Criminal Code Act 1924 (Tas) ss 16, 170(1), 361AA, 381.

R v Porter [1933] HCA 1, [1936] 55 CLR 182, The Queen v Falconer (1990) 171 CLR 30, followed.

Judgment Number: [2022] TASSC 50

1. The accused is charged on indictment with one count of committing an unlawful act intended to cause bodily harm contrary to s 170(1) of the Criminal Code. He has entered a plea of not guilty. In accordance with an order made by me pursuant to s 361AA of the Criminal Code, I conducted the trial as a single judge in place of a trial by jury.

1. The accused is entitled to the presumption of innocence. Accordingly, he is presumed to be innocent of this crime unless and until I am satisfied beyond reasonable doubt as to his guilt. The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt.
2. In this case, it is common ground that if I am satisfied beyond reasonable doubt that the accused committed the act which is alleged to constitute the crime charged in the indictment, then the question of insanity arises on the evidence in respect of the accused's criminal responsibility for that act. By s 15 of the Criminal Code, the accused is presumed to have been of sound mind at the time that he committed the relevant act, until the contrary is proved. The onus of establishing that he is not criminally responsible for the act on the basis of the insanity provisions of s 16 accordingly falls on the accused. It can however be established on the evidence presented by the prosecution, s 381 of the Criminal Code. The standard of proof is on the balance of probabilities, see s 141(2) of the Evidence Act 2001.

1. The indictment particularises the alleged crime as follows:

"Paul Justin Smyth at Kings Meadows, in Tasmania, on or about the 1st day of July 2020, with intent to maim, disfigure, disable or do any grievous bodily harm to Luke John Duncan, wounded and/or caused actual bodily harm to Luke John Duncan by striking him with an offensive weapon namely a knife to the face."

1. There is no dispute in this case that the accused committed the physical acts alleged in these particulars. The evidence as to this in the prosecution case consisted entirely of agreed facts and exhibits admitted by consent. The accused did not give evidence, but he adduced further agreed facts and psychiatric evidence concerning the question of insanity.
2. The evidence so adduced establishes to my satisfaction beyond reasonable doubt the following facts. On 1 July 2020, the complainant, Mr Duncan, was using the exercise facilities at a gym, Zap Fitness on Hobart Road, Kings Meadows. I accept that Mr Duncan's estimate of entering the gym at about 12pm is approximately accurate. The accused also entered the gym either shortly before or shortly after Mr Duncan's arrival. He had with him a sports bag, which contained a kitchen knife. The relevant conduct of the accused is clearly captured on CCTV footage. Both men appear to perform some exercises for a short time without interacting with each other. Then, while Mr Duncan is seated on the ground using a weight machine, the accused retrieves the knife from his bag and approaches Mr Duncan from behind. He immediately stabs him more than once to the side of his head. Medical evidence, confirmed by photographs, establishes that Mr Duncan suffered two deep wounds to his cheek, both 1- 2 centimetres in size. One extends through his right cheek to the mouth and the other is adjacent to his right ear, extending through soft tissue. The former required internal and external stitching and the latter external stitching. I find, having regard to the injuries, and my observation of the CCTV footage, that the accused stabbed Mr Duncan twice, in quick succession, thereby causing the said wounds.
3. Mr Duncan's evidence was adduced by way of the agreed tender of a statutory declaration made by him to police on 2 July 2020. He says that he initially thought that he had been punched by the accused to the face. I am satisfied that what he thought were punches were indeed the acts of stabbing perpetrated by the accused as already explained. Mr Duncan says that the accused then wrestled him back and pinned him to the ground. It was at that point that Mr Duncan noticed the knife. As the accused held him down, he was trying to push the knife into Mr Duncan again. Mr Duncan grabbed hold of the knife, and held it to resist being stabbed again. As a result of this, he suffered some cuts to his hand. Mr Duncan's entire version of the attack is unchallenged and consistent with the evidence of eye-witnesses and the CCTV footage. I accept his evidence as an honest and reliable account of the accused's conduct.
4. The CCTV footage shows a man come to Mr Duncan's assistance. I infer from the agreed facts that this is Dipendra Basnet. Mr Basnet removed the knife from the accused's hand. Another gym user, Lee Cobcroft, pushed the accused off Mr Duncan. It is clear that it was the intervention by these men that stopped the attack. The accused did not voluntarily desist, but after being pushed away by Mr Cobcroft, he did not renew the attack. He stood back while bystanders attended to Mr Duncan. Mr Duncan then got off the ground and struck the accused with one blow. The accused then collected his belongings and left the gym.
5. The relevant elements of the crime charged in the indictment are as follows:

(a) The accused wounded Mr Duncan. I am satisfied beyond reasonable doubt of this. It is obvious from the CCTV footage that he deliberately stabbed Mr Duncan to the face twice, and each act of stabbing caused a wound. It is clear from the photographic and medical evidence that each stabbing broke the skin and caused blood to flow.

(b) The acts were unlawful. In this case, there is nothing raised on the evidence that would justify or excuse this conduct. The attack by the accused on Mr Duncan was completely unjustified and obviously unlawful.

(c) At the time that he committed the acts in question, the accused intended to maim, disfigure, disable or do grievous bodily harm to Mr Duncan. I infer the existence of the requisite intention from the fact that the accused retrieved the knife from his bag, and then immediately and with obvious purpose strode directly to Mr Duncan and stabbed him to the face twice in quick succession. The existence of the relevant intention is, in any event, consistent with the agreed facts presented on the case for the accused. It is also consistent with the psychiatric evidence, which I will discuss shortly. The psychiatric evidence informs the reason for the existence of the intention. However, I am satisfied beyond reasonable doubt, and notwithstanding the psychiatric opinion, that the accused appreciated the nature of the physical act of stabbing Mr Duncan with the knife, and intended to thereby cause serious injury to Mr Duncan's health. Accordingly, I am satisfied beyond reasonable doubt that he intended to cause grievous bodily harm to him.

1. It follows that I am satisfied beyond reasonable doubt that the accused has committed the acts charged in the indictment, which but for the effect of s 16 on the criminal responsibility of the accused for those acts, would constitute the crime of an unlawful act intended to cause bodily harm contrary to s 170 of the Criminal Code.

1. There are number of pieces of evidence concerning the circumstances in which this attack was committed, which suggest that its perpetration was connected with the mental state of the accused. The attack appears to have been of a completely random nature. Mr Duncan and the accused were not known to each other, and nothing occurred in the gym before the relevant events which could objectively be regarded as provoking or explaining the attack. Mr Cobcroft said in his statutory declaration that in the moments after the attack, the accused "seemed as though something was wrong with him and like he was in a 'zombie mode'. His right eye was tilted in and the other appeared square on and both his eyes were closed over". Another man who was present at the gym at the time of the attack, Brodie Lang, said:

"I saw the male get pulled off by other people in the gym. After that he just walked over and grabbed his bag before eyeballing everyone and leaving. He seemed really spaced out like he did not even know what was going on."

1. Although the accused did not give evidence, he adduced a set of agreed facts, as well as opinion evidence from a psychiatrist. The agreed facts include his experience of symptoms immediately before the attack which provide important context for the psychiatric evidence. It is worth setting them out in full:
   1. Paul Justin Smyth was born on 18 September 1974.
   2. He was formally diagnosed with schizophrenia at 31 years old.
   3. Since he was 23 years old he has experienced auditory hallucinations due to his schizophrenia.
   4. In June 2020 he was experiencing auditory hallucinations and became fearful of being attacked.
   5. He was admitted to the Launceston General Hospital psychiatric unit on 7 June 2020 after contacting the Helpline to report his auditory hallucinations were worsening.
   6. He was discharged as a voluntary patient and referred to the Community Mental Health team and prescribed quetiapine.
   7. Quetiapine is used as an antipsychotic for schizophrenia treatment.
   8. The Community Mental Health team had been unable to contact Mr Smyth in the two-week period before 1 July 2020.
   9. In the two days prior to 1 July 2020 he carried a concealed knife on him when in public.
   10. On 1 July 2020 he attended Zap Fitness in Kings Meadows.
   11. He was experiencing persistent auditory hallucinations about the complainant, Mr Luke Duncan.
   12. He thought the complainant was a person from his past who had hit him over the head and brandished a knife about 5 or 6 years ago at the Old Tudor Hotel in Launceston.
   13. He now accepts he did not know the complainant and had never met him previously.
   14. He thought the complainant had a foot long knife and became fearful for his life.
   15. He was experiencing auditory hallucinations that were saying "warn him off...cut his face".
   16. He thought the only thing to do was to attack the complainant.
2. Clearly these facts are consistent with the objective nature of the accused's actions and the observations of the witnesses discussed above.
3. The defence presented evidence from Dr Michael Jordan, a consultant psychiatrist. Dr Jordan has appropriate academic qualifications, and has considerable experience in the field of forensic psychiatry. He held the position of Clinical Director of the Tasmanian Forensic Mental Health Service between 2009 and 2016. I am satisfied that Dr Jordan has appropriate specialised knowledge based on his training, study and experience to be able to express an opinion concerning issues arising under s 16 of the Criminal Code in respect of the accused and the acts committed by him which constitute the alleged crime.
4. Dr Jordan's testimony consisted of two written reports and oral evidence. He has interviewed the accused twice, on 27 October 2020 and 11 August 2021. He agrees with prior diagnoses, which establish that the accused has suffered from a long standing condition of schizophrenia. Dr Jordan describes the disease as "the archetypical, forensic psychotic disorder". The accused described to him a lengthy history of repeated symptoms of distressing auditory hallucinations and paranoid type delusions. Dr Jordan confirmed that these are typical symptoms of schizophrenia. In his opinion, the accused was suffering from schizophrenia when he attacked Mr Duncan.
5. The accused's report to Dr Jordan of his condition leading up to and at the time of committing the relevant acts is consistent with the agreed facts presented in the defence case. In particular, the accused had been experiencing paranoid beliefs about being under threat from strangers, and associated auditory hallucinations leading up to the day in question. As a result, he had taken to carrying a knife for personal protection. He responded to the auditory hallucinations, noted by Dr Jordan to sometimes be called voices, in the context of his paranoid delusions, when he made the decision to attack the complainant. He had formed a psychotic belief that the complainant had attacked him in the past and was a present threat to him while they were both in the gym. He therefore decided to attack him. Dr Jordan's opinion, within the context of the issues relevant to criminal responsibility of the accused under s 16 can be summarised as follows:

(a) The accused was afflicted with mental disease, in particular schizophrenia at the time that he committed the acts which are alleged to constitute the crime

(b) The mental disease did not, however, render him incapable of understanding the physical character of the act of stabbing the complainant with the knife. Dr Jordan expresses the opinion that the accused continued to be aware that "the knife could inflict injury upon another".

(c) He did not commit the act of stabbing Mr Duncan "under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist". Dr Jordan can detect "no convincing evidence that he was experiencing impulses to attack the complainant". Although he was experiencing auditory hallucinations instructing him to attack Mr Duncan with the knife, he had the power to resist these perceived demands.

(d) The remaining question under s 16 is whether the schizophrenia afflicted the accused to such an extent as to render him incapable of knowing that the act of stabbing Mr Duncan was one which he ought not to do or make: s 16(1)(a)(ii). On this question, the following exchange during Dr Jordan's testimony (T45, L11-33) is relevant:

"As opposed to the second limb under s16(1)(a) which is 16(1)(a)(ii), your opinion is ultimately that he knew he ought not have done - that it's something that he ought not have done?......He was attempting to conceal the knife when he was moving around the community which might suggest some understanding that even having the knife on his presence, let alone using it, would be against the law, illegally wrong. But at the moment - at the time of the actual incident within the gym, the intensity of the paranoia and the hallucinations led him to his final decision making and attacking the complete stranger, I believe. And I did give some background to that as well. He - Mr Smyth was convinced that, again, one of these characters who'd been following him around, and of course, he didn't know who that was at that time. But on the day in question, he happened to focus his attention on another individual in the gym where they were exercising and he became convinced that that individual was essentially the master mind behind what had been occurring for himself in the months leading up to it. And he referenced an incident that he had met this individual five to six years briefly in a, sort of, robbery that was inflicted upon Mr Smyth, allegedly by this other gentlemen. I suspect that was all delusional, hadn't really happened. But when he was at the gym that day, he became totally convinced that the other individual who was exercise, who eventually he stabbed, was that individual and was fearful".

1. After this evidence, I raised the applicability of s 16(3) with Dr Jordan. That subsection provides as follows:

"A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed."

1. In particular, I was concerned about whether if an assumption were made that the accused's delusional belief about the complainant was true, he would otherwise have had the capacity to understand that the act of stabbing the complainant was one which he ought not do. My reason for asking this was to assist me to determine whether the accused is exempted from criminal responsibility under s 16(1)(a)(ii), in which case s 16(3) is not applicable. Otherwise, it may well be that he would retain criminal responsibility to the same extent as if the fact which he was induced by the delusion to believe really existed. This would then raise the issue of self-defence. The effect of Dr Jordan's evidence about this was that the symptoms being experienced by the accused at the time of committing the crime included not only the delusions and the auditory hallucinations, but also disorganisation of thinking which impaired his ability to reason about the rights and wrongs of his conduct. Dr Jordan's opinion was that the combination of these symptoms including the impairment of his reasoning capacity "led him to not appreciate the wrongfulness of what he was doing". (T47, L28-29). This evidence supports the conclusion that the accused is exempted from criminal responsibility under the second limb of s 16 (1)(a), and accordingly s 16(3) does not apply.
2. The prosecution led evidence in rebuttal under s 381(4) of the Code from another consultant forensic psychiatrist, Dr Rajan Darjee. Dr Darjee is also well qualified as a psychiatrist, including in the field of forensic mental health. He currently holds an appointment as consultant forensic psychiatrist to the Forensic Mental Health Service in Tasmania as well as a similar appointment in Victoria and an academic position in the field of forensic mental health. I am satisfied that Dr Darjee is qualified to give opinion evidence in relation to the issues which arise in this case.
3. Dr Darjee interviewed the accused for the purposes of forming an opinion on 9 May 2022. The version he was given by the accused concerning his longer term experience of schizophrenia, the symptomology he was experiencing leading up to the events in question and his experiences of delusional beliefs and auditory hallucinations immediately before and at the time of committing the relevant acts was consistent with that given to Dr Jordan, and the agreed facts presented on the accused's case. Dr Darjee, in essence, agrees with Dr Jordan. His opinion is summarised in the following passages from his report:

"He believed the man he attacked was this man who had previously attacked him. He came to realise this in the gym. He thought the man was going to harm him and kill him, and the voices impelled him to stand up for himself and attack him. He had been carrying a knife for self-protection in the context of feeling under threat. It seems clear that if he was not acutely psychotic the alleged offences would not have occurred. His mental illness was the primary and overwhelming factor in leading to his violence. His illness was both necessary and sufficient to explain what happened.

Turning to the legal criteria for a defence of insanity he was clearly suffering from a 'mental disease' (i.e. schizophrenia) at the time of the alleged offences. Although he was able to understand the physical character of the acts, in my view he did not know that such acts were ones he ought not to do. He believed the man he attacked was planning to seriously harm or kill him and that he needed to protect himself from this man. In addition, the loud and compelling voices spurred him to act and defend himself. However, in my view, he was capable of controlling his behaviour generally, albeit that he felt compelled to attack pre-emptively and to defend himself, as he considered himself to be in mortal danger."

1. I also raised with Dr Darjee the relevance of s 16(3). As with Dr Jordan, Dr Darjee expressed the opinion that the impairment in the accused's mental functioning resulting from the mental disease went well beyond acting pursuant to a deluded belief. He said (T57, L35-37):

"I think there is far more going on than just the belief at the time. I think that there were other aspects of his mental functioning that were quite severely impaired at the time."

1. I am satisfied that the accused was afflicted with mental disease when he stabbed Mr Duncan with the knife. In determining this question, I direct myself in accordance with the comments of King CJ in The Queen v Radford (1985) 42 SASR 266, as approved by Mason CJ, Brennan and McHugh JJ in The Queen v Falconer (1990) 171 CLR 30 at 53, as follows:

"The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called 'defect of reason' in the M'Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli."

1. Applying this test to the evidence in this case, there is no doubt in my mind that the accused was experiencing symptoms of schizophrenia at the relevant time and that this amounts to a mental disease within the meaning of s 16.
2. I am not satisfied that the schizophrenia rendered the accused incapable of understanding the physical character of the act of stabbing Mr Duncan with the knife (s 16 (1)(a)(i)), nor that he committed the relevant acts under an impulse that he was unable to resist (s 16(1)(b)). However, the psychiatric evidence clearly supports a finding the accused was, at the time of committing the relevant acts, affected by symptoms of schizophrenia to such an extent that he was rendered incapable of knowing that the act was one which he ought not do. In determining whether I am satisfied on the balance of probabilities that he is not criminally responsible for the acts because of this, I direct myself in accordance with the charge to the jury by Dickson J in R v Porter [1933] HCA 1, [1936] 55 CLR 182, as follows:

"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."

1. Ultimately, this is a question of fact for me. Of course, my determination of it is informed by all of the evidence, including the psychiatric opinion. The evidence clearly establishes that the accused was severally affected by psychotic symptomology at the time that he committed these acts. He had been suffering symptoms of paranoid delusions, auditory hallucinations and disordered thinking on an increasingly severe basis for some weeks leading up to 1 July 2020. Although he was in possession of medication, it is probable that he had not been regularly consuming the medication and even if he was, it was proving ineffective in moderating his experience of the symptoms. He understood the physical nature of the act that he perpetrated, and in particular that by stabbing Mr Duncan, he would cause injury to him, but I am satisfied, on the balance of probabilities, that his capacity to reason and appreciate whether what he intended to do was right or wrong was so severely impaired by the symptoms of schizophrenia that he was rendered incapable of knowing that the acts were ones which he ought not do. It follows from this that the accused is not criminally responsible for those acts under s 16(1)(a)(ii) of the Code, and further, that s 16(3) has no application to the circumstances of this case.

1. Having regard to these findings, I return the following verdict:

The accused committed the acts charged, but is not guilty, on the ground that he was insane at the time so as not to be responsible according to law.