision of the accused at one point sitting down speaking to the police officer. Amongst other things the accused told the police officer that he was homeless, that he had nowhere to stay. He gave his address, 37 George Street, Marrickville. Asked what he was doing with himself, he said: "Nothing, on parole". He admitted that he was on parole for "break and enter. I do break and enter in 2014" Then he said after being asked what had happened earlier: "I got angry. They say I killed my family. I didn't kill my family."
5. I should point out in the context of other statements made by the accused, there is no evidence that his family had been killed or harmed in any way by any person before this night.
6. He was asked if he had ever been treated for mental health issues. He said, "No, never". He was told unfortunately, but with no criticism of the Sergeant, to keep to himself and to go back to Marrickville and sort out his issues there. Unfortunately it was a couple of hours later that he attacked Mr Stuart.
7. There is no reason whatsoever to doubt the accuracy of the truthfulness of the evidence of Mr Stuart and the intervening witness whose intervention as I have earlier indicated should be lauded. Mr Stuart simply said that he was asleep on a bench. He was awoken by a bottle smashed in his face. He was beaten "to a pulp" with a steel pole multiple times and the man beating him said, "I'm going to kill you" at least half a dozen times. Ultimately Mr Stuart crawled from the bench to the ground. He was struck on the head, hand and arms and he said the man striking him said continually, "I'm going to kill you". Mr Stuart said nothing to the attacker, either before during or after the attack and as the photographs reveal, he was hideously injured.
8. A gentleman by the name of Mark Williams riding his bike fortunately through Hyde Park heard what he thought were sounds of fighting and ultimately he came across the accused bashing, as he described it, a man on the bench. He was hitting that man on the upper body with a shopping trolley as he described it and he saw 15 or so blows. The man on the bench ultimately ended up on the ground. He heard that man say words to the effect, "stop, leave me alone".
9. The accused was heard to say when he was told to get off the "victim", "I have to kill him, I need to kill him" or else "he tried to kill me". The video recording shows of that period of time in Exhibit F1, Mr Williams held up his bike to try and keep the accused at bay. It is an interesting matter in the context of some later observations I will make that the accused did not threaten Mr Williams. He directed no anger towards him and at various times in the video recording one can see the accused standing not too far away from Mr Williams and close to a third person who came over to the scene of the attack, if one does not count of course the unfortunate Mr Stuart.
10. Mr Williams rang the emergency number and police were shortly on the scene and he agreed that there was not any aggression shown towards him. I point out in passing by reference to the evidence of the Sergeant that spoke to the accused earlier in the evening or the morning of this day that there was no evidence of any level of intoxication on the part of the accused, there is no evidence of those in contact with the accused, putting aside Mr Stuart of course because he had no chance to make observations of the accused, that he appeared intoxicated or affected by drugs in any way.
11. Ultimately the accused wandered away from the scene while Mr Williams remained, providing assistance to the injured man as did other people including police who were on the scene very shortly thereafter. Of the police that arrived on the scene, I have two statements. I have one from a Senior Constable Rutter and also statement from Constable Tucker. Also in Exhibit F1 there is film of the accused having moved from the scene of the attack on the western side of the Hyde Park area across Elizabeth Street to the vicinity of the Telstra building which stands on the corner of Bathurst and Elizabeth Street.
12. One can see the police cars pull up near that building. In fact one can see the accused putting his hand out as if hailing the police car to stop. Senior Constable Rutter said he noticed a male holding a white sheet/signboard (the one the accused had removed a couple of hours earlier), glasses, a metal ring and small white crystals in his hands. I point out the accused was observed by Mr Williams, and it can be seen in the CCTV footage in Exhibit F1, to be wearing sunglasses after the attack upon Mr Stuart. It was dark at the time.
13. When the accused was spoken to and asked to "have a chat" the Senior Constable said the male "started saying something I didn't quite catch, I could hear him saying something about evil spirits and stopping them". He was subject to a search. He was given a caution. He was asked his name and apparently provided his name. Even when handcuffed, the Senior Constable could hear the accused continuing to speak about stopping demons and evil spirits and something about how they needed to be killed.
14. Another officer to whom I earlier referred Constable Tucker made somewhat similar observations of the accused. She said that the accused said in her presence, as he approached herself and Senior Constable Rutter, "I had to get rid of the monsters. The moon and Buddha told me to destroy the bad monster". She said the accused continued to repeat saying that he had to "destroy the monster".
15. The accused was arrested and taken to presumably a nearby police station and was ultimately interviewed by an electronic interview in the presence of a Vietnamese interpreter from about 11.35am on Sunday 3 September 2017. As I understand it from having viewed the video the accused is responsive to the questions asked of him by Detective Senior Constable Hammerton, he gives particular detail which is confirmed by other evidence in the case. Some details he gives are not exactly correct but there is no attempt by the accused to deny his involvement in the assault upon Mr Stuart.
16. He largely speaks in English, occasionally he resorts to the Vietnamese language. But as was acknowledged by one of the police officers the interpreter doing her best to help the situation was largely sidelined as an independent witness in effect to preserve the integrity of the interview. There is no suggestion that the interview lacks any integrity. It is worth just citing some of the representations made by the accused without necessarily, although on occasions I might need to cite the particular questions that elicit those representations.
17. As I said earlier the accused made clear admissions of what he did and what he intended to do. He said that "I hit him yeah I smashed the cunt". He was asked at question 21 why he did that and he said "Because he is evil". When asked "He's evil?" at question 22, parts of the answer are not transcribed and are unintelligible but to quote the answer typed: "Yeah. Just like ah um...you know like a master to...like insect in human body and sucking and...here and fucking eye and nose everything...and become anything and like stole evil human soul you know."
18. This was interpreted by the detective very well, as in this question: "Q. So an insect flown into his body and soul made him evil? A. Yeah."
19. He went on to say: "But human can see you know very quick. See go like in your jacket or your hair take one, very tiny, anywhere and you fall out they control the whole thing him...yeah that's why I have to drop the cunt you know yeah I have to kill...but lucky a man come to stop me or I have to kill so I wait now."
20. At question 28 he was asked: "Q. You wanted to kill him? A. Yeah because he a monster you know."
21. When asked at question 30: "Q. You tried to kill him? A. Yeah I try to kill but after bicycle come and say I say what, what you doing and lucky you're lucky I say yeah let them you know let them for a government to chuck, chuck I want to kill this fucking monster you know."
22. He was asked later on at question 37: "Q. So you're saying that you wanted to kill this man this morning? A. Yeah oh he fucking man and a woman become everything. Q. He's a man and a woman? A. Yeah oh he man woman they got power power inside."
23. He was asked then at question 39: "Q. He's got power inside him? A. Yeah creates something...a power like in I...my country or in Thailand or in fucking India so they like a magic you know but like a mummy you know just fucking. Q. Like a mummy? A. Yeah like a clone you know and you can do something for me you know. Q. Are you saying that he can turn into anything he wants? A. Anything, anything. Q. So he's turned into this person and you wanted to kill him you're saying? A. Yeah to rid the...you know."
24. He was asked at question 46: "Q. How are you going to kill him? A. Because he the one who kill...try to...make my mind to kill my family. Q. All right? A. Kill my wife, kill all my daughter."
25. He went on to give similar answers throughout the interview. He referred to "magic" things occurring. He gave details of his movements earlier in the day. He denied that he had ingested any alcohol or had taken any medication.
26. I just pause for a moment, there was no evidence from the detective, both within the questioning asked of the accused or in the evidence he gave in the trial, of any observation on his part that is suggested in the time that he was in contact with the accused the accused appeared intoxicated or drug affected.
27. Amongst other things the accused later said in answer to question 94: "Because at that time uh - they - they - they - they make me crazy you know, like make me like - like - uh somebody killed my wife, my - my children you know so I go to find the owner to kill you know so I go to train and I go to Bondi Junction and then I see the one before I tell you the picture on the wall, yeah with the monster inside a red balloon you know, like a face inside and a children there like and brown and red coat and woman tear and woman in the park, just like a beautiful sunshine you know and come in tell help me I otherwise monster coming to earth to cover everything."
28. He later said in answer to question 98: "No, they say - I say somebody kill my family and they put the magic in the rocks what have to clean you know and I don't know where to go so I said clean them and he said clean, but just settle down...you know."
29. When asked about when the attack occurred and what he did, the accused gave answers that quite clearly coincide with the objective evidence. The timing of the attack with the bottle is volunteered by the accused as about 5 o'clock which is entirely accurate. He said in relation to the bottle in answer to question 106: "A. No, before, before I clean okay I looking for a monster so I don't know where you know so I do I tear and I just sad I think someone come to see me but no and after I see I go to find a monster as is a hundred per cent in the park you know but I don't know where and the hiding you know."
30. He went on to say: "So I go there I see on the tree you know under a tree a cover like a covered...you know but inside they got maybe four, five suitcases you know but inside suitcase all brand new clothes, ladies clothes, cooking, everything you know, like you go for holiday for long you know, too many, so I packed all and I chucked everything out you know."
31. He went on to refer to the person he hit as a woman and a number of occasions referred to the person as "she". When asked how the person was when he first saw that person, was that person asleep, standing up or walking, he said, "I can smell. She lie down I smell I smell I can see." He later referred to the person in these terms, "because he lie down there opposite so I say this can't hundred per cent you know mummy you know monster you know."
32. He referred to "her" again as a monster and that he could "smell" her as a woman. He gave a correct account that before he hit the person with the bottle the person was asleep. In fact he said, "She sleep. Scared." He referred to the person being covered by a blanket. He referred to getting another bottle, a Corona beer bottle, an empty one, and saying: "I smash her in the face, I had to otherwise she don't die you know, I smashed her this one on her face but I hold onto, I have, but before I know she's going nowhere so I have to clean, take all the clothes off you know so she can't go to chair near me so sit down there you know waiting but she change man woman easy you know, I know before that's why but before I smash the woman not a man you know. Q. So you think when you smashed her it was a woman? A. Yeah. Q. Then into a man? A. Yeah, but the same girl you know, same man you know."
33. He then referred to using a trolley on the victim. He said, "I have to chop her nearly die I like see her...again you know and very serious you know, trolley I smashed in the face again."
34. Asked why he did that, he said, "Because I want to kill her because she alive and make her suffer for human." And then he admitted to striking her, as he described the victim, "maybe 20 or 30 (times) I can't remember (question 185)."
35. During the interview he referred to the person on a bicycle coming, which is correct, and the person with the bicycle intervening in the assault. He was asked what he did once the person with the bike stopped him. He said, answer to question 193: "I try to smash again but he went made me concentrate and she stolen like a like glasses you know, glass it come to the monster and the ring you know, the ring not very small, but the ring round here and the pearl you know, the pearl like."
36. He later said in answer to question 197, which reads: "Q. You took them from her? A. Yeah, because he tried to make big thing because glass or pearl very important, they can become monster again and then if I can't she alive again even you know stop and die so I have to do that otherwise alive again, even they die but they reborn."
37. And so it went on. It is interesting that he repeats the reference to glass and pearl that he had raised with police six and a half hours earlier. And in later admissions he referred to the fact that he had to kill. He correctly said in answer to question 243 that the person said nothing to him and did not hit him, nor did that person hurt him in any way. He repeated again his statement that he tried to "kill her".
38. At questions 275 and following he was asked had he killed before, he said: "A. Never ever. Q. Have you been drinking tonight, were you drinking something? A. Nothing at all." Q. "Nothing, and what about medication, do you have any medication? A. No, nothing at all. Q. You don't see a doctor? A. No never see a doctor."
39. He was a bit disturbed when he was shown photographs of the scene because he could not see a body and repeated again his wish to "kill the monster". He was at one point somewhat confused as to why the body cannot be seen in the photograph because Mr Stuart had been removed for medical treatment. He said other bizarre things whilst the interviewing officer was out of the room and when he was spoken to by the independent officer he gave a coherent response, he did in answer to the question, "Have you taken part in the record of interview of your own free will?" Answer, "No." But then when he was asked the question again in these terms, "You didn't want to do the interview?" He answered, "Oh yeah." Reflecting as I understood it that he was willing to do the interview. He showed no other lack of understanding of the questions being asked of him at any time by any particular police officer.
40. I should point out in the context of noting some of the answers that he gave that English is very much his second language and part of his expression, I appreciate, would more a reflection of his manner of speaking than his psychosis.
41. There are a number of photographs admitted that I have earlier referred to including the clothing worn by the accused, the trolley that was used to strike Mr Stuart, the blood stained scene where Mr Stuart was lying on the bench. Exhibit E was also produced. It was a document showing police body camera footage about three or four days before the events of the early hours of 3 September. The accused was intercepted at a city railway station, is questioned about his failure to have an Opal card and is arrested, amongst other reasons, in relation to that matter and for "resisting arrest".
42. That film showed the condition of the accused three or four days before. The Crown, as I understood it, relied upon it as showing no evidence of "psychosis" in the answers given by the accused. But it also showed no evidence of the accused being what could be called affected by any substance. He certainly does not appear to be drug affected.
43. He is able to answer questions although he resisted the police in their endeavour to speak to him about the matter relating to his Opal card. Ultimately Dr Furst thought it was a matter of no moment in terms I will come to later.
44. Dr Furst prepared a report on 25 November 2018. I need to cite particular passages of his report, although I do not propose to cite the references he has made to Justice Health notes and other records that he quotes extensively. His citations are relied upon by Dr Nielssen in his report.
45. He expressed the opinion that the accused met the criteria for the diagnosis of "schizophrenia" and "substance use disorder (methylamphetamine, opiate dependence)" and a differential diagnosis of "substance induced mental disorder". His report notes that the accused presents with a lengthy history of addiction issues. His substance use disorder involving addiction to heroin from the late 90s and over the following 15 years or so.
46. His addiction to heroin and problems relating to his substance use disorder likely resulted in the breakdown of his first marriage and subsequent psychosocial decline to the point where he ended up being homeless over a number of years whilst living in Melbourne.
47. His primary addiction over recent years was noted to be methylamphetamine ("ice") using the drug on a regular basis from 2013 onwards. It helped him (block out) negative feelings and disappointments in relation to his family situation. He had remained homeless until he was arrested in July 2016 on unrelated matters.
48. He said there was no evidence of major mental illness such as schizophrenia or bipolar disorder in his early adult life. However, he appears to have experienced various psychotic symptoms in the year period preceding his arrest in September 2017, that is, in relation to the current matters, including beliefs in spirits and ghosts, apparent delusional thinking and ultimately hallucinations. More florid psychotic symptoms developed around August 2017 being present at the time of alleged offences and continuing for approximately two months after he was arrested.
49. The doctor said, the main diagnostic possibilities are of a substance induced mental disorder, commonly referred to as a drug induced psychosis, schizophrenia or some other type of psychotic illness. The differentiation between a substance induced mental disorder and schizophrenia largely depends on the apparent trigger for the psychosis, if any, the nature of the psychotic symptoms and the duration of the psychotic symptoms experienced, especially after discontinuing drugs of abuse and any associated functional impairment, including prodromal symptoms, negative symptoms and residual symptoms.
50. If I may quote from his report: "In my opinion the diagnosis of schizophrenia is preferred on the basis of the duration of the active phase (acute symptoms) of psychosis, including delusional beliefs of a religious nature about spirits, demons, monsters, ghosts, God and Buddha, beliefs that himself, his family and the world are in danger and an apparent auditory hallucinations that reinforce those beliefs. A diagnosis of schizophrenia generally requires at least four weeks of acute phase symptoms and a total of at least six months of active or residual psychotic symptoms." He noted the diagnostic criteria for schizophrenia in his report. He went on to say: "For a significant portion of the time since the onset of the illness the accused's level of function in one or more of the major areas such as work, interpersonal relations or self-care is markedly below the level achieved prior to the onset of the illness." He says that in relation to the characteristics of schizophrenia, not of this particular accused, particularly; "Continuous signs of the disturbance persist for at least six months. This six month period must include at least one month of symptoms or less if successfully treated that are active phase symptoms and may include periods of prodromal and residual symptoms." He went on to say that that: "The accused had evidence of functional impairment in the years prior to his arrest in September, low mood and poor sleep which may well represent the prodromal phase of schizophrenia.
51. He also reported prior delusional beliefs about spirits and a monster affecting both himself and his family and casting some type of spell on him whilst he was living in Melbourne between 2013 and 2016.
52. He reported ongoing beliefs and hallucinations of a familiar nature for about two months after he was arrested on 3 September 2017.
53. These features and the complex nature of his delusional beliefs in general make a diagnosis of schizophrenia more likely than the diagnosis of drug induced psychosis alone."
54. He went on to say that schizophrenia is a disease of the mind in "the M'Naghten sense" as it is a serious and severe mental illness. The available history indicates Mr Tran has never been diagnosed for schizophrenia prior to his arrest, had few community supports and was homeless. He developed severe and overwhelming delusional beliefs and had associated hallucinations reinforcing those beliefs in September 2017, including beliefs that his family and the world as a whole is at risk from the homeless male victim who he thought was going to kill people believed would harm the world as a whole.
55. There was evidence of related delusional beliefs about monsters, spells and religious themes since around 2013.
56. Mr Tran also described believing or feeling as though a ghost had entered him and taken over his body believing the victim was the master of the team that planned to destroy him. He made the bizarre comment that the victim was not a man but was a woman. He described the need to "stop the demon and the evil spirits" and was convinced that a demon/monster had taken over the victim's body. He also believed a demon had taken over his own body and that he was battling the victim. He also described a voice asking him to do it, that is, attack the victim consistent with auditory hallucinations of a command nature. He said: "At that time before I attack him I thought he had already killed my wife and daughters. The voice, the ghost inside me, control me, that's why I had to attack him to get rid of him."
57. He did not believe that he could control his actions or his mind at the time.
58. The doctor said those reported beliefs in the form of complex and religious illusions, beliefs that the victim was a monster/demon, and command hallucinations tell him to harm or kill the monster/demon constituted defect of reason. Meaning he was unable to reason about the wrongfulness of his actions according to the ordinary standards of reasonable people in our community. Thus, in the doctor's opinion, Mr Tran has the mental illness defence available to him with recommendations as to his treatment.
59. I just pause for a moment, those various quotations of the accused's history provide detail of history provided by the accused in the context of the course of the statements made of a very similar nature in the course of the interview to police that I have earlier quoted from.
60. There is one other feature of the matter that is to my mind common to both the report of Dr Furst and the report of Dr Nielssen. That is notwithstanding what I understand to be the prisoner's long history of antisocial conduct and his self-admission to the Sergeant at 3am in the morning that he was on parole for "break, enter and steal", the accused was clearly on this particular day, and I accept by reference to the detail contained and the histories obtained by Dr Furst, a reliable historian. In the sense that he was able to recount things frankly, and in detail, in circumstances which reflect upon, if I could use the word in a very loose sense, his "credibility" as an historian.
61. So far as Dr Furst's evidence before the Court much of the evidence he gave in answer to questions asked of him by the learned Crown Prosecutor reiterated what is contained in his report. He made the observation that the differential diagnosis was "a possibility" but he went on to say in relation to that matter when pressed in respect of it that the possibility was "less than 5% likely" (p 37).
62. He acknowledged the history of drug ingestion over an extended period of time. He acknowledged in the context of the questions asked of him by the learned Crown Prosecutor, no previous recorded history of mental health "issues" at least that were diagnosed. He said of exhibit E that it did not disprove the existence of underlying "mental illness" or "disease of the mind". He reflected upon some odd behaviour in his interaction with the police on 31 August, but in his view it was not evidence of any positive or negative value.
63. Reference was made in cross-examination of the accused to some assessments that were made by a Dr Malik in his interaction with the accused, particularly in 2018, and details taken by Dr Malik of matters raised with him by the accused.
64. There are a couple of points to make about Dr Malik's "assessment". Whilst I note it is recorded and I would expect it serves something of a hearsay purpose, no attempt has been made to produce Dr Malik to qualify him as a person relevantly qualified to express opinions about the matters recorded in the notes.
65. Whilst Dr Furst acknowledged him to be an accurate history taker, Dr Furst said in the context of having read many of Dr Malik's notes from Justice Health records that whilst the detail was considerable in the Justice Health records of the contact of Dr Malik with the accused, the diagnosis that Dr Malik had of a "drug in ice induced psychosis" being responsible for the accused's actions in early September 2017 was a "diagnosis" that he disagreed with.
66. Whilst I note the assessment of the matter by Dr Malik, in the context of no evidence from him and no testing of the evidence or the basis upon which that opinion has been expressed and bearing in mind of course Dr Furst and Dr Nielssen have had an opportunity to reflect upon the clinical observations of Dr Malik, ultimately the assessment of Dr Malik is not a critical matter in this case.
67. Dr Furst made the point in the course of cross-examination that the distinction to be drawn between the schizophrenic illness that he diagnosed and a drug induced psychosis is that a drug induced psychosis, or symptoms of psychosis, would last no more than 28 days.
68. In this particular matter there was there was evidence of symptoms of psychosis, auditory hallucinations, delusions and the like extending period for some period of time in fact before the events of early September leading to the assault upon Mr Stuart and for approximately two months afterwards arising from the medical histories obtained by nursing staff and the like.
69. He also thought, significant in terms of his preferred assessment of the matter, that the various delusions that were stated by the accused both in histories given and contemporaneous to relevant events, including during the electronic interview, were very bizarre. The reference to the victim changing from a man to a woman, the references to the killing of his family which was clearly untrue, his obsession with a pearl and glass, those express delusions were very similar to delusions consistent with schizophrenia.
70. He was provided with some clinical notes, Exhibit 1A, but did not feel that they, being a record of conversations with the accused on 4 May 2018, detracted from the diagnosis that he had made.
71. He was challenged as to whether the diagnosis of schizophrenia stood up in the context of the history available, that is, of various symptoms extending over a period of six months.
72. He was asked this question by the learned Crown: "Q. In regard to the diagnosis of schizophrenia it is normally the case that it normally manifests for a period of six months or longer, isn't it? A. Well you need to be careful when saying that because it's not quite the diagnostic criteria." "I have actually included them at p 9 of my report". "...so it breaks down as two or more of the following acute symptoms, each one being present for at least one month or less if successfully treated and at least one of the residual symptoms over a period of six months". "So, the trick is that if you have, or the catch I guess, the complication is that you can have one week of acute symptoms but if they're sufficiently bizarre and you've had medication that's treated those symptoms but there is also evidence of some functional impairment or lack of motivation or lack of volition or some kind of negative symptoms, even emotional, affecting, odd, that can be enough for schizophrenia. Schizophrenia is very heterogeneous condition. There can be many types, many different types of schizophrenia, presenting and therefore the criteria a quite broad in that sense".
73. He went on to say, in answer to questions asked by the learned Crown: "Well you need six months of total symptoms. I'm just trying to say there's one month of acute symptoms and six months of total symptoms, including this broad criteria to have schizophrenia. Anything less than six months is classified as a schizophreniform disorder, or first episode psychosis, and other terms, which often ends up meaning the same thing given long enough."
74. With regard to the issue of the drug induced psychosis he made the point that his understanding was that the accused's ingestion of methylamphetamine, or ice, was generally quite low, actually ".2 grams per day of ice", like "two points".
75. He said also that one of the matters that Dr Malik had taken from the history in May 2018 was that: "Mr Tran (told him) for the first few months after his arrest he was receiving messages from the television telling him he did the right thing, he believes he killed the Satan who was going to kill God and Buddha".
76. He was of the view that these delusional symptoms did not necessarily resolve within 12 months completely even though there was no active treatment by anti-psychotic medication of the accused.
77. He also noted that in the history that he took from the accused the accused had taken "no ice on the day of the offence". He noted there were no signs of "acute intoxication", and he would have thought that the drug use in the weeks before probably exacerbated these schizophrenic symptoms and delusions but this was not intoxication at the time of the assault.
78. He ultimately concluded, as I said, that the more probable diagnosis was that of delusions from the underlying schizophrenia, and that psychosis from acute drug ingestion was a remote possibility.
79. Dr Nielssen, putting aside the history that he obtained, some gleaned from Dr Furst's report, some from his own examination, concluded that the accused had two diagnoses, "chronic psychotic illness" and "substance use disorder". He thought the diagnosis of chronic psychotic illness was probably a form of later onset schizophrenia, based on the symptoms reported by Mr Tran, the beliefs expressed in the ERISP, the information in the medical records, the information in Dr Furst's report, and aspects of Mr Tran's presentation during the interview.
80. He went on to outline the various hallucinations and delusions that have been recorded. He noted the various matters reported to him by Mr Tran and similarly been reported to Dr Furst, and he said that whilst Dr Furst had made a diagnosis of schizophrenia, he was not able to conclude that it was necessarily schizophrenia, although more probably that was so.
81. He also said a further diagnosis of "substance use disorder" was made on the basis of a history of a long term opioid dependence and a more recent abuse of methylamphetamine. Complications of substance use include the role of drug use in his loss of contact with his family, his inability to hold down employment, and repeated terms of imprisonment for substance related offences.
82. He said an alternative diagnosis would be some form of substance related psychotic illness, particularly given the history of daily use of methamphetamine in the week before the illness. However it seems that Mr Tran has developed a chronic form of psychotic illness in which symptoms have persisted long after he last had any kind of illegal drug.
83. The interaction between emotional trauma, substance use, and psychosis is complex. Psychosis is more common in people who have migrated as refugees. People who have experienced trauma are more prone to substance use. People who have the neurological substrate to manifest this psychosis are far more prone to substance use, usually use of tobacco and cannabis, and people with established psychotic illness use substances for a range of reasons including to alleviate distressing mood states and, because of impaired decision making, the impulse control.
84. Mr Tran's psychotic illness is described as being in partial remission as he reported that he no longer held the delusional beliefs that caused him to attack Mr Stuart, although he continued to experience symptoms that previously led to him holding delusional beliefs.
85. I point out in relation to Dr Nielssen that he saw the accused in an interview that was conducted, as I understand it, in late January 2019. He concluded: "At the time of the offences it is clear that Mr Tran was affected by an acute episode of mental illness, but his motivation for committing repeated serious assaults on a complete stranger was the persisting delusional beliefs that he held at that time about the victim of the assaults. The illness was made more acute by the effect of taking methamphetamine every day for a week before the offence, however his beliefs were bizarre and took some time to resolve, and his condition was an exacerbation of an underlying mental illness rather than a state of intoxication, or a transient drug- related delirium,…..since his underlying condition is a disease of the mind and gave rise to the defect of reason in the form of delusional beliefs regarding Mr Stuart,……….arising during the acute episode of illness deprived him of the ability to appreciate the moral wrongfulness of his actions in repeatedly attacking Mr Stuart. Hence I believe he has the defence of mental illness open to him."
86. His evidence before me was short. He was only asked questions by the Crown Prosecutor in-chief. He understood that the accused was suffering a defect of reason in the form of a bizarre delusional belief regarding the victim of the offence who he did not know, was a complete stranger to him, and against whom he had no rational grievance (p 68).
87. He was asked this question: "Q. Was it also because although he may have known the quality of the act he didn't appreciate the moral wrongfulness of his actions? A. Again that's correct." "Because he was affected by bizarre delusional beliefs arising from symptoms of psychotic illness".
88. He said in relation to psychotic illness that it was not a transient illness, or a substance induced delirium or intoxication: "It is an illness which I believe has contributed to a decline of his social function which persisted after the drugs wore off and whilst he was in custody".
89. He was asked this question by the Crown: "Q. To be clear is your position that notwithstanding the use of drugs subsisted but that there was already an existing chronic psychotic illness separate from the drugs? A. Look I believe that to be the case based on his previous performance. What I imagine is his pre-morbid mental function and what seems to be a decline in function. He's also reported to me that he was experiencing symptoms on and off before this, but obviously switching from opioids to methamphetamine has triggered a sort of marked or more dramatic decline in mental function. It's a trigger with an underlying vulnerability." "A lot of people use ice. Not that many get psychotic, and not many people get this kind of bizarre florid schizophrenia like psychosis. So the very acute psychosis may have been triggered by his use of methamphetamine but it's because he had an underlying condition that took the form it did."

CONCLUSION

1. Turning to an analysis of that evidence accepting as I said earlier that the Crown has proven beyond reasonable doubt the elements of the offence, I am satisfied that in fact the defence of mental illness has been made out. The reasons for this are self-evident from the way in which the respective psychiatrists dealt with the particular questions asked by the Crown in endeavouring to identify the effect that any ingestion of drugs may have had upon the accused.
2. A point to be made about that aspect of the matter is that there is no particular reliable history of recent ingestion of drugs to the time of the commission of the offence. Although I accept there is a history given by the accused to the respective doctors of the use of methylamphetamines in the period of time leading up to the time that the offence was committed.
3. It is clear, as I have said earlier, from the observations of the accused at the time, the manner in which he presented himself, that the accused was not intoxicated nor "drug affected" at the time that the accused was spoken to by police, or for that matter Mr Williams.
4. I have noted the accused's recollection in detail of the events of the night in the electronic interview, consistent with in the context of the accused having a psychotic episode, a clear recollection of events untrammelled by the influence of methylamphetamine at the time. His contemporaneous statements to the police and other people at the scene of the arrest and his comments made during the interview reflect extremely bizarre delusions and beliefs which have been the subject of comment by Doctors Furst and Nielssen.
5. Both doctors have referred to the histories they obtained and from the examination, particularly of Dr Furst, of the Justice Health records. The persistence of bizarre delusions continued for an extended period of time far beyond the limit that Dr Furst, for example, identified for a diagnosis of a drug induced psychosis. The preponderance of opinion of the forensic psychiatrists is that the accused acted as a result of a defect of reason of his mind caused by a disease of the mind in circumstances where, in the opinion of Dr Furst, it was more probably a more schizophrenic illness, in the opinion of Dr Nielssen it was a chronic psychotic illness, albeit more likely to be related to schizophrenia.
6. With regard to the aspect of the matter that was raised by the Crown in terms of other possibilities or other probabilities, for that matter, ultimately the way in which the matter resolved itself in the opinions expressed both by Dr Furst and Dr Nielssen, by reference to the influence of drugs or the relevance of ingestion of drugs to the onset of a psychotic illness, that it came with an underlying condition
7. The possibility was raised in the evidence of both the doctors of the very matter that was the subject of particular discussion in the quotes that I have taken from the decision of Fang in the Court of Criminal Appeal. There the Court of Criminal Appeal, by reference to the High Court authority that I have cited and other decisions of the Court of Criminal Appeal, particularly identified the fact that where a psychosis is caused by the ingestion of drugs in the absence of an underlying psychiatric illness such as to constitute a disease of the mind, then the defence of mental illness will not be available. That is not the situation here (cf Fang [No 3] at [110]-[111]). The facts here are very different from those found in that case
8. In circumstances as discussed in Durban, in Falconer and the other authorities that I cited where there was an underlying disease of the mind, the exacerbation of that disease of the mind by ingestion of drugs, for example, does not deny the accused the entitlement, if that is the correct expression, to the defence of mental illness.
9. However, as I said, the preponderance of opinion ultimately does not necessarily accept that the psychosis which was self-evident in the conduct of the accused and in the statements made contemporaneous to relevant events was itself created by the ingestion of any particular drugs, such as methylamphetamine.
10. One last matter in the context of the issues that were briefly raised in the addresses. I accept, as the Crown pointed out, that this is not a matter necessarily to be decided by experts. That is to be fairly said. But in my view, in the context of my understanding of the medical evidence available and the assessment of the psychiatrists, and I accept wholeheartedly that they had ample opportunity to relevantly make their diagnosis, it is clear from the evidence of the accused's behaviour and statements at the time of the attack upon poor Mr Stuart, that the accused was clearly psychotic in a context that had reflected, particularly in regard to the bizarre delusions that the accused was suffering in circumstances where the accused had otherwise clearly reasoning, a manifestation of an underlying illness rather than solely the reaction to the ingestion of a particular drug that might be capable of causing a psychotic reaction.
11. It is in those circumstances, in conjunction with the other points I have made, I have concluded that in respect of each of the counts in the indictment I should acquit the accused on the basis of the defence of mental illness and that I should make the relevant direction under s 39 of the Mental Health (Forensic Provisions) Act 1990.
12. Mr Crown, Mr Roff, what it calls for me to do is to announce the verdicts and make an order pursuant to s 39, is that correct?
13. CROWN PROSECUTOR: Yes, your Honour, I assume that there's - obviously a s 39, as your Honour would be aware has changed after the last decade as to the orders the Court can make. The Crown's submission is, and I don't think there is any demurer on this, is that he should be referred in the context of subs (1) rather than a release.
14. HIS HONOUR: No, I understand that. This is the order I was preparing to make, Mr Crown, Mr Roff, apart from the verdict, pursuant to s 39 Mental Health (Forensic Provisions) Act 1990 the accused is detained in his current correctional facility or at such facility as the Mental Health Review Tribunal may determine is appropriate until release by a due process of law.
15. CROWN PROSECUTOR: That's right. And that, of course, as your Honour will be aware, is supported not only the Law Reform Commission's view on the matter, but in the more recent decisions such as R v Lyon (2004), where these matters are dealt with.
16. HIS HONOUR: Yes, sure.
17. ROFF: Nothing from me, your Honour.
18. HIS HONOUR: Nothing from you Mr Roff.
19. Mr Tran, I propose to enter verdicts of "not guilty on the grounds of mental illness" to both counts. You will be held in custody, probably in a gaol, for such time as the Mental Health Review Tribunal believes that you may be held there until it determines, if it determines at all, that you should be released from custody.
20. In respect of each count I return a verdict of "not guilty" counts 1 and 2 on the grounds of mental illness. Pursuant to s 39 Mental Health (Forensic Provisions) Act 1990 the accused is detained in his current correctional facility or such other facility as the Mental Health Review Tribunal may determine is appropriate until released by due process of law.
21. I direct or request that my judgment be produced by the Reporting Service and when it is revised a copy of that will be forwarded to the Mental Health Review Tribunal.
22. Do you need the interpreter to go and speak to your client?
23. ROFF: No, your Honour. The interpreter can be excused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2019