R v Woof

Directions of Law (General)

1. Given that this special hearing is to be conducted as nearly as possible as if it was a trial, and that I am determining whether the Accused committed the charges alone, with reference to the requirements of s 133(2) of the Criminal Procedure Act 1986 (NSW) ('CP Act'), I will now direct myself as to certain matters of law.
2. I will initially address directions of a general nature.

Nature and consequences of a special hearing

1. The Accused's unfitness for a normal trial may or may not be apparent as the trial proceeds. That is because unfitness for trial may arise for any one or more of several reasons. He may not understand the nature of the charges against him or be able to decide whether he has a defence to them. He may not be able to make a rational decision about whether he is guilty or not guilty, or how to plead to the charge. He may not be able to understand, generally, the nature of the criminal proceedings and what their course and outcome may mean to him. The unfitness may be an unfitness to give his lawyers instructions about what his defence is or how the prosecution evidence is wrong, or should be questioned, or it may be an inability to apply himself to the proceedings in an informed or constructive way. Whether or not any one of these matters is apparent to me, I must accept that the Accused is unfit to be tried in a normal way because the law insists an accused have the mental capacity to do all of these things.
2. The conduct of a special hearing could be different in one or more of the ways to which I have referred, that is, in the way in which the Accused is able or unable to participate or contribute to his defence. In every criminal trial an accused may or may not choose to give evidence. That remains so in a special hearing such as this, but an unfit person may not be capable of making a reasoned decision about that, or indeed other matters concerning the hearing. At a special hearing the Accused is taken to have pleaded not guilty to the charges against him, unlike in a normal trial when they may enter a plea of either guilty or not guilty. The law is intended to ensure a special hearing does not prejudice the Accused any more than his unfitness already may do. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence.
3. The purpose of a special hearing is to see that justice is done, as best it can be in the circumstances, to the Accused and the prosecution. The Accused is put on trial so that the case against him can be determined. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives the Accused an opportunity of being found not guilty, in which case the charges cease to hang over his head, and if he requires further treatment, it may be given to him outside the criminal justice system.
4. I will have to reach my verdicts based on the limited evidence available. There are various ways evidence at a hearing of this nature may be limited. For example, the Accused may be unable to give or call evidence, or unable to give adequate instructions to his lawyers about which witnesses might be called to assist his case, or, as to matters on which cross-examination could be based.
5. The verdicts I may give in this case are "not guilty", "special verdict of act proven but not criminally responsible" or "the Accused committed the offence/s based on the limited evidence available".
6. There are further directions I will later give myself in these reasons regarding the 'defence' of mental health impairment.

Overall duty and responsibility

1. As the Accused is deemed to have pleaded that he is not guilty to all counts (CP Act, s 56(5)) it is my duty and responsibility to consider whether he committed the offences for which he is charged and the appropriate verdicts.

Obligation to apply the law

1. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Impartiality

1. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to either of the complainants sway my judgment.
2. Having regard to the nature of the offences for which the Accused is charged, I must also strive to avoid any prejudice against the Accused.

Evaluating the evidence

1. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called, and the various exhibits that were tendered in the Crown case.
2. I am obliged to consider and assess the evidence given by the various witnesses and decide whether they are telling the truth, or are reliable, and whether I accept their evidence. My ultimate decision as to what evidence I accept, and what evidence I reject, may be based on a range of matters, including the content and context of what the witness had to say, the manner in which the witness said it and the general impression which any witness made upon me in giving evidence.
3. As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. A substantial part of my 'experience' is my career experience, first as a lawyer and secondly, as a Judge; with all the learning and observation of human affairs that comes with this. I must not act capriciously or irrationally.

The parties' submissions

1. I have considered the Crown's submissions that have been made and give them such weight as I think they deserve. In no sense do I treat those submissions as evidence in the case. The Accused did not make any submissions.

Transcripts of video or audio-video recordings

1. During the course of the hearing, written transcripts of audio (telephone) and video recordings (eg the ERISP with the Accused) were supplied to me. They fell within Exhibit A with the recordings themselves tendered separately.
2. Even though the transcripts fell within a composite exhibit (Exhibit A) I do not give the evidence of the relevant transcript of the recordings more weight than they deserve because it was reproduced in written form and because I am, in effect, receiving that evidence a second time. It is important for me to recall the evidence of the relevant sound or video recording as it was given during the trial and what, if anything, I thought about the reliability of the evidence as I saw and heard it.

Drawing inferences

1. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

Burden of proof

1. I now direct myself on the onus of proof. Section 54 of the CP Act provides that the Accused is to be acquitted unless the Crown can prove, to the required criminal standard of proof, on the limited evidence available, that the Accused committed the offence charged, or another offence available as an alternative to the offence charged.
2. The burden of proof of guilt of the Accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges, as those elements were identified earlier in these reasons. However, the Crown does not bear the onus of proving every disputed fact in issue. It is the essential elements for each offence that the Crown must prove to the criminal standard.
3. There is no onus of proof on the Accused at all. It is not for the Accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Accused does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

1. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential elements of the charges beyond reasonable doubt, then the Accused must be found "not guilty" of the charges.

Standard of proof

1. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence for the Crown in respect of any matter which the Crown must establish to make out its case, and after considering the submissions made to me by each of the Counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
2. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the Accused may be guilty, if I have a reasonable doubt in respect of that matter, the Accused is entitled to the benefit of that doubt, and I must find him not guilty. This is so in respect to the Crown case against the Accused for each count.
3. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the Accused is guilty of the offences charged. The Accused bears no onus of proof in respect of any fact that is in dispute. I say, again, that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged.
4. I will direct myself regarding the consequences of the Accused not giving or calling evidence later in these reasons when addressing his case.
5. I will also direct myself regarding a potential defence of mental impairment later in these reasons.

Chronology

1. What follows is essentially uncontested and is primarily sourced in the documents that comprise the Crown's Exhibit Book (Exhibit A).

The Accused's 000 call

1. On 11 October 2021, the Accused made a 000 call from his residence at 1 Northmead Avenue, Northmead. As at that date, he was leasing those premises under a written residential agency agreement dated 21 May 2020 (Exhibit D).
2. Photographs of the Northmead premises that were taken in October 2020 for the purpose of an inspection (apparently during the COVID lockdown) (Exhibit D) indicated that the condition of the house outside of the property was unremarkable at that point, when the Accused was the sole occupant. That is to say, there was no inkling that cannabis plants were outside the home.
3. In the 000 call (the recording of which was Exhibit B and the transcript of which was Tab 1 of Exhibit A), the Accused informed the 000 operator that he had (just) finished his job and there was "some things that the Police might be interested in seeing at this address". Asked by the operator what sort of job he was referring to, the Accused's answer was that he was, or rather had been, "creating a new world". He went on to specify that he had produced "lots of sculptures", which were located on the front median strip of his home.
4. Asked to explain why he was calling 000, to which, typically, only life-threatening calls were made, the Accused explained that it was a sculpture at the front of his place was a "bomb" which was "ready to go off".

The Police 'walkthrough' of the Accused's premises

1. At about 7:15pm on the same date, 11 October 2021, and after a crime scene warrant had been granted by the Local Court, police officers attended the Accused's Northmead premises to execute the warrant. A video recording of the walkthrough the Accused's premises was Exhibit C (the transcript of what was said being Tab 3 to Exhibit A). Only the voices of SC Costa, the Officer in Charge ('OIC'), and PCSC Garcia were heard. During the search, 11 photographs were taken of items discovered (Exhibit A, tab 3).
2. What police found when they arrived was a large boulder with a pile of damp cannabis, and $1,000 cash on top of it, amongst a number of other things. Amongst the photographs that were taken, one prominent photograph was that of a rock boulder, surrounded by other rocks in the front driveway to the premises (page 8). The Accused later confirmed that surrounding the rocks was cannabis seed scattered, in a pile, on the driveway.
3. A list of all the items of property seized during the search is at Tab 5 of Exhibit A. In her evidence, the OIC confirmed that items 7-12 (incl) indicated individual samples of cannabis plans which, in the aggregate, numbered 1,564 plants.
4. There was also handwritten signs in the backyard saying such things as, "Stoned", and "Rock wellness centre and cannabis sanctuary". There were also a number of seedlings in the backyard. In a laundry at the rear of the house, police found a drying oven with green vegetable debris in the bottom of it. Inside the house, police located on a shelf in the lounge room books titled "A Field Guide to Marijuana" and "Guide to Fermentation". On the coffee table in the lounge room were two dark coloured resealable bags containing 39.4 grams of cannabis leaf, and in one of the kitchen cupboards, police found a clear resealable bag containing 6.9 grams of cannabis leaf.
5. For the purposes of s 43 of the DMT Act, Senior Constable Tayla Shearley certified that there were 1,564 cannabis plants, in various sizes, on the property that had been examined and analysed.
6. SC Shearley was unavailable to give evidence. Apparently acting upon the Accused's request, the Crown called Chantelle McCartney, a police officer with similar credentials to SC Shearley, albeit with lesser experience and who, coincidentally, attended the inspection on 11 October 2021. This was for the purpose of enabling the Accused to cross-examine that officer in lieu of SC Shearley. However, at the hearing, and apparently contrary to an earlier indication, the Accused chose not to cross-examine the officer; saying at that time that "we've already established the fact that it is cannabis, and to present another witness to basically explain the same thing seems superfluous at this point" (T 31.32).

The ERISP (Exhibit E)

1. On 22 October 2021, the Accused agreed to be interviewed by two police officers, the OIC and SC Tokatlian. This was after being read his rights by the custody manager at Parramatta Police station and he was cautioned. A transcript of that interview is located (Tab 9) within Exhibit A. Towards the end of the transcript there are multiple colour photographs which had been drawn to the Accused's attention during the interview. The video recording of the interview is Exhibit D.
2. The Accused pertinently stated that: 1. He had been renting 1 Northmead Avenue, Northmead for about 18 months; 2. he had been an artist for 25 years and, asked what he did for work, described himself as a sculptor, and artist; 3. he had worked in the ambulance service for four years, (1989 - 1993); 4. he was living alone at the property; his daughter had previously lived with him, but she moved out quite some time before; 5. he turned his place into a 'sanctuary', for people, animals and plants, over 12 months (before the interview); 6. his 'sculptural ensemble' (which he had worked upon over the preceding 16 years), which he referred to when ringing the 000 line, represented a "bomb", a word indicating a climatic end to a project; 7. the cannabis plants growing in the yard were part of an ensemble of an entire work, but there other plants, vegetables and flowers; 8. the police 'fixation' on the cannabis isolated the cannabis, when it was just a component of his 'ensemble'; 9. cannabis was created as part of nature; 10. he wanted to celebrate nature in all its forms without judgment and without trying to divide things between right and wrong; 11. he had sown the entire yard with bird seed, all sorts of seeds, and that had included cannabis seeds in it as part of the bird's diet; 12. he had watered and fertilised everything within the property; 13. the cannabis has been grown primarily for the bird seed, but it was also pretty to look at; and 14. he threw cannabis seed to possums and rats; as well as eating it himself.
3. When police confirmed they had seized all of the cannabis plants, the Accused asked, "did you get every single one?". The police informed him they had seized "around the 1,600 mark", and the Accused replied, "I thought there would've been more. Like, all those little ones and stuff". He also accepted that they were in the process of seeding.
4. An important exchange in the ERISP was as follows: "Q102: OK. Do you understand that cannabis is illegal at the moment? At present? A: I understand that it is a plant that causes you a lot of problems, and it has got nothing to do with me. Q103: Yeah. A: I, I want to celebrate nature in, in it's (sic), all of it's (sic) forms, without judgment and without, without trying, as we do as humans, to constantly divide things, to say, This is right, that is wrong. This is right, that is wrong." … A: It's a plant. That's got nothing to do with us. We gave up our right to, to dis (sic), to determine what was OK and what wasn't when we decided to turn our back on nature. Q107: So what we're … just trying to explain. So, here in New South Wales and Australia --- A: Yeah. Q108: Um, it's an offence, OK? A: OK Q109: [17:32] To cultivate, knowingly take part in the cultivation --- A: Yep. Q110: Um, to possess or to supply a prohibited plant, OK? A: OK. Q111: And cana, cannabis falls under that criteria. A: Yeah. Q112: OK, and that's what we're saying, and it's --- A: Yeah, I understand that. Look, I, I totally understand your point of view as well. Q113: Yeah. A: Um, but I'm just trying to say that it's something that we don't have any control over. I know you want to control it, but you don't. Q114: Yeah. A: OK? Neither do I. It's just a plant, and it should not be deified in the way that it has been, and it should not be demonized in the way that it has been as well. It's just a plant."
5. Another important exchange occurred later in the interview. The police alluded to the Accused's past experience with the ambulance, and dealings with prohibited drugs, prescription drugs and pharmaceuticals: "Q619: So obviously you would have had some sort of knowledge. A: Yep. Q620: OK. Would it be fair to say that, the, the flowers that you were growing --- A: Yep. Q621 … --- you had some sort of knowledge that was prohibited. Would that be fair to say, again --- A: Look --- Q622: --- It's, it's a simple --- A: I can't look at it from that point of view, you know. Q623: It's --- A: I can't. Q624: I, I get the point of view you're --- A: Yep. Q625: --- coming from, it's part of nature. A: Exactly, which I think --- Q626: And we're demonising it, which I completely understand your point of view. A: Yep. Q627: But we're fixated on that point of view --- A: I know, because --- Q628: --- and that's what we --- A: --- you view it as something that's naughty, you know. Q629 Exactly right. A: And it's not. Q630: Exactly right. A: You know, it's not, it's, the compounds that are within that plant are life saving."
6. Later (at A 636), the Accused said that it (a reference to the qualities of cannabis) had 'sound medical backing to know that this is a substance, it is a preparation, it is a compound that can bring relief to enormous amounts of people, which the Government grows." The Accused was critical of Government for making it available to people; for being hypocritical and divisive, between the "haves and the have nots". What divided both groups was that one had a license (A 640-644). He also contrasted medications (which carried side effects) with the cannabis plant which eliminated sickness and provided sufferers with freely available relief occurring in nature.

Dr Dayalan's evidence

1. In compliance with its obligation, against a self-represented accused in a special hearing, the Crown adduced evidence from Dr Dayalan, a forensic psychiatrist. Dr Dayalan had previously prepared reports for the Accused in April 2022 and June 2023 concerning earlier fitness enquiries into the Accused.
2. Dr Dayalan is currently employed as a Senior Staff Specialist Psychiatrist at the Forensic Hospital, Malabar. He has a Masters in Forensic Mental Health from the University of New South Wales and is a member of the Royal College of Psychiatrists, UK (2005). He is also an Accredited Assessor of the Royal Australian and New Zealand College of Psychiatry.
3. Dr Dayalan's evidence in this special hearing was in the form of a written report dated 11 October 2024 (Exhibit G). The purpose of the seeking of Dr Dayalan's evidence was in anticipation of a potentially available defence to the Accused, being that at the time of the alleged act constituting the offence, the Accused had a mental health impairment; that defence being potentially available under s 28 of the DMT Act.

The Accused's access to Dr Dayalan's report

1. Before turning to the content of that opinion, I note that there was a brief issue in the hearing as to whether Dr Dayalan's report should be released to the Accused (T 44-50). That was plainly the Court's preference, however, Mr Bashir El Kheir (who authored the letter of instruction to Dr Dayalan), a solicitor of the ODPP, gave an account of Dr Dayalan's opinion, which was expressed to Mr El Kheir through an email on 11 October 2024, that the Accused was likely to get very frustrated and anxious if he did not access to it whilst defending himself. Thus, although the psychiatrist anticipated that allowing the Accused access to the report could give rise to his misinterpreting it and thereby cause the Accused stress and resentment towards him, Dr Dayalan believed, on balance, that he should have access to it (absent alternative options, such as a health care provider explaining its content to him).
2. The Accused himself, having heard that evidence (and without contesting the correctness of that opinion) elected to have access to the report. The hearing was adjourned to enable him to read the report. When given the opportunity, the Accused said he did not wish to have Dr Dayalan made available for cross-examination on the report.
3. Dr Dayalan's report was thorough and canvassed a range of different issues. Materially, it featured the Accused's account of the alleged offence (paragraphs 15 - 21). Excerpts from that account were as follows: "15. As noted earlier, Mr Woof had not been on any psychiatric medication since 2006 until his arrest for the current charges. When asked about use of illicit drugs, Mr Woof remarked that as part of the rituals he consumed cactus plants. He added that the plant contained mescaline (hallucinogen). He claimed that consumption of cactus allowed him to communicate with spirits and "sequester evil energy from the area and people". After sequestering the evil energy, he had to store the energy in sculptures/stone objects. The cultivated cannabis plants acted "as a medium between myself and the stone". He explained that the cannabis plant transformed the energy into a form that can be stored in the stone object. The stone apparently served "as a battery" and when transported to different areas, "released healing energy". He emphasised that all his endeavours were to heal the world. 16. When asked if he had consumed cannabis, Mr Woof reported to have blended the cannabis leaves into a "juice/smoothie" and drank it "to bring about homeostasis in the body and cleanse the soul". He said that the cannabis plants are known as "benefactors or teaching plants". He claimed that the effect of drinking cannabis leaves was very different to the effect of smoking cannabis. He denied ever having sold the cannabis plant. 17. Mr Woof continued to talk about "shamanistic practices" and was quite difficult to follow. When asked how he gathered all this information, he declared that his knowledge was "intuitive and cannot be read". 18. Mr Woof repeated that he had a project to complete and from the interview, it was deduced that his project involved sequestering evil energy and storing it in stone objects using cannabis as a medium for the transfer of the energy. He was asked if he received any communication in regard to his project. He described that the communication "not audible but a thought downloader". He remarked that the communication with spirits was "a feeling". He continued "we are trying to heal the world of these evil spirits". … 21. When asked why he had called the police, Mr Woof said "The project was complete and it is the practice that we need to refer to the relevant authorities to clean up once it was complete". He explained that he would not want the public to gain access to the project as it was "highly volatile". He remarked that he was "too close to the project" to destroy it himself."
4. Dr Dayalan also referred to earlier psychiatric diagnoses, which he summarised as being "characterised by delusional beliefs and thought disorder". He had diagnosed the Accused with schizophrenia as per the criteria in the DSM Version 5; as well as a cannabis use disorder apparently in remission.
5. With the assistance of a report of how the police regarded him at the point of his arrest, Dr Dayalan inferred that the Accused had presented with delusional beliefs and thought disorder on that day. With reference also to a letter written by a psychiatrist who saw the Accused on the date of his arrest, ambulance records and a mental health assessment form, Dr Dayalan also noted that the Accused was assessed as being acutely psychotic; symptoms which were consistent with a diagnosis of schizophrenia. Dr Dayalan concluded that around the time of the offences, the Accused suffered from a mental health impairment (paragraph 47).
6. Dr Dayalan went on to reason that the Accused had been suffering from several delusional beliefs and impaired reasoning around the time. He noted his own assessment of the Accused in which the Accused had reported to him that he was a member of an 'Order' that required him to 'sequester evil energy and store it in stone objects, using cannabis plant as a medium for the transfer of energy'. Based on what the Accused told him, Dr Dayalan noted that the Accused continued to believe that he had not done anything wrong as he had continued to carry out his 'responsibilities' from being a member of the said Order. Dr Dayalan found a direct connection between the Accused's offending actions and his delusional beliefs (paragraph 48).
7. That being so, Dr Dayalan's opinion (paragraph 49) was that: "Mr Woof's ability to reason the moral wrongfulness of his actions with a moderate degree of sense was impaired by the delusional beliefs associated with his mental health impairment. On a balance of probabilities, Mr Woof could avail the defence of mental health impairment".
8. I note for completeness that before she closed the Crown case, Ms Crown offered to the Accused the opportunity to call further witnesses if he sought them, but the Accused declined that offer (T 37.31).

The accused's defence

1. In his Opening Address in the special hearing, the Accused said: "As an artist, my utilisation of materials isn't confined to what would be considered something that would appear in a gallery. I utilise materials from all walks of life to tell a metaphorical story. Cannabis presented an interesting challenge for me, and it was one that told the story of the scapegoat, and its marginalisation in society more than any other medium really could've. So it was chosen for that purpose."
2. He added that the seeds were 'simply scattered in a way that was to serve one purpose and one purpose only, which was to be present in that particular work which is called, "The Secret and Sacred Song sewn into the Broken Heart of the World". The cannabis seed was a 'metaphor for sewing (sic) that unconditional love back into the world'.
3. The Accused disputed the amount, which I took to be a reference to the quantity of cannabis plants.

Election not to give evidence

1. At the conclusion of the Crown case, the Accused elected not to give or call evidence in his case.
2. I remind myself that the Crown bears the onus of satisfying you beyond reasonable doubt that the Accused is guilty of the offence charged.
3. The Accused bears no onus of proof in respect of any fact that is in dispute. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. He is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged. Therefore, it follows that the Accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.
4. The Accused's decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. I cannot use that decision as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the Accused decided not to give or call evidence. I cannot use that fact to fill any gaps that I think might exist in the evidence tendered by the Crown. His decision not to give or call evidence cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
5. I must not speculate about what might have been said in evidence if the Accused had given evidence or what might have been said by any other person if that person had been called by the Accused as a witness in the hearing.
6. This conventional direction in a criminal trial applies all the more forcefully to the situation of a defendant representing himself at a special hearing.

Crown submissions

1. Ms Crown submitted that the Court should find that each of the essential elements of the offence were proven beyond reasonable doubt.
2. There was no dispute that the Accused was engaged in the act of cultivating cannabis plants. He was the occupier of the Northmead premises and the photographs obtained from the real estate agent indicated a clear comparison between the condition of the premises a year before his arrest (with no apparent cannabis plants) with the condition of the premises at the time of the walkthrough through the premises (with an abundance of cannabis plants and accoutrements of cultivation of plants). He told the interviewing police in his ERISP that he had been cultivating the plants for a year. He freely accepted that the plants were cannabis plants. He admitted providing cannabis seeds to feed birds, rats, possums and even himself. He told police that he was in the process of seeding.
3. As to the quantity, it was unnecessary for the Crown to put a precise number on the cannabis plants. But the Crown relied upon the certificate of analysis by SC Shearley (Exhibit A, tab 4) as "prima facie evidence of the identity of the plant or substance analysed, the quantity or mass of the plant or substance analysed and of the result of the analysis". (The certificate, on its face, indicated that SC Shearley was an 'appointed person' under s 43(5) of the DMT Act).
4. There is no dispute that the number of 1,654 plants exceeded the large commercial quantity for that prohibited plant.
5. Further, additional reinforcement to this evidence was given by the circumstance that there was no challenge to SC Shearley's evidence; nor, for that matter, the evidence of Plain Clothes Constable McCartney, who currently is an appointed person under the DMT Act; and qualified to opine on the identification of cannabis plants. As indicated, the Crown organised for her attendance in lieu of SC Shearley, for the primary purpose of enabling the Accused to challenge the Crown evidence identifying the type and quantity of prohibited plant. The Accused did not challenge the evidence.
6. As to the last of the elements for the offence, and in addition to the evidence to support the earlier elements of the offence, the Crown emphasised the photographic evidence regarding the abundance of cannabis plant on the premises, viewed in the context of what the premises had looked like a year before his arrest. Further whatever lack of sophistication there may have been in the Accused's operation, it was clear that the Accused was bent on cultivation. He was, so it was insinuated, a fervent believer in the qualities and uses of cannabis seed; in the former sense, verging on spiritual belief about the benefits of cannabis; certainly in comparison with ordinary medications which the Accused plainly thought gave rise to corruption. In all of this, if the Accused did not believe or know that he had cultivated plants to exceed a large commercial quantity, it should be found that he knew that there was a real chance that they did.
7. Having submitted that the essential elements of the charge were proven, Ms Crown then addressed the potential defence of mental impairment.
8. After referring to Dr Dayalan's opinion, Ms Crown submitted that the Accused knew of the nature and quality of his act; even if he showed a lack of insight.
9. Ms Crown did not argue against a finding that the defence of mental health impairment being open.

The Accused

1. The Accused declined the opportunity to make submissions.

Defence of mental health impairment

1. In the event that I find that the Crown has established the first and second essential elements of the charge beyond reasonable doubt, that the Accused committed the physical act that constitutes the offence, namely cultivating an amount of prohibited plants (cannabis plants) not less than the large commercial quantity, I must then decide whether it has been established that a special verdict of "act proven but not criminally responsible" should be returned. Whether or not the mental element of the offence that I have described, namely an intention to cultivate a number of prohibited (cannabis) plants in excess of a large commercial quantity for that particular plan has been proved is irrelevant for the moment. The return of the special verdict does not depend upon that mental element having been proven.
2. If I am satisfied the Accused committed the act of cultivating cannabis plants in excess of the large commercial quantity the question then is did he have a mental health impairment which had the effect that he 1. did not know the nature and quality of the act, or 2. did not know that the act was wrong [3] .
3. If either effect has been proved, I would return the "special verdict" which is "act proven but not criminally responsible".
4. There are some important matters concerning this 'impairment' issue which need to be acknowledged.
5. First, unless there is some evidence to the contrary, the law presumes that an accused did not have a mental health impairment that had one of the effects upon him that I have mentioned [4] .
6. Second, I am concerned with the mental health of the Accused at the time of committing the act that constitutes the offence. There is evidence of the state of his mental health before and after but it is only relevant to the extent to which it assists in a determination of what the Accused's mental health condition was at the time of committing that act.
7. The third matter is that proof of this impairment issue is necessary only to the standard of the balance of probabilities [5] . That stands in contrast to the requirement that the Crown prove the guilt of the Accused to the standard of beyond reasonable doubt.
8. I will now refer to the elements of the impairment issue itself. As I have said, it involves two matters: whether the Accused had a mental health impairment at the time of carrying out the act constituting the offence and if so, whether this impairment had a certain effect upon the Accused.

Mental health impairment

1. A person has a mental health impairment if each of the following three matters have been proved: 1. the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory; and 2. the disturbance would be regarded as significant for clinical diagnostic purposes; and 3. the disturbance impairs the emotional wellbeing, judgment or behaviour of the person [6] .

The effect of the impairment upon the Accused

1. If I am satisfied that the Accused had a mental health impairment at the time of carrying out the act constituting the offence, it is also necessary that this impairment had one or the other of the following effects: 1. the Accused did not know the nature and quality of the act, or 2. the Accused did not know that the act was wrong (that is, the Accused could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
2. As to the first of those matters, a person does not know the nature and quality of an act if they do not know of the physical nature of what they are doing, or do not know of the implications of doing that act.
3. The second matter [7] is not concerned with whether or not the Accused knew that the act was wrong in the sense of being something that was contrary to the law and punishable as a consequence. It is concerned with whether the Accused was able to understand the difference between right and wrong as ordinary reasonable people are able to understand. This second matter will have been established if I am satisfied that the Accused could not reason, with a moderate degree of sense and composure, about whether the act was wrong.
4. Neither party addressed the Court on the first suggested 'effect' of the posited mental health impairment. It is the second suggested effect which is in issue.

Standard of proof

1. As indicated, I have to decide on "the balance of probabilities" whether the Accused had a mental health impairment that had a certain effect upon him as I have described. That means I have to decide this issue on the basis of what is more probable than not. This is a different standard or level of proof than beyond reasonable doubt which applies to what the Crown must prove in order to establish that the Accused is guilty of the offence charged. The issue I am concerned with here is whether the Accused had a mental health impairment which had the effect that the Accused could not reason with a moderate degree of sense and composure about whether the act was wrong. It is only necessary for me to be satisfied that it is more probable that he did than that he did not. It does not matter how slightly it might be more probable, only that it is more probable by some degree.

Special verdict

1. If I am satisfied on the balance of probabilities that at the time the Accused carried out the act of cultivating cannabis plants exceeding a large commercial quantity he had a mental health impairment that had the effect upon him as described, then I must return the "special verdict" which is "act proven but not criminally responsible" [8] .

Explanation of the effect of the special verdict

1. By reason of s 29 of the Act, I am obliged to indicate what happens if I return the special verdict.
2. If my verdict is "not guilty", the Accused walks from the court a free person and the criminal process comes to an end. If my verdict is "guilty", the court will determine the appropriate penalty to impose upon the Accused.
3. However, if I return the special verdict of "act proven but not criminally responsible", neither of those things happens. Instead, the law provides for a process of review, to determine whether the Accused poses a risk to him or to others, and whether he should be released into the community or detained and treated.
4. If I am satisfied that the safety of the Accused and members of the community will not be seriously endangered by the Accused's release into the community, he can be released, either unconditionally, or with conditions, such as a requirement that the Accused accept medical treatment, or live at a particular place. If the court concludes that it is not appropriate to release the Accused into the community at present, the court can order his detention until it is safe to release him. Detention can be in a prison, or a secure hospital or some similar facility, and it would continue until the Mental Health Review Tribunal decided that the Accused could be released.
5. The Mental Health Review Tribunal is a special body with expertise in this area. It has Members rather than judges, but the Members of the Tribunal are all people with special qualifications and expertise. They include judges or senior lawyers, but also medical and other professionals, such as psychologists and psychiatrists.
6. The Tribunal will review the Accused's situation regularly and will not order the release of the Accused until it is satisfied the safety of the Accused or any member of the public would not be seriously endangered. Until that time, the Accused would be held in a secure place, where medical treatment can be provided.
7. Indicating what will happen if the result is a special verdict that the Accused is not criminally responsible should not lead me to decide the case based upon what I think is the best outcome for the Accused or the community. I must return a verdict based only upon the evidence placed before me.

Upon determination of the impairment issue

1. I will be satisfied that the special verdict should be returned if I am satisfied on the balance of probabilities that at the time of carrying out the act of cultivation of cannabis plants in excess of a large commercial quantity of that particular plant, the Accused had a mental health impairment which had the effect that the Accused did not know that the act was wrong.
2. In that case, provided I am satisfied beyond reasonable doubt that the Accused carried out that act my verdict will be: "act proven but not criminally responsible".
3. If I am not satisfied on the balance of probabilities that this special verdict should be returned, then I must consider whether the Crown has proved the guilt of the Accused by proving beyond reasonable doubt each of the essential elements of the offence.

Is the 'act' [9] proven beyond reasonable doubt?

1. I accept, beyond reasonable doubt, the Crown's submissions in relation to first and second elements of the charged offence.
2. As to the first of the essential elements, the Accused admitted engaging in acts which satisfy the statutory definition of 'cultivating' cannabis plants, which in turn satisfies the definition of 'prohibited plants' (cultivated by means other than 'enhanced indoor means').
3. As to the second of the essential elements, I accept the uncontradicted certificate analysis of SC Brearley. There was no evidence to displace that 'prima facie evidence'. To the contrary, (and although this is also relevant to the third essential element) when one of the police officers in the ERISP indicated to the Accused that the number of plants was 'around the 1600 mark', the Accused expressed surprise conveying that he thought that there would have been more; in effect his belief that this number was an under-estimate.

Is the defence of mental health impairment available?

Mental health impairment

1. I am comfortably satisfied that the Accused has a mental impairment for the purposes of s 4(1) of the Act. That finding is based upon Dr Dayalan's opinion, with particular reference to the Accused's psychiatric history which, relevantly, stretched back to his admission to Rozelle Hospital in 2005-6 (which the Accused attributed to his initiation into an 'Order') for psychotic/mood symptoms and prescription for anti-psychotic medications and a subsequent diagnosis of schizophrenia.
2. By his most recent report, Dr Dayalan has affirmed the currency of that disorder.
3. I am also comfortably satisfied that at the time of carrying out the 'act' (ie the series of acts) of cultivating no less than a large commercial quantity of cannabis plants, the Accused had a mental health impairment. I place substantial weight upon Dr Dayalan's opinion (paragraphs 47-48) in that regard and the psychiatrist's expressed reasoning for it; including his presentation upon psychiatric admission after the police's involvement on 11 October 2021.

Effect of the mental health impairment

1. As to the second question, the position was not quite so clear. Viewing the Accused's presentation and content of his answers to questions raised of him in his ERISP in isolation, I formed the view that the Accused did understand how police (and others) might view his conduct as wrongful; but because of his alternative 'perspective' - which appeared to that he had some kind of artistic licence to use cannabis for (in his mind) the innocent purpose of creating a sculpture for the benefit of himself and others - he did not see it as wrongful itself. In other words, the content of his ERISP indicated that he made a moral choice to engage in actions that he appreciated that others might view differently, as being wrongful.
2. However, as the Crown correctly emphasised, care needs to be exercised not to give disproportionate weight to the evidence that the Accused gave in the ERISP interview as that interview occurred 11 days after the offending, by which period he had been treated and medicated, and was lucid.
3. The issue, however, is not wrongfulness viewed in retrospect, but wrongfulness at the time of the offending. More reliable indicia of his state of mind as to the 'wrongfulness' of his actions was the 000 call, the records from the NSW ambulance service (both being 11 October 2021), Mental Health Assessment Form on 13 October 2021, and his conduct in creating the ensemble or sculpture presented to the police on 11 October 2021 and inferences that arise from the layout and extent to which cannabis plants were otherwise displayed around his property.
4. Reading Dr Dayalan's opinion (especially at paragraphs 48-49) and taking into account the matters referred to in paragraph 119 of his report, at the time of the acts constituting the offending, I find, on the probabilities, that the Accused did not reason, with a moderate degree of sense and composure, about whether his series of acts was wrong. I find that he was deluded in his thinking that he had 'created' a new world through the ensemble structure he had created featuring a boulder and using cannabis as a component part of it. This, he equated, to a 'bomb'. The completion of the bomb and the layout and acts of cultivation of the cannabis plants around his home was no recent event. With reference to what Dr Dayalan stated (at paragraph 15 and following), I find that the Accused had built up, at least over a year, his sculpture to 'sequester evil energy from the area and people' and that '(a)fter sequestering the evil energy, he had to store the energy in sculptures/stone objects'. His motive was to heal the worlds from evil spirits. It was at the date of his alleged offending that he had completed his project involving the sequestration of evil energy and storing it in stone objects with the cannabis being used as the medium for the transfer of the energy.
5. Having completed his project on 11 October 2021, he was giddy with excitement; so much so that he was impelled to ring the 000 line to give the 000 operator the 'heads up' that a bomb was "ready to go off". He could not conceive what reasonable people would take for granted, that mention of the expression 'a bomb .. likely to go off' to a 000 operator was apt to inspire panic and alarm at the other end of the line and, further, that speaking to a 000 operator was manifestly not the occasion to engage in artistic metaphor.
6. It was not just the content of the words spoken. The walkthrough and photographs depicted on the date of the offending, featuring the nourishing of cannabis plants, signage at different places in the backyard of the residence amply demonstrated Dr Dayalan's conclusion of the Accused having grandiose delusions.
7. I am satisfied that the presumption in s 28(3) is rebutted. At the time he carrying out the series of acts, in cultivation of what was in excess of a large commercial quantity, the Accused did not know that they wrong. The defence in s 28(1)(b) is established on the probabilities.
8. This conclusion obviates any requirement for me to consider whether the Crown would have established the third essential element of the charge beyond reasonable doubt.

VERDICT

1. I return the following verdict: Count 1: special verdict of act proven but not criminally responsible

Endnotes

1. R v CWW (1993) 32 NSWLR 348 ("CWW") per Sheller JA (Smart J and Allen J agreeing) at 355C-E; followed in R v Busby [2018] NSWCCA 136 at [41]
2. CWW at 355E
3. s 28(1) of the Act
4. s 28(3) of the Act
5. s 28(2) of the Act
6. s 4 of the Act
7. s 28(1)(b) of the Act
8. s 30 of the Act
9. By s 28(4) of the Act, 'act' includes a series of acts or omissions 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: 17 October 2024