R v Zahab

Agreed Facts 8The Crown and the accused agreed on all of the relevant facts surrounding the death in February 2013. The Statement of Agreed Facts was tendered to the Court. What follows is drawn from that statement. Although I am not bound by that statement, I am satisfied that I should make findings in accordance with them.

The Initial Scene 9As at February 2013, the accused, who was then 42 years old, was living at 17 Belar Avenue, Villawood. His parents, and a nephew, lived at 140 Stacey Street, Bankstown. His younger brother, Osman Zahab, and Osman's wife lived next door at 140A Stacey Street, Bankstown, along with their children. 10On 14 February 2013, Osman Zahab called 000 on his mobile phone. He told the operator "...I got a paranoid schizophrenic that's just attacked my parents". He identified that person as "my older brother...Khoder". The incident was broadcast over police radio. 11Police arrived at the accused's parents' house in Bankstown. On entering the house, the police located the body of Mohammad Zahab ("the deceased") at the bottom of the staircase, and observed that his head had been completely removed from the body. 12The accused was seen to be standing on the third step of the staircase, holding a knife. The police drew their weapons and ordered the accused to drop the knife. The accused dropped the knife. 13There was a physical altercation between the accused and a police constable, following which the accused was handcuffed and advised that he was under arrest. 14The accused was taken to Bankstown Police Station and placed into custody.

Events in the days leading up to the Killing 15At the time of the killing in February 2013, the accused was in receipt of a Disability Pension from Centrelink due to mental health issues. 16He had been a patient of Bankstown Community Mental Health for a number of years, where he had been previously diagnosed with schizophrenia. 17Mr Osman Zahab, the accused's younger brother, told police that approximately two years prior to February 2013: "...Khoder begun making accusations that I had robbed him and kidnapped his ex girlfriend. Khoder was admitted to Banks House Mental Hospital. He stayed at Banks House for about two weeks." 18At the time of the killing, the accused was on bail for an offence which occurred in January 2012, in breach of s 86 of the Crimes Act 1900, namely that he had detained a woman, without consent, with intent to obtain an advantage, namely information, and at the time of detaining the woman, actual bodily harm was occasioned to her. 19This matter was finalised in the District Court on 25 September 2013, approximately seven months after the killing of the deceased. The verdict of the trial judge, Huggett DCJ, was "Not Guilty on the Grounds of Mental Illness". 20The accused's mother, and wife of the deceased, Mrs Malaka Zahab, told police that around one month prior to the killing, the accused "started getting crazier". She asked him whether he was taking his medication to which he replied, "Why would I need to take medication. I'm fine". Mrs Zahab suspected from this that the accused was not taking his medication. 21Mrs Zahab also told police that approximately one week before the killing, she noticed the accused "was acting strangely". The accused had told her that he wanted to take a shower at her house, "because it reminded him of his childhood." 22Around three weeks before the killing, according to what Mr Osman Zahab told the police, the accused: "started hallucinating again...[and] started to accuse people of doing things which they have not done" 23This included an accusation that Osman Zahab was "trying to set [the accused] up to kill him." 24Osman Zahab also told police that: "A week or so [before the incident] he accused 7/11 Service Station staff of stealing $300.00 from him...[He] came over to my house and we had some dinner ...He started swearing and screaming for no reason...he started to push me and we had a bit of a push and shove. Khoder then pulled a knife on me. He said something about 'I'll kill you, it was all you'. He wasn't making any sense. I walked over to him and I told him if he was going to use the knife, use it. He continued to yell and scream and then he put it away. About five minutes after this, he started asking me to forgive him." 25On 12 February 2013, two days before the killing, the accused arrived at Osman Zahab's smash repair business and said he had been driving up and down Parramatta Road trying to buy a car. He said something had happened to his car, he wanted to buy a car with an alarm, and told Osman to take him to rent a car. Osman drove the accused to four car rental places, however they were all closed, so he took the accused to their parent's house. 26At around 4.40pm on 13 February 2013, the day before the killing, the accused attended Hertz Car Rentals on Canterbury Road, Bankstown claiming to have a booking for a rental car. The manager, Mr Ong Imtongkome, was unable to find a booking in the system and asked the accused who the booking had been made by. The accused replied: "my wife made a booking for me." 27Twice the accused presented an ATM card to the Manager after being told a credit card was required. The accused approached the counter and asked for a glass of water, with which he was provided. He continued to ask for numerous glasses of water after that. He also commenced opening and closing the door for customers. 28The Manager told police that the accused then approached the counter and said: "You have my licence details. You have a photocopy of my licence...I know how you guys work. I know you're going to pass this information to the police and the police will chase me up. Don't treat me like a dog. I know you did a photocopy." 29The accused started speaking about religion, God and "out of the blue said the word 'murder' ". 30The accused then went into the caryard to where a car was being cleaned. He placed his backpack in the front passenger seat of the car and said, "I want this car". An exchange along the following lines then occurred: Accused: "where is the key to the ute?" Manager: "what ute are you talking about mate? We don't have any utes here" Accused: "my wife made a booking for me, so I want the car" Manager: "when did you speak to your wife?" Accused: "I spoke to her three years ago" 31Another staff member arranged for the police to attend. However, as they had not arrived by 5.30pm, the Manager closed the premises and left.

Detailed Account of the Evening before, and morning of the Killing 32At some point prior to 9.30pm on the evening of 13 February 2013, the accused arrived at his parents' house. 33During the evening, the accused kissed his mother's hands and feet and said, "Mother I love you. I want you to love me." 34The accused's father was eating at the dining table. The accused was invited to eat. Mrs Zahab told police she observed the accused pick up his plate, sit down, have a bite of food, then stand up and move to a different seat. He did this several times. 35Mrs Zahab asked the accused if he had taken his medication, but he did not respond. 36Later that evening, the accused went to the downstairs bathroom to have a shower. Mrs Zahab noticed the bathroom light was off and offered to turn the light on, which the accused declined. He wanted the light off while he was showering. The accused asked his mother where the tap was. She turned the tap on and the accused screamed, "... they keep turning the water off". When his mother asked to whom he was referring, the accused replied: "... they do. They keep turning the water off." 37Later that evening, because the accused wanted to sleep at his parents' house, Mrs Zahab offered him a mattress in the bedroom being used by his nephew, the grandson of Mrs Zahab and the deceased, Mr Bilal Haddad. As Mrs Zahab turned the bedroom lights off, she noticed the accused's "eyes change". She told police his eyes "looked as though they were popping out of his head". 38In a statement given to the police, Bilal Haddad said that he and the accused decided to have "a smoke" of cannabis in his room during the early hours of 14 February 2013. Bilal Haddad told police that the accused had lit a candle, held it in his hand and started to dance around. Bilal told the accused "not to be too loud" as he did not want to be caught by his grandparents with cannabis in his room. 39At approximately 4am on 14 February 2013, Mrs Zahab woke to loud noises and banging. She went to the bedroom where the accused and Bilal were and saw the accused holding a candle in both hands, jumping up and down, and pointing to things saying "You're the devil. You're the devil". She also saw Bilal lying in bed, laughing. Mrs Zahab believed that Bilal "was pretending to laugh to keep Khoder happy". The accused looked at his mother, said, "You're the devil" and slammed the bedroom door in her face. 40Mrs Zahab then performed her morning ablutions and prayers, during which she noticed the noises grow louder. At around 5am, she observed the accused jumping up and down yelling, "You're the devil. You're the devil". She went to her room and heard the door being locked from outside and the accused continuing to yell, "You're the devil. You're the devil". 41At approximately 5.30am, Mrs Zahab left her bedroom to go downstairs. She saw the accused in the upstairs hallway with a candle in one hand and Bilal Haddad's running shoes in the other, saying "devil, devil, devil". 42Mrs Zahab walked to the first landing on the staircase. The accused followed her. As she went to take the first step down the next flight of stairs, she felt a push in her back and heard the accused saying "devil, devil, devil." 43Mrs Zahab fell down the stairs, put her hands out, hit the floor, slid forward and hit her head on the door to the toilet. She told police that after her fall she felt dizzy and her head was spinning, however she quickly stood up, as she was afraid the accused was going to kill her. By this time the accused had come down the stairs. He punched Mrs Zahab in the face in between her eyes. 44Mrs Zahab was later taken to Bankstown Hospital and treated. She suffered bruising to her left arm and wrist, bruising to her nose, soreness to her back and right leg, and pain in her neck. The accused was charged in relation to that assault. The charge was placed on a s 166 Certificate when the murder charge was committed to this Court. 45Bilal Haddad, having seen the accused punch Mrs Zahab, went to the bedroom of his grandfather, the deceased. He woke the deceased and told him what the accused had done. Mrs Zahab told police that the deceased came down the stairs saying to the accused, "What are you doing? That's your mum", to which the accused replied, "No, no, she's a devil. She's a devil." 46Mrs Zahab then saw the accused pick up a brick wrapped in plastic, which was being used as a doorstop for the front door, and bash the deceased on the side of the head twice while repeatedly saying; "You're the devil. You're the devil." 47The deceased fell to the ground. Mrs Zahab attempted to calm the accused down by saying prayers. The accused then: "... bent down and bashed [the deceased] in the head one more time as he lay on the ground. [The deceased] yelled 'your son killed me. Your son killed me. I am dead'" 48The accused ran to the kitchen and searched through drawers. 49Mrs Zahab exited her house and ran next door to her son, Osman Zahab's house. She banged on the back door and told Osman: "Your brother's gone crazy. He has killed your father. Call the police" 50Bilal Haddad, having also seen the accused assault the deceased, climbed onto Osman's balcony and told Osman what he had seen. 51It was at this point in time that Osman Zahab called 000 on his mobile phone and spoke with the operator. I have earlier set out the terms of this conversation. 52Osman went to the back door of his parent's house, opened the door and saw the accused: "...on his knees. He was squatting over something. I heard him saying what we say when we are about to slaughter a cow or a chicken to make it halal. He said it twice." 53The accused then approached Osman with a knife in one hand and what appeared to be a head in the other hand. The accused told Osman to "get out of here" and started to yell in Arabic. Osman told police he was unsure what the accused said. 54When police arrived at the scene the accused was observed to be standing on the third step of the staircase, holding a knife. The police drew their weapons and ordered the accused to drop the knife. The accused dropped the knife. It landed at the bottom of the staircase near the body of the deceased. The police observed that the accused was holding clothing in both hands. The accused was ordered to drop the clothing. 55Constable Howe moved up the stairs towards the accused. The accused grabbed a chair and threw it down the staircase. Constable Howe stepped back to avoid being hit and then continued further up the stairs. 56The accused started yelling. Constable Howe grabbed the accused by the shoulders. The accused grabbed Constable Howe by his police vest and the front of his neck. Constable Howe stated that he took the accused "to the ground and began a ground wrestle with him." 57The accused was charged in relation to this assault. The charge was placed on a s 166 Certificate when the charge of murder was committed to this Court for trial. 58Two other police officers, Constable Bye and Leading Senior Constable Toner helped Constable Howe. The accused was handcuffed by a fourth police officer, Constable Conaghan, and advised that he was under arrest. 59The accused was then transported to Bankstown Police Station.

Interactions with the Accused at the Bankstown Police Station 60At Bankstown Police Station, the accused was cautioned and again advised that he was under arrest by Detective Senior Constable Troy Smith. 61Detective Smith asked the accused why he had scratches on his face, to which the accused replied: "They drugged me and raped me, they drugged me with heroin in the day and Ice in the night." 62The Custody Manager at Bankstown Police Station, Sergeant Brooke Smith, requested an Arabic Interpreter for the accused. Sergent Smith also suggested that a Support Person be present if the accused was to be interviewed, and made arrangements through the Bankstown Mental Health Crisis Team for a support person to attend the Police Station. 63Detective Senior Constable Dodd was also present at the Police Station and observed the accused. He has stated that he saw the accused lying on his back, singing and laughing. The accused told Detective Dodd: "I didn't kill my father, I killed a pig, it was just a pig. He's not of my blood anyway." 64The accused also accused police of bashing and assaulting him. There was no basis for any such accusation. 65Based upon his observations, Detective Dodd advised Sergent Smith that police would not interview the accused until he had been assessed by a mental health service and had a support person present. 66Dr Sidney Oden, Mr Andrew Whalan and Mr Barney Eadet from the Bankstown Community Mental Health Crisis Team, and an Arabic interpreter attended the Police Station. 67In conversation with Detective Dodd, Dr Oden said this of the accused: "...on the balance of probabilities...[he] is not in touch with reality at present and stated he thinks there is a conspiracy against him and that he is a pawn, like a tennis ball, being hit back and forth. He is not acknowledging and comprehending what is happening...He told me he has not taken his meds for about 18 months." 68Dr Oden advised police that the accused was on the "severe end of psychosis" and in his opinion, "...should be hospitalised immediately where he would be medicated straight away" 69He also informed the police that, in that event, the accused would likely be able to be interviewed "in a few days" though; "...it could take longer, depending on how long he had been off his medication." 70Based on these opinions, Detective Dodd decided to wait until the accused had been medicated for a period of time before interviewing him. Forensic procedures were carried out on the accused by a doctor and in the presence of Mr Eadet (the support person) and Detectives Dodd and Smith.

Post-mortem Examination of Deceased 71A post-mortem examination was undertaken by Dr Rebecca Irvine, a specialist pathologist, on 15 February 2013. Dr Irvine, who had also visited the scene, formed the opinion that death was occasioned by the combined effects of blunt force injuries to the head, chopping wounds to the head and stabbing wounds to the chest. 72She also noted that either shortly before, or else soon after, death the head of the deceased had been decapitated. A 12.4cm long knife blade tip was recovered from the soft tissue on the left side of the neck of the deceased. 73Dr Irvine observed that the stab wounds to the chest had injured critical vessels, including the left pulmonary artery and the aorta. She also observed the near amputation of the right fourth finger by sharp force, which she thought was very likely to be a defensive wound. 74In short, the injuries were many, and indicative of significant force, uncontrolled rage, and homicidal intent. The decapitation was particularly violent, and gruesome.

Factual Conclusions 75From all of the Agreed Facts, I am satisfied, beyond reasonable doubt that, on the morning of 14 February 2013, Mr Zahab, the accused, bashed and stabbed his father, the deceased, thereby causing his death. I am satisfied that he did so, intending to kill him. He then decapitated him. 76I am satisfied of his intent beyond reasonable doubt: first, because of the number, nature and extent of the injuries inflicted on the deceased; second, because of what Osman Zahab heard him saying when he saw the accused in his parents' house; and third, because of what he told police after the incident of having killed a pig. These three factors combine to make it plain that the killing occurred at a time when Mr Zahab was acting with the intention of killing his father. 77But for the defence of mental illness, to which it will be necessary to come, I am satisfied, beyond a reasonable doubt, that the Crown has proved all elements of the offence of murder. 78Indeed, counsel for Mr Zahab did not submit to the Court that such findings ought not be made, nor did he present any argument which cast any doubt on these being the appropriate findings.

Mr Zahab's History and Mental State 79The mental history and state of Mr Zahab was proved through the expert reports of Dr Olav Nielssen, a forensic psychiatrist, dated 24 July 2013, 30 August 2013 and 2 November 2013, and reports of Dr Bruce Westmore, also an expert forensic psychiatrist, dated 5 July 2013, 22 November 2012, 9 October 2012 and 14 September 2012. Both Dr Nielssen and Dr Westmore were called as witnesses, and gave their evidence concurrently. 80Dr Westmore examined Mr Zahab on 5 July 2013, and on two previous occasions, namely 13 September 2012 and 20 November 2012. Dr Nielssen examined Mr Zahab on 5 July 2013. There is no significant disagreement between each of the experts. 81I note that the occasions on which Dr Westmore examined the accused in 2012 were prior to the incident involving the deceased, and that the subsequent examinations of the accused by both Dr Westmore and Dr Nielssen were conducted prior to the Not Guilty verdict being entered in respect of the charge arising out of the incident in January 2012. 82The fact that the reports span a period of approximately 14 months provides the Court with a comprehensive psychiatric account of Mr Zahab prior to, and during, his period of incarceration for the killing in February 2013. 83I am satisfied that I should approach the histories provided to the psychiatrists, although principally admitted for the purpose of demonstrating their psychiatric opinions, as evidence of the truth of what the psychiatrists were told: s 60 Evidence Act 1995. 84Mr Zahab was born on 2 April 1970 in Lebanon. He was the third of seven children to his parents who were of Sunni Muslim heritage from Tripoli on the North Coast of Lebanon. His father, the deceased, was a carpenter and his mother did not work. His eldest sister worked in childcare, and the sisters immediately older and younger than him were married with children. His youngest sister worked at the local council and both his younger brothers were panel beaters and spray painters. One sister died of respiratory problems. 85Mr Zahab came to Australia at the age of five. He reported a difficult childhood. He was apparently severely punished by his father and bullied at school. He attended primary school in Revesby and then Bankstown Boy's High to the end of year ten, when he left school. He reported that he had wanted to complete high school, however he had to leave in order to work to help support his family. He said he enjoyed, and was good at, sports, in particular soccer and rugby league. 86After leaving school, he completed an apprenticeship as a boilermaker and welder at the Transfield Plant at Seven Hills, including the four years at TAFE, and was involved in several large scale metal fabrication projects, including building wheat silos, making portable bridges for the army and large scale metal fabrication for public buildings. In addition to his training as a boilermaker, he completed two years training as a panel beater and two years working with a plumber. 87He married in his early twenties to a woman of Anglo-Australian heritage and had two sons from that marriage, now aged 20 and 21. His eldest son is studying at a university on the Gold Coast and his younger son is a house painter. Mr Zahab lived on the Gold Coast for around 9 years during his early adult life. 88For the last 13 years, Mr Zahab has been in a relationship with another woman, the complainant in the January 2012 matter. 89Mr Zahab has a history of drug abuse. He began smoking cannabis in his mid twenties; at the same time he began smoking cigarettes. He smoked cannabis on and off, and reported that he was not aware of a direct relationship between his use of cannabis and symptoms of psychosis. 90As well, Mr Zahab has used other drugs, including methamphetamine on one occasion, cocaine, hallucinogenic trips and MDMA. He has not consumed alcohol since the age of 17. 91His main drug of abuse, however, has been heroin, which he used intermittently for nine years prior to the killing. This included periods of dependence on up to 2 grams of heroin per day, followed by distressing withdrawal symptoms when unable to obtain the drug. He commenced treatment with the anti-craving medication, Methadone. He had one period of long-term drug rehabilitation, beginning with a detoxification at the William Booth Institute and then some months at a dual diagnosis centre called Miracle Haven. 92Mr Zahab told Dr Nielssen that his only illegal drug use in the two years prior to being remanded in custody was cannabis. 93From at least 2001, Mr Zahab had been experiencing hallucinations and expressed bizarre persecutory beliefs. He was diagnosed with psychosis in 2001 and began treatment with the antipsychotic medication Risperidone. He had a number of psychiatric reviews and received treatment with the antipsychotic medication Olanzapine (Zyprexa) from 2003 to 2005. 94In June 2011, he was involuntarily admitted to Banks House. At that time it was noted that he had been known to Bankstown Mental Health since 2007, and was first diagnosed with schizophrenia in 1997. At the time of his admission he expressed persecutory beliefs regarding neighbours. 95He had a number of contacts with the Community Health Centre in November and December 2011, during which he was reported to be behaving strangely and expressing bizarre persecutory beliefs, for example, that people were getting into his house and that his Methadone had been poisoned. 96In 2012, he was seen intermittently, including by a psychiatrist. A referral dated 26 June 2012 noted: "making death threats to the community around him". 97Mr Zahab told Dr Neilssen and Dr Westmore that in the months before the killing of his father, he had become increasingly paranoid, believing he "could translate messages coming from the sounds made by cars" and that different emergency sirens "had different meanings". He said that he believed his thoughts could be picked up by radio "depending on the channel" and that he had smashed two television sets because he believed they were two-way mirrors monitoring his movements. He had also turned his television to the wall, unplugged it and covered it with a towel to stop it from observing him. He also said that particular colours, sounds and smells had patterns that could be translated into meaning. 98He told Dr Westmore he believed the cannabis he smoked was laced with Ice and heroin, he said: "They gave me the Ice to make me shattered during the day and at night they gave me the pot laced with Heroin to make me sleep, so they could control." 99When asked by Dr Nielssen who he thought was behind the conspiracies, he said this: "I didn't know...it was different voices...I sometimes see the shapes of gnomes and dwarfs and also animals...I felt everybody was a clone...as I walked along the street I thought that people were being chained up inside and were made into sex slaves...I thought people were slaughtering people...I heard screams as I walked down the street." 100Dr Westmore stated that: "Leading up to the homicide, a neighbour had contacted the health service expressing concerns about Mr Zahab's deteriorating behaviour. Family members describe Mr Zahab as behaving in a peculiar way and leading up to the homicide itself he reported calling his mother the devil. He indicated to me that he believed his parents had been cloned and that his father was a 'pig.' " 101On 15 February 2013, the day after the killing, he was examined in custody by a psychiatrist, Dr Roberts. Mr Zahab recorded feeling "excellent" and expressed the grandiose belief that he had "houses everywhere". Dr Roberts noted that during the interview, he shouted in Arabic in response to apparent hallucinations. Dr Roberts noted prominent paranoia, delusional beliefs and recorded that his speech was "unintelligible at times". He was referred to the Mental Health Screening Unit. 102An assessment by a trainee psychiatrist on 19 February 2013 noted that Mr Zahab had not been taking his medication, had been using drugs, and was "currently acutely psychotic with...hallucinations paranoid delusions and thought disorder". Further entries made in February 2013 noted the presence of disorganised thinking, inappropriate laughter as though in response to voices, persecutory and grandiose beliefs, and limited insight.

Expert Opinion 103When the accused was interviewed by Dr Westmore he gave this account of the killing of his father. He said: "I was believing that everyone was clones, my mother was the devil and that everyone was dead and buried on a property already ... as far as I was concerned, I was slaughtering a pig." 104Dr Westmore asked him directly why he had cut off the deceased's head, he said, "I believed he was a pig, I was delusional, hallucinating.". When asked by Dr Westmore how long he had thought his father was "a pig", he replied "nearly a year." 105He told Dr Westmore that he could not understand why he had killed his father, he said: "I don't understand, I ask myself every day, why and what for. It was like a nightmare. I just saw black and red and I was up in the police station. ... I'm sorry for everything that happened, it wasn't in my hands." 106He went on to state that he was mentally ill at the time he killed his father and that he wanted the court to acknowledge that. When asked whether he got on with his father he said; "Yes, I loved my father, even though he used to bash me a lot and mentally and physically abuse me, call me names, I'm a donkey, I'm no good." 107When interviewed by Dr Nielssen, he said he had no memory of actually assaulting his father, or why he might have decapitated him. However, he told Dr Nielssen that on the evening of the killing: "I thought my real family were dead and were buried under the house and the people who were there were clones. ... I felt strange...I just couldn't sit still...I changed my plate because I thought the food was poison...I thought that people were coming into the house to kill me...I felt too paranoid to turn on a light...I was looking out the window and I thought I could see pyramids like in the olden days." 108Dr Westmore, in his report of 5 July 2013, expressed the following expert opinion: "[Mr Zahab's] history describes multiple symptoms which are likely to be of psychotic origin, including delusional beliefs, ideas of reference and auditory hallucinations. He reports these symptoms have diminished since has been placed back onto medication. ... Based on his history, and supported quite strongly by collateral histories provided by family members, Mr Zahab was acutely psychotic at the time he killed his father. I understand from his history that his compliance with medication has been poor. He has a history of recurring episodes of psychosis with associated behavioural problems, including aggression. Leading up to the homicide, a neighbour had contacted the health service expressing concerns about Mr Zahab's deteriorating behaviour. Family members describe Mr Zahab behaving in a peculiar way and leading up to the homicide itself he reported calling his mother the devil. He indicated to me that he believed his parents had been cloned and that his father was a "pig". ... Mr Zahab's chronic paranoid schizophrenic illness is characterised by auditory hallucinations, delusional beliefs, ideas of reference, formal thought disorder and, possibly at times, a disturbance of mood. I note the concerns expressed by one police officer in relation to Mr Zahab possibly feigning symptoms of mental illness and I note the content of the statement provided by his nephew. Despite those concerns and observations, I maintain the view that Mr Zahab was acutely psychotic at the time of the homicide. Mr Zahab could raise a mental illness defence to the charge of murder. He was suffering from a disease of the mind (acute relapse of a paranoid schizophrenic illness) and that illness would have totally deprived him of knowing that he ought not do the act and that the act was wrong ... I am of the view that the mental illness defence is the correct defence, which should be raised in this particular case. Mr Zahab will require long term supervision in a secure psychiatric facility, he will require long term treatment by psychiatrists and treatment with medication." 109Dr Nielssen, in diagnosing Mr Zahab with chronic schizophrenia, expressed this opinion: "The diagnosis of chronic schizophrenia is made on the basis of the history of typical symptoms of the illness, including hallucinations of voices, thought broadcasting, ideas of reference from his surroundings and persecutory beliefs, a typical pattern of treatment, including involuntary admissions to a psychiatric hospital in the community, treatment as a condition of a Community Treatment Order and treatment with antipsychotic medication in prison, and aspects of Mr Zahab's presentation during the recent interview when he was thought to be blunted in his emotional range and to be rather literal in his response in a way that was typical of chronic schizophrenia. Based on the information that is available to me, I believe Mr Zahab has the defence of mental illness open to him...He has a disease of the brain in the form of chronic schizophrenia, which produces a pattern of abnormality of mind that is recognised in law to be a disease of the mind. His mental illness gave rise to a defect of reason in the form of bizarre persecutory beliefs...Mr Zahab reported that he did not remember the lethal assault of his father. However, the history elicited suggests that he was acutely mentally ill at the time and held a number of bizarre delusional beliefs, including that his family had been replaced by clones, and on the balance of probabilities he was deprived of the ability to recognise that his actions were morally wrong at the time as well. ... Mr Zahab requires indefinite secure treatment for mental illness and long term supervision to ensure that he remains abstinent from illegal drugs that might trigger a further episode of mental illness." " 110In a supplementary report dated 2 November 2013, Dr Nielssen, having reviewed various medical records and read a report of Dr Westmore, confirmed the diagnosis of chronic schizophrenia and the availability of the defence of mental illness. He said this: "A review of the medical records and other documents confirms both that Mr Zahab has a chronic schizophrenic illness that has been present since at least 2001, and also that he was acutely mentally ill at around the time of the offence... ... I confirm the opinion expressed in my previous report regarding the availability of the defence of mental illness to the charge of the murder of his father." 111Both experts adhered to their views in evidence. I accept the expert opinions of Dr Nielssen and Dr Westmore and their evidence. Neither party submitted that I should not. 112However, I should say that I have formed the opinion that both of these experts have undertaken their task diligently and thoroughly. Their opinions are unqualified and seem to me to be properly based upon the material that they had. As well, the opinions accord with the inexpert and untutored view, which I would have reached as a matter of common sense. 113As the tribunal of fact I am not bound by the opinion of any expert witness or any number of expert witnesses. However, this is a circumstance in which the expert witness engaged by the Crown, and whose evidence was not challenged by the accused, and the expert witness called by the defence, agree with each other. In those circumstances I should not reject the unanimous opinions of the expert witnesses unless there is evidence before me which would cast doubt on those opinions: R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Grove J. Here, there is no such evidence.

Should a Special Verdict be Found? 114The issue to which I now turn my attention is whether that mental illness, which I am satisfied beyond a reasonable doubt existed, is sufficient to satisfy the legal tests to enable a special verdict to be found. 115Before I do so, I note that, had the proceedings been heard in a trial with a jury, there would have been an obligation on me to inform the jury of the legal and practical consequences of a special verdict. I bear all those matters in mind in considering my verdict in this case. In particular I note, and have regard to, the following matters: (a)if my verdict is "not guilty by reason of mental illness", I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community. (b)if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by due process of law. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes a forensic patient and falls under the supervision of the Mental Health Review Tribunal. (c)the composition and functions of the Mental Health Review Tribunal, including its obligation to review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody, its obligation to review the patient at least once every six months, and its obligation not to release a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. 116The real issue in this trial is whether the accused has available to him the defence of mental illness. The defence is a matter for the accused to establish, not beyond reasonable doubt, but on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. If the accused does establish the defence of mental illness, then a special verdict is to be returned. 117Section 38(1) of the Mental Health (Forensic Provisions) Act provides: "38 Special verdict (1) If, in an indictment ..., an act ... is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his ... action at the time when the act was done ..., then, if it appears to the jury before which the person is tried that the person did the act ..., but was mentally ill at the time when the person did ... the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness." 118That section, and the Act, do not provide any definition of the term "mentally ill". The meaning of that term is determined in accordance with the M'Naghten Rules: R v M'Naughten (1843) 8 ER 718 at 722: "Every man is presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, unless the contrary is proven ...; that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong." 119In order to persuade the Court to return a special verdict, it is necessary for Mr Zahab to persuade me, on the balance of probabilities, that at the time he killed his father, he was suffering from a mental illness, which led to a defect of reason such that he did not appreciate the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. 120I am well satisfied that Mr Zahab knew what he was doing. He intended to kill his father by bashing him with the brick, which was wrapped in cloth. He also intended to kill him by stabbing him on a number of occasions in the chest and by attacking his father's neck in a chopping way. 121This was a brutal, vicious and unconstrained attack, which only stopped when Mr Zahab thought that his father was dead. I am persuaded beyond reasonable doubt that Mr Zahab knew the nature and quality of his acts. 122However, I am satisfied on the balance of probabilities that at the time of the killing, Mr Zahab was mentally ill. He was at that time, and had been for a significant period, suffering paranoid schizophrenia. This type of illness is a "disease of the mind". It was in an acute phase at the time of the killing, and was characterised by a number of bizarre and delusional persecutory beliefs. 123The evidence of the two expert psychiatrists who are eminently well qualified, and are highly experienced and respected in their profession, persuades me to accept the view, and I find that, Mr Zahab did not know that what he was doing was wrong. He could not make that judgment because of his mental illness. 124Paranoid schizophrenia, a mental illness recognised by the Diagnostic and Statistical Manual for Mental Disorders - 5th Edition (DSM-V), generally has features such as the presence of prominent delusions, or auditory hallucinations. The delusions are typically characterised by being either persecutory or grandiose, or perhaps both. Religiosity is often a feature of the delusions. It is atypical of paranoid schizophrenics to see disorganised speech, disorganised or catatonic behaviour or negative symptoms. 125Whilst it is always theoretically possible for an intelligent individual to attempt to feign or mimic the symptoms of paranoid schizophrenia, it is very hard to do so in a way that hoodwinks or deceives trained experts. It is particularly difficult to do so over a lengthy period of time. Here, Mr Zahab has suffered from a mental illness for over a decade. He has been consistently diagnosed with mental illness throughout that period, and by a number of different doctors. 126Here, I am persuaded that Mr Zahab is not feigning or inventing his mental illness for the purpose of avoiding the consequences of his criminal conduct. The accounts of the independent witnesses as to Mr Zahab's conduct prior to, and at the time of, the killing are consistent with and proof of, the diagnosis reached by the expert psychiatrists. As well, the very nature of the killing itself also serves as support for the conclusions of the experts. 127Because of his mental illness, Mr Zahab did not know that what he was doing was wrong. Counter-intuitively, Mr Zahab thought that what he was doing was right. 128This issue is raised by the second part of the M'Naughten Rules. It is necessary here to remind myself of the proper direction which would in substance be given to a jury on this issue. I do so by reference to legal authority. 129In R v Porter [1933] HCA 1;(1933) 55 CLR 182 at 189-190, the test was formulated by Dixon J in the course of his summing up to a jury in these terms: "The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression 'disease, disorder or disturbance of the mind.' That does not mean ... that there must be some physical deterioration of the cells of the brain ... you are dealing with a very different thing - with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression 'know', 'knew that what he was doing was wrong'. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged." 130The terms of this explanation of the second part of the M'Naughten test has been judicially approved: Stapleton v The Queen [1952] HCA 55; (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR (NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson [1976] VR 470 at 477 per Young CJ, Starke and NelsonJJ. 131It is appropriate that I regard what Dixon J said as a practical synthesis of the concepts involved, and have regard to it, in undertaking the task which follows. 132I have relied heavily on the expert opinions and evidence of Dr Nielssen and Dr Westmore. Both counsel for the Crown, and counsel for the accused, submitted that I should accept these opinions, and hence I should be satisfied that Mr Zahab has available to him the defence of mental illness because he did not know, in all of the circumstances, that what he was doing was wrong. 133In all of the circumstances, I consider that I should accept the expert psychiatric opinions and their evidence and, accordingly, I am satisfied on the balance of probabilities that at the time he killed father, the accused, Mr Zahab, did not know that what he was doing was wrong. Accordingly, he was mentally ill, and a defence under s 38 of the Mental Health (Forensic Provisions) Act has been established. 134The consequence of finding in the accused's favour on the defence of mental illness is that I return a verdict of not guilty on the ground of mental illness. One possible consequence of that is that the accused could be discharged, either conditionally or unconditionally, into the community. Neither the Crown, nor counsel for Mr Zahab submitted that in all of the circumstances of this case, this would be appropriate. It clearly would not be appropriate. 135What will happen in this case is that the accused will be detained in custody until he is released by due process of law. In other words, he will remain in custody and be held as a forensic patient and come under the supervision of the Mental Health Review Tribunal. 136In coming to my decision as to the appropriate verdict, I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. His case will be reviewed by the Tribunal as soon as practicable and, if further detained, his case will be reviewed at six monthly intervals. If at some stage the accused is released, it may be on conditions that if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained.

Additional Charge 137As I have earlier indicated, there are two charges of assault that have been brought before this Court pursuant to a certificate issued in accordance with the provisions of s 166 of the Criminal Procedure Act. 138The assaults occurred immediately before the killing of the deceased by the accused, and immediately after. Both occurred when the accused was mentally ill. 139I am satisfied that it is in the interests of justice that this Court should deal with these offences: s 166(1A) Criminal Procedure Act. 140Compared with the principal offence, these two backup charges are minor. No lasting injury was caused. The accused was mentally ill at the time. The accused has been in custody now since February 2013, a period of over 18 months, which is longer than any sentence that would have been imposed had he been found guilty of the offences. 141In this case, the interests of justice favour the final disposition of these charges. Accordingly, I will order that the charges be dismissed.

Conclusion 142My conclusions are: (a)I am satisfied beyond reasonable doubt that the acts of the accused Khoder Zahab on 14 February 2013 caused the death of Mohammed Zahab. (b)I am satisfied on the balance of probabilities that at the time of that killing the accused was labouring under such a defect of reason from a disease of the mind that he did not know that what he did was wrong.

Verdict 143I find the accused not guilty by reason of mental illness with respect to the sole count on the Indictment being the offence of murder contrary to s 18 of the Crimes Act 1900.

Orders 144I make the following orders pursuant to the Criminal Procedure Act 1986: (1)Order that the charges on the certificate pursuant to s 166 of the Criminal Procedure Act 1986, be dismissed. 145I make the following orders pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990: (1)Order that Khoder Zahab be detained at the Psychiatric Ward, Long Bay Prison Hospital, 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. (2)Direct the Registrar of the Court to notify the Minister for Health of this judgment and order. (3)Direct the Registrar of the Court to notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation: (a)A copy of these reasons for verdict and orders; (b)A transcript of these proceedings; (c)A copy of each of the exhibits tendered at the trial.

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