R v Trinne

Supreme Court of NSW|2024-11-12|Before: Weinstein J, Dhanji J

Background

Mr Trinne is now 58 years old. He was 55 years old at the time of the offending. He has been diagnosed with epilepsy and treatment resistant schizophrenia. He was subject to a Guardianship Order for 12 months from 24 November 2021 which was in effect at the time of the offending. The order was for continuing guardianship with respect to healthcare and other services. There were previous orders dating back to 7 November 2017.
The deceased is Mr Graham Priestly who was 75 years of age when he died. He had epilepsy and features of autism, and was receiving dialysis for kidney disease at the renal unit at Lismore Base Hospital three times per week.
Mr Trinne and the deceased lived in adjacent bed sit units, unit 4 and 3 respectively, in Kyogle. The units shared a plaster party wall and the deceased's television was placed in front of the party wall in his unit. Mr Trinne was unhappy living there and often slept outside or in the laundry. He had asked two neighbours if he could stay under their houses, but they declined. He complained about the noise made by the deceased in the adjoining unit, including telling a neighbour that the noise was keeping him awake at night.

Observations of the deceased on 25 April 2022

At 6.00am a neighbour saw the deceased sitting on the air conditioning unit on his front balcony. The deceased was wearing a cowboy hat. The neighbour waved to him, and the deceased waved back.

Observations of Mr Trinne on 25 April 2022

At 9.30am another neighbour saw Mr Trinne walk toward the IGA in Kyogle which was closed for Anzac Day. Mr Trinne stood in front of the IGA, and then walked toward a laneway.
Between 10.00-10.30am, Mr Trinne went to a neighbour's house and said to him:- "I don't want to live there anymore. I just don't want to stay inside anymore. I've been sleeping in my laundry."
Mr Trinne asked if he could sleep under the neighbour's house. He was told that he could not.
Between 5.00-6.00pm, Mr Trinne was observed standing on Anderson Street, Kyogle. Mr Trinne then walked up the street.

The events of 26 and 27 April 2022

At 9.30am on 26 April 2022, the deceased's home care worker, Ms Ruth Tsitimbinis, attended the deceased's unit for a home visit scheduled at 9.45am.
Ms Tsitimbinis noticed that the screen door was open. She had an exchange with someone to the following effect:- "MS TSITIMBINIS: Graham it's Ruth. UNKNOWN PERSON: Go away I don't need you. MS TSITIMBINIS: Do you want me to come back? UNKNOWN PERSON: Yeah in half an hour."
Ms Tsitimbinis returned to her vehicle and at 9.35am she made a note in the work application on her mobile phone. She drove away from the deceased's unit and returned at 9.52am.
As she was driving back toward the deceased's unit, Ms Tsitimbinis saw Mr Trinne standing on the footpath wearing a blue flannelette shirt.
When Ms Tsitimbinis arrived at the deceased's unit, she saw a towel hanging over Mr Trinne's door and a blue flannelette shirt drying on a hanger on his screen door. The door was open with a gap of approximately a centimetre. She knocked again and called out to Mr Priestly, and then used the back of her hand to push open the door. She saw the deceased lying on the floor with blood on him. His left eye looked swollen and closed. He was wearing "stubby" type shorts and he was not wearing a shirt, shoes or socks.
Ms Tsitimbinis walked toward the deceased and said, "Graham this is Ruth", but she did not receive a response. She picked up the deceased's left arm to check for a pulse but he was stiff to touch. She then walked outside and called triple zero at 10.05am. An ambulance arrived shortly thereafter, and paramedics declared the deceased life extinct.
At 12.35pm, police made the following observations:- "i. Bloodied footprints on the top landing leading from the doorway of unit 4. ii. The deceased lying face down on the floor directly beside the bed. Blood pooling under the deceased's head. iii. Significant injuries including swelling and discoloration to the deceased's head, two large cuts and bruising on the top left side of the deceased's head. Significant injury on the right side of the deceased's forehead. iv. Blood wipe marks consistent with blood being wiped by cloth material. v. A blue chequered jacket hanging off the bed post, blood on the jacket (later analysed and found to have brick fragments and a mixed DNA profile consistent with the accused). vi. Blood droplets on the floor between the deceased and the sink, congealed blood inside the sink and watered-down blood (later analysed and found to be that of the deceased). vii. One single blood droplet on the exterior of the front door handle (later analysed and found to be that of the deceased). viii. Light blood footprint and blood marks leading directly to the door of unit 3 (later analysed and found to be that of the deceased). ix. On the western wall of unit 4 a pile of bricks on the ground with a darker / wet brick placed away from the main pile, the wet brick had a red tinge and a small chip. An indentation in the ground near the bricks. The deceased's DNA was located on this brick. x. A damaged portion of fibro sheeting on the exterior wall of unit 4."
Police searched Mr Trinne's and the deceased's units after obtaining a search warrant. The deceased's wallet containing $615 was located in his top drawer. The deceased's DNA was present on a tap in Mr Trinne's kitchen sink and on a towel hanging on the balcony of Mr Trinne's unit. Cannabis and four cannabis plants were also located in Mr Trinne's unit.
At 5.40pm, police saw Mr Trinne standing inside the shared laundry and asked him to wait for detectives to attend the premises.
At 6.10pm, Detective Senior Constable Aslin spoke to Mr Trinne who was cautioned and warned that the conversation was being recorded by a body worn camera. No support person was present. Mr Trinne was asked if he knew the deceased and when was the last time that he saw him. He replied, "I wouldn't have a clue. I normally don't see him." Mr Trinne stated that he had stayed at his own unit the previous night and spent most of the day walking around town. He said that he was wearing a different pair of tracksuit pants when he left his unit in the morning, but the same jumper and top that he was wearing when speaking to police. He denied seeing the deceased that morning, any previous conflict with the deceased and ever being in the deceased's unit.
DSC Aslin noticed that Mr Trinne had some small wounds between his thumb and forefinger and scratches on the inside of his palm, which Mr Trinne stated occurred when "cutting up veggies". A wet, blue windcheater with dark staining in a plastic bag and a towel with a red mark were located inside Mr Trinne's backpack. He told police that he had spilled something on the windcheater which was why he had to wash it.
Mr Trinne's items of clothing were seized and swatches of stains on his pants were later analysed and found to be blood consistent with the DNA profile of the deceased. The soles of his sandals were later examined and found to be consistent with bloody footprints located at the scene.
Mr Trinne denied any involvement in the death of the deceased and he was permitted to leave the location.
Between 7.30-8.00pm, Mr Trinne went to a restaurant in Kyogle, where the former partner of Mr Trinne's former support worker, Ms Annie Brosnan, was working. Mr Trinne asked Ms Brosnan if she could help him find a telephone number in a book, and then indicated that he did not have anywhere to stay as the police were at his unit. Ms Brosnan attempted to help Mr Trinne find accommodation but was unable to do so. She offered him a yoga mat and a jumper, but he declined and she went home.
At 6.00pm on 27 April 2022, Mr Trinne again went to the restaurant where Ms Brosnan was working. They had an exchange to the following effect:- "MS BROSNAN: How did you go last night, did you find somewhere to stay? MR TRINNE: I am still going, didn't find somewhere to stay. I need to tell you somebody… I did that man in. MS BROSNAN: What? MR TRINNE: I killed that man."
Ms Brosnan went to the back of the restaurant and spoke to her colleagues before returning and activating the voice recording on her mobile phone. The following exchange took place:- "MS BROSNAN: So what was it that you were telling me before? MR TRINNE: What part? That I was the man that killed that bloke? MS BROSNAN: Right, what did you mean by that? MR TRINNE: I am a sensitive guy, I can be whoever I want to be. I am you right now. … The loud noises. The fucking loud noises. He was fucked. Always slamming the doors loudly. I could hear the pipes in the walls when the taps were turning on."
Ms Brosnan then called police and reported what Mr Trinne had told her.
At 7.30pm, police attended the premises and spoke to Mr Trinne with body worn cameras activated. Mr Trinne said "Yeah I did the man in mate" and "I killed him". He later said, "Oh well he was so fucking shit. He was that fucked up cunt he couldn't even walk out to the bloody car to take him away or check the mailbox, he was coughing every fucking third breath. I couldn't even go to sleep." He also said, "I smashed him with a fucking piece of brick. That is actually why my hand's so cut… And he was biting me. I knew I had to fucking kill him." Mr Trinne showed police his hand and said, "Oh he was fighting back… I was suffocating the cunt to die, I knew I had to do it. And that's not me I'm a Queen Scout. That's how good I am. You want to know the shit I've been through." Police asked about the use of a brick, to which Mr Trinne responded, "Oh there was a piece of half brick outside, I went and got it and smashed his fucking head in."
Mr Trinne was then placed under arrest and taken to Casino police station. Shortly after he was taken into custody, Mr Trinne went into a trance like state and was taken to Casino Hospital by ambulance. He was examined by a doctor, monitored for a period of 4 hours and then discharged back to police custody.

Cause of death

The deceased was examined by Dr David Cala, Senior Staff Specialist in Forensic Pathology at Forensic Medicine, Newcastle. The cause of death was determined to be the combined effects of smothering and blunt force injury.
A post-mortem CT scan was undertaken and showed fractures of the nasal bone, left orbit superiorly and laterally, and comminuted fractures of the walls of the left maxillary sinus. These fractures were associated with haematomas in soft tissues overlying the fractures.
External examination showed multiple injuries, mainly to the left side of the head and face. The head injuries were described as mainly lacerations due to blunt force trauma. Dr Cala was of the view that the house brick described at the scene could have caused those injuries.
There were also extensive intra-oral injuries around the inner side (mucosal surface) of the deceased's upper and lower lips. Many of these injuries (and a lower lip injury) had the appearance of being caused by external pressure on the lips, causing cuts to the lips from the edges of numerous sharp teeth, or from biting down on the lower lip during a struggle. The cuts were of similar dimension to the underlying teeth. Dr Cala was of the opinion that an injury to the left side of the lower lip may have been caused by firm pressure from an upper tooth, as it was curved and of the same dimension as an upper tooth vertically above the site of the injury. In his view, the intra-oral and lip injuries may have been caused during an act of smothering where firm, sustained, external pressure from a hand or soft object (for example a pillow or cushion) was applied to the mouth and/or nose region in an attempt to occlude the outer airway, to either silence or subdue the deceased. This act prevents normal breathing and speaking by completely or partially occluding the nose and mouth. These findings were consistent with there having been a struggle between the deceased and his assailant. Internal examination supported that opinion. Facial dissection showed marked bruising at the base of the nose which could have occurred during an act of smothering if there was resistance from the deceased. In Dr Cala's view, a blow from a punch to the nose would more likely cause bruising, swelling and deformity as opposed to bruising restricted to the base.
The deceased's brain was later examined by a neuropathologist. Examination showed subarachnoid haemorrhage on the surface of the brain, particularly the frontal region bilaterally, which was likely due to blunt force head trauma.

Legislative Framework

Sections 4 and 5 of the Act define mental health impairment and cognitive impairment as follows:- 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 5 Cognitive impairment (1) For the purposes of this Act, a person has a cognitive impairment if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder.
Section 28 of the Act provides a defence of mental health impairment or cognitive impairment:- 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions.
Pursuant to s 6 of the Act, the reference to "jury" in s 28(2) includes a reference to a judge in proceedings determined by a judge alone.
Section 59 of the Act sets out the verdicts which are available at a special hearing:- 59 Verdicts at special hearings (1) The verdicts available at a special hearing include the following - (a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged. (2) A judge who determines a special hearing must include in the determination the principles of law applied by the judge and the findings of fact on which the judge relied. (3) A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met.
Section 31 of the Act permits the Court to enter a special verdict under the Act when the defendant and prosecutor agree that the proposed evidence establishes a defence of mental health impairment or cognitive impairment:- 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established.
In R v Siemek (No 1) [2021] NSWSC 1292, Johnson J said at [19]:- "In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 'aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found' (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added 'extra safeguards' in that 'the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established'. This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, 'People With Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences', 2013, paragraphs 3.159-3.160."
In this case, in my opinion, the requirements of s 31 have been met and the need for a long and costly trial has been obviated.
Sections 33 and 34 of the Act set out the consequences which flow from the return of a special verdict of act proven but not criminally responsible:- 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders - (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. … 34 Referral of defendant to Tribunal The court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned or entered and an order is not made for the unconditional release of the defendant.

Summary of the Evidence

I will now briefly summarise, in chronological order, the evidence contained in the exhibit that was before me.

Report of Dr Gerald Chew dated 7 September 2022

Dr Gerald Chew is a forensic psychiatrist commissioned by the defence to prepare a report addressing the question of the accused's fitness. Dr Chew assessed the accused by audio-visual link ("AVL") on 7 September 2022 and considered the following additional information: 1. Email instructions from the accused's solicitors; 2. Court Attendance Notice; 3. A record of the alleged facts; 4. The accused's criminal record; 5. The Guardianship Order of 7 November 2017; 6. An occupational therapy progress report under the hand of Wayne Smith dated 10 November 2021; 7. The Guardianship Order of 24 November 2021; 8. Patient Health Summary for Mr Trinne from McKidd Medical Centre Kyogle, which noted a history of epilepsy, schizophrenia and chronic back pain; and 9. Excerpt of an email from Mr Trinne's sister containing further background and information regarding his treatment going back to 2004.
Dr Chew obtained a personal history from Mr Trinne. He reported that he was born in Mildura and grew up in that region. He was not aware of any issues with his mother's pregnancy, his birth, or his early developmental milestones. He reported that he had four siblings and that his father was violent when he was growing up. He reported that he had one intimate relationship in his twenties and that he had no children.
Dr Chew observed that the medical and psychiatric history before him indicated that Mr Trinne had received treatment for schizophrenia and epilepsy. Mr Trinne accepted that he had epilepsy but denied having schizophrenia. He claimed that his schizophrenia diagnosis was a fabrication invented by a social worker. He was vague about any previous treatment or hospitalisations. Dr Chew reported that he specifically asked Mr Trinne about clozapine or depot treatment and that Mr Trinne replied tangentially.
Mr Trinne confirmed that he had been taking medications while in custody, including valproate and another medication, the name of which he could not recall. Mr Trinne was hesitant to admit to any substance use but eventually admitted to using cannabis, without specifying the quantity. Mr Trinne reported that he was prescribed cannabis products by a doctor. He also reported previously being prescribed "hemp seed oil" for his epilepsy while in the community. Dr Chew reported that Mr Trinne appeared hesitant to engage with further treatment and he was not motivated to abstain from cannabis.
Dr Chew believed that Mr Trinne appeared to be guarded and suspicious. He was of the view that Mr Trinne displayed formal thought disorder with marked tangentiality of ideas which was difficult to follow. There were delusions about energy transfers, telepathy and messages from God including "suggestions" pointing him in the right direction. Dr Chew did not observe Mr Trinne to be overtly responding to non-apparent stimuli, and he was oriented to time, space and person. His cognition was mildly impaired on bedside testing, scoring 26/30 on the Montreal Cognitive Assessment ("MoCA") with deficits in short term memory. Mr Trinne denied any past or current thoughts of self-harm or suicide.
Dr Chew attempted to address fitness matters with Mr Trinne. Mr Trinne was able to tell Dr Chew about the charge he was facing in layman's terms. He was also able to tell Dr Chew about a plea and the difference between guilty and not guilty. However, Mr Trinne was confused about the purpose of a trial. Mr Trinne did not understand the concept of a jury. Mr Trinne said that he did not understand why he required a lawyer and that he thought he would be fine without one. He did not understand the role or purpose of a barrister, the judge, or the prosecution. Mr Trinne reportedly said that the judge would be a "perfectionist dictator like my father". He was not able to provide a coherent explanation of the concept of evidence.
Dr Chew was of the opinion that, although Mr Trinne's presentation was complex, his most likely primary diagnosis was chronic treatment resistant schizophrenia. Dr Chew observed that he might also have chronic seizure disorder and chronic cannabis use disorder. Dr Chew was of the view that the accused did not meet the standard set by s 36 of the Act and was therefore unfit as at the date of his report.
Dr Chew recommended further investigation (including review of medical records, specialist neurology, neuroimaging, EEG and formal neuropsychological testing) and treatment (comprising intensive psychiatric follow up with antipsychotic medication). Dr Chew said that it was difficult to predict Mr Trinne's prognosis at the date of the report, but that if he responded to an antipsychotic medication such as clozapine, Dr Chew would expect him to become fit within 6 to 12 months. Dr Chew noted that approximately one-third of patients with treatment resistant schizophrenia respond to clozapine.

Report of Dr Kerri Eagle dated 25 August 2023

Dr Kerri Eagle, forensic psychiatrist, was commissioned by the Crown to prepare a report addressing the questions of Mr Trinne's fitness and mental health impairment. Dr Eagle assessed Mr Trinne by AVL on 29 July 2022. She also relied on the following sources of information:- 1. A clinical psychiatric assessment of Mr Trinne of 8 August 2023; 2. A letter of instruction from Ms Clare Magni, solicitor at the Office of the Director of Public Prosecutions, dated 16 May 2023; 3. Crown case statement; 4. The report of Dr Chew of 7 September 2022; 5. NCAT Guardianship application; 6. National 360 OT Progress Report of 24 August 2021; 7. Patient health summary dated 2 May 2022; 8. The brief of evidence; 9. Justice Health Records; and 10. Casino Hospital Records.
Dr Eagle made several observations regarding Mr Trinne's presentation during the AVL assessment:- 1. Dr Eagle reported that at the start of the interview, Mr Trinne was hesitant to sit down and said "I don't want to sit in the seat. I feel the energy of all the people who've sat in the seat before." Mr Trinne eventually agreed to sit down; 2. Mr Trinne said "I could feel the presence of other people around me before I get to see them … feel energy before I hear them." When asked if he heard other people's thoughts, Mr Trinne said "I get the sensation of doing similar acts to what they have done." When asked why he thought this occurred, he said "I'm very sensitive." When asked if he had special powers or a special role, he said "something … a gift for me. Nobody understands"; and 3. Mr Trinne said "I do believe in God and the earthly mother … I'm the last one. I'm not a real man … as females get more blended more into males". Mr Trinne described himself as a "peaceful quiet fellow". However, Mr Trinne reportedly also indicated that he had a special role to find people on earth and "make sure they are killed or taken away".
Dr Eagle obtained a personal history from Mr Trinne. Mr Trinne said that he was born in Mildura and was the youngest of five children. His father was aggressive towards the children and would hit him. He reported that he was "overwhelmed and in fear" due to the domestic violence. Mr Trinne said that "that's why my spinal condition got bad because I was curling up into a ball".
Mr Trinne told Dr Eagle that he attended school until he was 16 years old. He said that he went to a trade school, and became a motor mechanic and worked in that capacity until he was 28 years old. Mr Trinne reported that he then developed back pain and received a disability support pension. He said that he sold his house and lived with his brother for a time, but that "after two and half years he told me to piss off". He reported that he had nothing to do with his older brothers. Mr Trinne stated that he was not in a relationship, and had no children. He said that he had been living alone in his unit "for a couple of years". He reported that his only other support was the Church, which had been "extremely positive and helpful".
Mr Trinne said that he started smoking cannabis when he was 19 years old. He had previously smoked 2 to 3 cones a day, but his consumption increased to 5 cones a day when he moved into his unit. He denied using any other illicit substances. Mr Trinne reported that he had previously consumed "a little bit of alcohol" but that he gave it up at 35 years old, when he became a vegetarian and celibate.
When asked about his relationship with the deceased, Mr Trinne said that "nobody had anything to do with him because everyone thought he was a fucked up cunt, a very negative person".
Dr Eagle obtained an account of the offending from Mr Trinne, who said that:- "I was in my flat listening to music with headphones on. He had a new TV… I felt his negativity, cracked shit, asked him to turn it down. That's why he wanted to kill me. He was sitting out the front his flat thinking about hating me and wanting to kill me, I had a seizure … 20-40 minutes, later social worker found me lying on ground."
Dr Eagle reported that Mr Trinne expressed a belief that the deceased had caused him to have that seizure. Mr Trinne said that once he regained consciousness:- "I had to go back to sleep in my flat (because of the rain). I was getting challenging dreams that I was going into his flat and suffocating him, hand over nose and mouth. Happened four times and on the fifth occasion woke up and did it to him but I couldn't do it, because he was stronger. He was thinking 'that fucking cunt.' So I had to go back with a brick. Then epileptic seizure."
When asked if that was the right thing to do, Mr Trinne said:- "I wasn't living the truth of myself. I was overwhelmed by him and the environment. I'm a different type of character otherwise that got to be honoured by the Queen of England … I've had to run away from all the negative people in my life."
In her assessment of Mr Trinne's mental state, Dr Eagle reported that Mr Trinne demonstrated bizarre persecutory and grandiose delusions, passivity phenomena, and referential beliefs. He displayed a relatively systematised belief that he felt the emotions and thoughts of others through their energy, both in the present and historically. He described feeling the energy of the person who had sat in the chair that he was sitting in, and expressed a belief that he had a special role or gift to find others on earth to "make sure they are killed". He believed that he had been honoured by the Queen of England. Dr Eagle reported that Mr Trinne misinterpreted routine signs as being significant and associated them with persecutory beliefs.
Dr Eagle observed that Mr Trinne did not believe that he had a mental illness or any need for antipsychotic treatment. He had no understanding of psychosis.
In Dr Eagle's opinion, Mr Trinne met the diagnostic criteria for schizophrenia. She noted that Mr Trinne had experienced relapses of psychosis characterised by auditory hallucinations, bizarre persecutory, grandiose and religious delusions, and disorganised thought form and behaviour. He presented clinically as having typical cognitive impairments in reasoning and problem solving that are associated with schizophrenia. She observed that Mr Trinne had demonstrated enduring negative symptoms associated with the illness, including social withdrawal and isolation, reduced motivation, and anhedonia. She believed that Mr Trinne's level of function had deteriorated since the onset of his illness, and that he had persistent symptoms despite treatment with at least two antipsychotic medications over a therapeutic timeframe, indicating treatment resistance.
Dr Eagle noted that Mr Trinne has other serious medical conditions, including a confirmed diagnosis of focal epilepsy and an atrial flutter that had previously required cardioversion. Dr Eagle considered that Mr Trinne might also have a neurocognitive disorder, and a cannabis use disorder which may have exacerbated his chronic psychotic illness.
In Dr Eagle's view, Mr Trinne had, and continues to have, a mental health impairment within the meaning of s 4 of the Act. In her opinion, Mr Trinne might also have a cognitive impairment within the meaning of s 5 of the Act but, given that he has continued to display symptoms of active psychosis, a structured cognitive assessment would not be reliable for the purpose of establishing a diagnosis.
Based on her assessment of the specific fitness criteria, Dr Eagle believed that at the time of her assessment with Mr Trinne, he was unfit to plead and unfit to be tried. In Dr Eagle's opinion, Mr Trinne was unable to demonstrate sufficient understanding of his options to plead or his right to challenge jurors, and he was not capable of understanding the effect of any evidence given against him. She said that Mr Trinne would have significant difficulty providing coherent instructions to his legal representatives or a coherent account of events to the Court.
Dr Eagle considered both limbs of the mental health defence in s 28(1) of the Act. In her opinion, it is likely that Mr Trinne was aware of the physical nature of his actions at the time of the offence, but he would have lacked the capacity to reason as to the wrongfulness of his actions. She considered that Mr Trinne was acutely psychotic at the time of the offending, resulting in disorganised thought processes and bizarre delusions which would have impacted his reasoning and behaviour. Despite Mr Trinne's responses to police immediately after the offending, which suggested that he had some awareness that he had done something wrong, in Dr Eagle's view Mr Trinne was nevertheless unable to reason with a moderate degree of composure as to the wrongfulness of his actions in harming the deceased due to his acute psychotic illness. Thus, in her opinion the defence of mental health impairment was available to Mr Trinne.

Reasons for First Decision of the Tribunal dated 30 November 2023

On 30 November 2023, the Tribunal reviewed Mr Trinne following Dhanji J's finding on 9 October 2023 that Mr Trinne was unfit to be tried but may become fit to be tried.
The Tribunal had before it a report of Mr Trinne's treating psychiatrists, Dr Martin Reading and Dr Kevin Bragg, dated 28 November 2023. On admission to Long Bay Hospital, Mr Trinne was assessed by Dr Reading and the treating team. Symptoms of psychosis, delusions relating to energies of others and atypical beliefs about food were noted. He was commenced on antipsychotic treatment with oral aripiprazole. Although there was a reduction in his levels of distress, many symptoms remained and they were ongoing at his mental state examination on 21 November 2023. At that examination, Mr Trinne's affect was predominantly blunted with moments of irritability. He had ongoing serious disorder of thought form with derailments and tangential responses for which he was unable to meaningfully account. He maintained ongoing atypical beliefs about "energies" of others and was unable to meaningfully address questions as to fitness to stand trial. His epilepsy was satisfactorily treated and he had not had a seizure in 12 months.
The Tribunal observed that Mr Trinne's treating team were of the view that to date his treatment had only had a modest attenuating effect on his symptoms. They agreed that he was unfit to stand trial. The treating team believed that clozapine might have the potential to improve his symptoms of schizophrenia, and that a trial of that drug would take place in 4-6 weeks following the Tribunal hearing. The efficacy of that treatment would be known within about 3 months from the commencement of clozapine.
The Tribunal concluded that Mr Trinne remained unfit to be tried, but that he may become fit within 12 months of the Court's finding that he was unfit.

Reasons for Second Decision of the Tribunal dated 11 April 2024

The Tribunal reviewed Mr Trinne again on 11 April 2024.
In a report dated 5 April 2024, Dr Chengzhang Li, psychiatric registrar for Dr Reading, noted that Mr Trinne's symptoms and insight were essentially unchanged. A trial of clozapine commenced on 10 January 2024 with a daily dose at 12.5mg with a modified titration plan which took into account Mr Trinne's comorbidities. His clozapine was eventually increased to 25mg, but he then began to report nightmares about people wanting to kill him, which he attributed to the clozapine. He subsequently began to refuse the medication which was then ceased. It was reported that despite subsequent extensive attempts to re-engage him with clozapine treatment, he was reluctant to consider a retrial due to the side effects of the medication. He was thereafter treated with two separate antipsychotic medications. It was noted that antipsychotic treatment options for Mr Trinne's illness have been limited by his physical comorbidities, especially his low blood pressure for which he is also prescribed medication. Because of a tremor, slowed gait and movements, Mr Trinne has been referred for a neurological consultation for assessment of a possible Parkinson's type disorder.
It was thought unlikely that Mr Trinne would be able to instruct legal representatives so as to mount a defence and provide a version of the facts to his legal representatives or to a court if necessary, owing to his serious disorder of thought form preventing him from providing coherent instructions and a coherent version of events.
The Tribunal noted that Mr Trinne was unable to participate in any meaningful manner at the hearing and declined to be seated for the duration of the proceedings.
The Tribunal determined that Mr Trinne remained unfit to be tried for the offence and would not become fit to be tried within 12 months of the Court's finding made on 9 October 2023.

Further report of Dr Gerald Chew dated 16 August 2024

Dr Chew reported on 16 August 2024 on the question of a defence pursuant to s 28 of the Act. He conducted an assessment via AVL on 16 August 2024. His opinion was based on his assessment of Mr Trinne, the report of Dr Eagle, significant portions of the brief of evidence and conversations with Mr Trinne's treating psychiatrist, Dr Reading.
Mr Trinne was unable to articulate what his mental illness was, although he understood that he "has issues". When he walked into the room, he began to shake. He repeated and expanded upon delusions about sensing energies and emotional states of others.
When asked about the offending, Mr Trinne gave a complicated account that was difficult to follow. He said that the deceased was aggressive and that he was sensitive to the deceased's presence and could feel his energies. He said that the deceased was very loud and that he could hear him, even when he was wearing headphones. He therefore resorted to sleeping outside in the shared laundry. Mr Trinne told Dr Chew that the energies transferred from the deceased had become aggressive and that the deceased had wanted to kill him. He began having dreams about suffocating the deceased. On the fifth occasion, he tried to suffocate him but the deceased was too strong. Mr Trinne told Dr Chew that the deceased had a thought about killing him with a brick, so Mr Trinne then walked out of the deceased's unit, came across a brick and used it to kill him in the same manner that he said the deceased had wanted to kill him.
Mr Trinne again denied any treatment for psychiatric issues other than epilepsy, despite the medical records indicating treatment for both schizophrenia and epilepsy. Mr Trinne was prescribed daily antipsychotic medication, being aripiprazole and quetiapine.
On examination, Mr Trinne engaged freely and easily. He had no abnormal psychomotor activity. His affect was blunted and incongruent. His speech was hesitant at times. He displayed formal thought disorder with some tangentiality of ideas which was difficult to follow. There were delusions about energy transfers relating specifically to the deceased. He was not overtly responding to non-apparent stimuli. He was oriented to time, place and person and his MoCA score was the same as at the 2022 assessment. He was hesitant to engage in treatment and not motivated to abstain from cannabis.
Dr Chew's opinion as to Mr Trinne's diagnosis was the same as that in his 2022 report.
In Dr Chew's view, at the time of the offending, Mr Trinne was suffering from a mental health impairment, namely a psychotic disorder characterised by bizarre delusions about negative emotional energy transfers from the deceased and disorganisation. In his opinion, because of the active psychosis, Mr Trinne was unable to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. Thus, on the balance of probabilities, in Dr Chew's opinion Mr Trinne has the defence of mental health impairment available to him.

Parties' Submissions

Both Mr Campbell and Mr Apps provided the Court with comprehensive and thoughtful written submissions. Each submitted that I would easily be satisfied on the evidence that Mr Trinne had a mental health impairment (schizophrenia) and that a defence pursuant to s 28(1)(b) of the Act was made out. They submitted that if I was satisfied that the defence was established, I should enter a special verdict of act proven but not criminally responsible. They submitted that I should make orders pursuant to ss 33 and 34 of the Act and agreed that I should make the consequential orders and directions set out at [105] below.

Consideration

Based on the material in the exhibit, I am satisfied beyond reasonable doubt that Mr Trinne committed the acts that caused the death of the deceased. The objective circumstantial evidence alone allows me to make that finding, and I observe that there is no reasonable hypothesis consistent with any other conclusion. The direct evidence in the form of admissions made to Ms Brosnan and police, which might otherwise on their own have been unreliable or inadmissible, support the conclusion I have come to.
The Court, being satisfied that the physical elements of the offence of murder have been proved by the Crown beyond reasonable doubt, then considers the defence of mental health impairment without considering the question of the mental element of murder; i.e. that the accused had the intention to cause death or grievous bodily harm: see Hawkins v The Queen (1994) 179 CLR 500 at [517] and R v Tonga [2022] NSWSC 1064 at [15]. I observe that Mr Campbell submitted that in any event the nature of the deceased's injuries would allow for an inference that the accused had the requisite intention.
As to the question of mental health impairment, both Dr Chew and Dr Eagle agree on a diagnosis of schizophrenia. Based on their evidence, I am satisfied on the balance of probabilities that Mr Trinne suffered and continues to suffer from a mental health impairment within the meaning of that term in s 4 of the Act. It is a psychotic disorder, which at the time of carrying out the acts constituting the physical elements of the offence, caused him to have an ongoing disturbance of thought, mood, volition, perception and memory, and is regarded as significant for clinical diagnostic purposes. The disturbance impaired and continues to impair Mr Trinne's emotional well-being, judgment and behaviour. That mental heath impairment was present on 25 and 26 April 2022. It continues to be present: see the Reasons of the Tribunal dated 11 April 2024 at [14] to [16].
Dr Chew and Dr Eagle agree that at the time of the offence, Mr Trinne did not know that his actions were wrong. Based on their evidence, I am satisfied on the balance of probabilities that at the time of carrying out the acts that killed Mr Priestly, Mr Trinne had a mental health impairment (schizophrenia) that had the effect that he did not know that the acts were wrong, satisfying s 28(1)(b) of the Act. It is therefore unnecessary to deal with s 28(1)(a) of the Act, about which the expert evidence was largely silent.
So far as cognitive impairment is concerned, whilst there is evidence that the accused might suffer from a cognitive impairment, in my opinion absent any current or historical neurological or neuropsychological evidence, the most that can be said is that Mr Trinne's schizophrenia, complicated by his epilepsy, has likely affected his cognitive function. I refer specifically to the comments of Dr Eagle in her report of 25 August 2023 at [99]:- "Mr Trinne may have a neurocognitive disorder, that has caused cognitive impairments beyond the effect of his severe mental illness. He was noted to have an adaptive function in the very low range in a behaviour support plan used for a guardianship hearing. His poor adaptive functioning may be due to his inadequately controlled mental illness. A structured neurocognitive assessment would be needed, after his mental illness has been stabilised, to help confirm any additional diagnosis. It is possible he has a developmental disorder, but unlikely on the information available including that he apparently worked as a qualified mechanic."
In its reasons of 30 November 2023 at [22], the Tribunal stated that due to Mr Trinne's ongoing psychosis, it was clinically inappropriate to assess him for cognitive impairment.
I cannot find on the evidence that Mr Trinne had (or has) a cognitive impairment satisfying s 5 of the Act, or that a cognitive impairment had the effect that Mr Trinne either did not know the nature or quality of his act or that he did not know that the offending was wrong within the meaning of s 28(1)(a) or s 28(1)(b) of the Act.
As I have said, both Mr Campbell and Mr Apps agree that the evidence establishes a defence of mental health impairment. After a careful consideration of the evidence, and in particular the reports of Dr Chew and Dr Eagle, I am satisfied on the balance of probabilities that the defence of mental health impairment is established.
Accordingly, on 12 November 2024 I entered a special verdict of act proven but that Mr Trinne was not criminally responsible pursuant to s 31 of the Act. The verdict entered on the indictment dated 23 May 2023 is "act proven but not criminally responsible".
As I pointed out in R v Eleter [2023] NSWSC 931 and R v Woodham (No 2) [2023] NSWSC 1345, paraphrasing Johnson J in R v Siemek (No 2) [2021] NSWSC 1293, it is essential that the community understands the effect of the verdict which has been returned and the orders and directions made by the Court. Mr Trinne will remain in custody and be held as a forensic patient under the supervision of the Tribunal. He may only be released if the Tribunal is satisfied that the safety of the defendant or any member of the public will not be seriously endangered by his release: ss 29(d) and 84(2) of the Act. His case will be reviewed by the Tribunal as soon as practicable and will be subject to review at six monthly intervals: s 78 of the Act. The Tribunal may review him at any time: s 79 of the Act. If Mr Trinne is released in the future, it may be with conditions, and if any of those conditions are breached or his mental condition deteriorates to a point where he may become a serious danger to others, the Tribunal may order that he be apprehended and further detained: s 109 of the Act.

Orders

On 12 November 2024, I made the following orders and directions:- 1. A special verdict is entered pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 that the act is proven but the defendant is not criminally responsible due to mental health impairment; 2. Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, I order that Glenn Raymond Trinne be detained in a correctional facility or at such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law; 3. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court refers Glenn Raymond Trinne to the Mental Health Review Tribunal; 4. I direct the Registrar to notify the Minister for Health as soon as practicable of the making of these orders; 5. I direct the Registrar to notify the Mental Health Review Tribunal as soon as practicable of the making of these orders and to provide the Tribunal with the following documentation:- 1. a copy of the Court's reasons for verdict and for the making of these orders; 2. the transcript of these proceedings; and 3. copies of the exhibit from the proceedings including the reports of Dr Eagle and Dr Chew; 1. I direct that the Registrar notify the Justice Health and Forensic Health Network (Justice Health) as soon as practicable of the verdict and orders in this matter and to provide Justice Health copies of the following documents:- 1. A copy of the reasons of the Court for verdict and the making of these orders; and 2. Copies of the reports of Dr Eagle and Dr Chew.

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: 15 November 2024

JUDGMENT

The accused, Glenn Raymond Trinne, stands charged with the murder of Graham Priestly on or about 26 April 2022 contrary to s 18(1)(a) of the Crimes Act 1900.
On 9 October 2023, Dhanji J conducted a fitness hearing and found that the accused was unfit for trial pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"), but that the accused may become fit to be tried within 12 months pursuant to s 47(1)(a) of the Act. His Honour referred the accused to the Mental Health Review Tribunal ("the Tribunal") for further review pursuant to s 49(1) of the Act, adjourned the proceedings pending the determination of the Tribunal pursuant to s 47(2)(b) of the Act, and remanded the accused in custody pursuant to s 47(2)(d) of the Act: R v Trinne [2023] NSWSC 1212.
On 30 November 2023, the Tribunal determined that there was a possibility that the accused may become fit within 12 months of Dhanji J's finding of unfitness on 9 October 2023 (i.e. by 9 October 2024). However, on 11 April 2024 the Tribunal determined that the accused remained unfit to be tried and that he would not become fit by that date.
On 4 July 2024, the Crown advised the Court that the matter would be proceeding pursuant to s 53(2) of the Act. The matter was therefore listed for special hearing pursuant to s 55 of the Act. No election to have the matter determined by a jury was made by the defence and accordingly the special hearing was to be determined by a judge alone pursuant to s 56(9) of the Act.
The Crown and the accused's counsel advised the Court of their agreement, for the purpose of s 31 of the Act, that the proposed evidence established a defence of mental health impairment pursuant to s 28 of the Act. It is a condition of s 31 that the Court, after considering the proposed evidence, is also satisfied that the defence is established.
I therefore conducted a special hearing on 11 and 12 November 2024 to determine whether or not the evidence established a defence of mental health impairment. I was so satisfied and on 12 November 2024 entered a special verdict of act proven but not criminally responsible. I then made further orders and directions.
As I observed in R v Woodham (No 2) [2023] NSWSC 1345 at [5]:- "This was not a judge alone trial in the sense prescribed by s 133 of the Criminal Procedure Act 1986. I am not required to expose my reasoning process linking the principles of law with the facts found and which justify the verdict I have reached: Fleming v R (1998) 197 CLR 250; [1998] HCA 68."
Nevertheless, in the interests of transparency and in conformity with the principle of open justice, what follows are my reasons for making the orders and directions on 12 November 2024.
I am grateful to Mr Campbell SC who appeared on behalf of the Crown, and Mr Apps who appeared on behalf of the accused, for the collaborative manner in which they conducted these proceedings. The purpose of this special hearing was so that I could consider the agreed position of the Crown and the accused by carefully examining the evidence that was put before me. This was not a trial by judge alone and was neither adversarial nor accusatorial. Rather, it was an inquiry instigated by the parties at an early stage to obviate the need for a lengthy and costly trial, when both the prosecution and defence believe that on the available evidence, a defence of mental health impairment was established. It is for the Court to find facts and to apply ss 4 and 28 of the Act to determine whether or not the defence of mental health impairment is made out on the balance of probabilities.

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