Director of Public Prosecutions v Ahmed
[2023] VSC 33
•7 February 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0285
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| LUQMAN ABDISHHAKUR AHMED | Accused |
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JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 January 2023 |
DATE OF RULING: | 7 February 2023 |
DATE OF PUBLICATION: | 17 August 2023 |
CASE MAY BE CITED AS: | DPP v Ahmed |
MEDIUM NEUTRAL CITATION: | [2023] VSC 33 |
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CRIMINAL LAW — Murder — Causing serious injury intentionally — Judge alone trial by agreement — Verdict of not guilty by reason of mental impairment — Accused declared liable to supervision — Matter adjourned so necessary further examination, report and certificate of available services might be obtained — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 41 and 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | A Moran | Office of Public Prosecutions |
| For the Accused | J Desmond | Theo Magazis & Associates |
HIS HONOUR:
Introduction
Luqman Abdishhakur Ahmed [‘the accused’] has been indicted on charges of murder, and intentionally causing serious injury. On 30 January 2023, he pleaded not guilty to both charges by reason of mental impairment.
The charges arise from events that occurred in North Melbourne on the morning of 2 January 2021, when the accused attacked Mohamed Noor Farah and Abdulahi Moallim with a knife. The accused first stabbed Mr Farah in the neck, which resulted in his death. Shortly after, he attacked Mr Moallim, and during a struggle, Mr Moallim was cut with the knife.
The accused has a diagnosis of schizophrenia and, in the period leading up to the events that occurred on 2 January 2023, it appeared that his mental health was deteriorating.
As will be explained, the hearing proceeded before this court on the basis that both the prosecution and defence agreed that a defence of mental impairment was open to the accused.
Background to the offending
The accused was born on 12 December 1990, and at the time of these events was 30 years old. He grew up in the United Arab Emirates. He is of the Islamic faith and regularly attended his local mosque. He married in 2014 and has three children.
On 30 November 2020, the accused’s wife and two children moved to Western Australia to be closer to her family. His wife was pregnant and due to give birth to her third child in mid‑January 2021.
On 12 December 2020, a friend of the accused drove him to the Northern Hospital in Epping as he had become worried about the accused’s mental health. The accused had been confused and was not eating or sleeping. The accused was admitted to the Northern Hospital where he remained for 13 days, being discharged on 25 December 2020.
Between 26 December 2020 and 1 January 2021, the accused told his friend that he wished to change his current address and live with his cousin and her husband at their apartment in North Melbourne. On 1 January 2021, the accused was by then at the apartment in North Melbourne, but it appeared that he was going to leave the next day after the Holy Qur’an was read on him.
The apartment was located on the third floor of a 20‑storey high‑rise residential apartment building in Sutton Street, North Melbourne. The building is managed by the Department of Health and Human Services.
The offending
On 1 January 2021 at about 10:25am, five men, including Mr Farah and Mr Moallim, visited the accused at the Sutton Street address. They wanted to offer assistance to him, believing him to be suffering mental health issues.
When they entered the lounge room, the accused was seen to be “walking around and talking to himself”. He was not making sense and seemed very nervous and worried. A little later, the accused calmed down and sat with the visitors, and the Holy Qur’an was read out loud. After that, the group had breakfast, and Mr Farah asked the accused to bring the group tea, encouraging him to engage in conversation.
The accused went into the kitchen and got a knife. He was seen to be standing in the corner of the kitchen, holding the knife in his hand with it pointing backwards. It was a small knife, about 15 centimetres long, with a silver blade. The accused did not say anything, but was looking around. The visitors tried to speak to the accused in an attempt to calm him down. Mr Farah said he would try and speak to the accused, and told the others to stand away from them. The accused was described as being angry and threatening with the knife, holding it at about head height, and slightly moving it backwards and forwards, not saying anything at all.
The accused then stabbed Mr Farah to the left side of his neck with the knife. At this point, the visitors and the accused’s female cousin were present inside the apartment. Two of the visitors grabbed Mr Farah and dragged him out of the apartment. Another called Triple Zero, requesting an ambulance.
As Mr Moallim tried to find the stairs, he saw the accused outside of the apartment holding the knife. The accused chased Mr Moallim, who ran back into the apartment where the accused’s cousin had remained. Despite Mr Moallim attempting to close the door on the accused, he was able to push the door open and entered the apartment. The accused held the knife up in front of his chest and appeared to be aiming it at Mr Moallim, who thought the accused was going to stab him. Mr Moallim grabbed the knife with his left hand, with the accused pushing him and trying to pull the knife back. Despite Mr Moallim holding it with all his force, the accused managed to pull the knife away, injuring Mr Moallim’s hand.
The accused’s cousin was able to open the door and left the apartment. Mr Moallim was able to follow and then closed the door on the accused, locking him inside, and held the door closed from the outside. Other nearby witnesses called Triple Zero and requested the police, who arrived a short time later.
Members of the Critical Incident Response team attended the scene and located the accused inside the apartment, still armed with the knife. He refused to drop the knife after being directed to do so and, as a result, force was used to arrest him.
Later, on 6 January 2021, a friend of the accused, Mubarak Muse, stated to the police that mental illness is not acknowledged in the Somalian culture. He said that if a doctor was to say there are no physical problems with a person, a form of spiritual healing can take place. A loose English translation of the equivalent Somalian description of this is that the spiritual healing is “removing demon voices from your head”. It is common in these circumstances for an Imam to read specific verses of the Qur’an to the sick person.
Investigators engaged the assistance of Dr Adrian Gully, who holds a PhD in Arabic and Islamic studies, and he opined that this form of spiritual healing occurs through prayer and supplication, using verses from the Qur’an, and also the traditions of the Prophet Mohammed. According to Dr Gully, this is sometimes referred to as a form of exorcism, and is known as Ruqyah Shariah.
It appears that these incidents occurred when Mr Farah, Mr Moallim, and the other three men attended on the accused for the purpose of engaging in the practice of Ruqyah Shariah.
The medical evidence
The accused was conveyed initially to the Royal Melbourne Hospital under police guard and he was found to have a fractured rib, and a right‑lung contusion. On subsequent examination on 3 January 2021, it was determined by a doctor from the Victorian Institute of Forensic Medicine that he was not fit for interview.
The accused was charged with murder and intentionally causing serious injury.
On 4 January 2021 a post‑mortem examination took place on the body of the deceased, and his cause of death was determined to be a stab wound severing the sub‑clavicle artery causing external and internal bleeding.
Mr Moallim was taken to St Vincent’s Hospital by ambulance in relation to treatment for the injuries to his hand.
As a result of the attack, Mr Moallim suffered injuries to his left index finger, middle finger and ring finger. A plastic and reconstructive surgeon operated on him to repair the wounds.
Consent mental impairment hearing
Agreement between the parties
By agreement between the prosecution and the defence, this matter proceeded as a consent mental impairment hearing pursuant to section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) [‘the Act’].
Role of the judge
The Act provides that, if a person is charged with an indictable offence, such as murder, and before the empanelment of a jury the prosecution and defence agree the proposed evidence establishes a defence of mental impairment, the trial judge may hear that evidence. If the trial judge is satisfied that the evidence does establish the defence of mental impairment, she or he may direct that a verdict of not guilty because of mental impairment be recorded.[1]
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 21(4)(a).
In this matter it was common ground between the prosecution and defence that the court should receive the evidence from two psychiatrists who were asked to examine the accused by the defence and prosecution respectively. There being no disagreement between the parties and the experts with respect to their conclusions about the mental health of the accused, the court was invited to form its conclusions on the basis of the two reports.
In the circumstances of full agreement, and no issue taken between the parties, I determined that a satisfactory course would be for the court to proceed on the basis of the written reports filed, and there would be no requirement to hear oral evidence. No party required the experts to be the subject of viva voce evidence in chief, or cross‑examination. Given this approach to the evidence, I will discuss the expert evidence in some detail below.
Further, it was common ground between the parties that if I was to accept the evidence before me, then the court should direct that a verdict of not guilty because of mental impairment be recorded.
Mental impairment
The Act provides that, in order to establish the defence of mental impairment, the accused must prove, on the balance of probabilities, that at the time he murdered Mr Farah and seriously injured Mr Moallim he:[2]
(a) did not know the nature and quality of his conduct; or
(b) did not know his conduct was wrong (that is, he could not reason with a moderate degree of sense of composure about whether his conduct, as perceived by reasonable people, was wrong).
[2]Ibid s 20(1).
The evidence placed before this court relevantly focused on the second part of the test laid out in the legislation.
The expert psychiatric reports
It is necessary to place the mental health of the accused in some broader context to understand the events that occurred on 2 January 2021. The evidence establishes that the accused had an established history of mental illness before these events, and these aspects have been addressed in the expert psychiatric evidence discussed below.
Having been advised by the parties that they agree the defence of mental impairment is open to the accused in respect of both charges, the expert evidence placed before the court comprised two psychiatric reports, being one from Dr Rajan Darjee, tendered as Exhibit 1, and the other from Dr Asiri Rodrigo, tendered as Exhibit 2.
The report of Dr Rajan Darjee
Dr Rajan Darjee is a consultant forensic psychiatrist at the Victorian Institute of Forensic Mental Health (Forensicare), and has worked in the field of forensic psychiatry for approximately 20 years. He was engaged on behalf of the accused to provide an expert opinion as to his mental health.
In his report dated 8 March 2022, Dr Darjee addressed some of the accused’s family and personal history. Dr Darjee noted that when the accused was 21 years old, he studied in Malaysia and completed a bachelor’s degree with honours in mechanical engineering. He suffered a psychotic episode when he was 23 years old, and was hospitalised, but after being discharged he returned to the United Arab Emirates. By this time, the voices that he had been experiencing had stopped. However, over the period that followed, Dr Darjee reports that by the time the accused was returning to Malaysia, he was experiencing symptoms of being unwell, although he was less paranoid. It appears that the accused had no further mental health issues until 2020, but at times felt somewhat paranoid and depressed due to feeling under pressure.
Dr Darjee noted that the accused is married with three children. The accused reported to Dr Darjee that he regarded himself as a good father, and that he loved his wife and children. It was noted that his wife had expressed concerns about her husband’s behaviour in the second half of 2020, and further noted that shortly before he had been admitted to the Northern Hospital she had moved back to Western Australia with her then two children, to be closer to her family. The plan was that he would follow her in due course. It appears that in mid‑2020, his mental health had begun to deteriorate, culminating in his admission to the Northern Hospital in December 2020.
As above, the accused was admitted to the Northern Hospital after a friend took him there because of concerns about his mental state and behaviour. The accused was diagnosed with delirium leading to “acute behavioural disturbance”. Medical examinations appear to have found other health matters of minor significance. An assessment by a psychiatrist concluded that the accused did not have a psychiatric cause for his presentation. However, it is noted that a psychiatric assessment at the Royal Melbourne Hospital, where he was admitted overnight following his arrest in early January 2021, concluded that an organic disorder, such as delirium, was unlikely given the extensive previous medical work‑up, and that he was likely to have a primary psychiatric disorder.
Dr Darjee noted that the accused has no previous charges or convictions, and does not have a history of aggressive, violent or antisocial behaviour prior to the alleged offending, or subsequent to his arrest on remand in custody. Rather, information from people who know him confirms the absence of a previous history of violence, with him being described as “friendly, helpful and prosocial”.
As to the period leading up to his offending, Dr Darjee noted that after discharge from the Northern Hospital, the accused became more paranoid, continued not to sleep or eat, thought that cameras were watching him and made sure his windows were shut. He did not take the medication he was given at the hospital as he thought there was something in it making him more ill. When he went to live with his relative in North Melbourne, he did not sleep, and walked around the house at night feeling very paranoid.
In referring to the events of 2 January 2021, the accused reported that he felt paranoid about the visitors, fearing that they would hurt him. He said he felt agitated and ashamed, that “everyone was coming to look at [him]”, and that this gave him “bad thoughts”. He recalled feeling afraid, and feeling certain that the men were going to kill him. When he was asked to get some tea he went to the kitchen area, and got a knife. He had a recollection of the men coming towards him which he felt was intimidating at the time. He remembered being asked to put the knife down, but found it difficult to remember exactly what happened next. He described Mr Farah being in front of the others when he stabbed Mr Farah to the neck. He described not being sure why he chased the others away with the knife, but recalled feeling very scared.
In Dr Darjee’s opinion, the accused has “clearly suffered from schizophrenia and was acutely and floridly unwell at the time of the offence”. Dr Darjee also expressed the opinion that, in retrospect, the accused:
was given the wrong diagnosis at the Northern Hospital, in that his presentation was due to acute schizophrenia and not delirium. However, given his lack of history of aggression, when well or unwell previously, no one could have predicted that he would commit serious violence. It is also unfortunate that his friends sought to have him “cured” through spiritual healing rather than through psychiatric treatment although his friends had taken him to hospital before.
Furthermore, Dr Darjee is of the opinion that:
Given his lack of substance misuse, the lack of an organic cause despite extensive medical investigations, and the lack of affective features, the potential differential diagnoses which could lead to a similar presentation are ruled out. This is a very clear‑cut case of a psychotic illness demonstrating classic symptoms of schizophrenia.
As to the mental state of the accused at the time of the alleged offences, Dr Darjee is of the opinion that:
he was clearly suffering from acute symptoms of schizophrenia at the time of the alleged offences… As the Imam and the others approached, he perceived that he was under a mortal threat, and so had to protect himself. So, he grabbed the knife and attacked the victim who died and injured the other victim. If he was not unwell the offences would not have occurred. There are not any other factors in his background or recent circumstances which predisposed him to or precipitated the violence. His acute schizophrenia and its effects on him were both necessary for the offences to occur and are sufficient to explain his behaviour.
Therefore, in my view, at the time of the alleged murder and intentionally causing of serious injury, he did not know his conduct was wrong, in that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. Therefore in my view he clearly has a mental impairment defence available to him.
The report of Dr Asiri Rodrigo
Dr Asiri Rodrigo is also a consultant psychiatrist currently employed by the Victorian Institute of Forensic Mental Health (Forensicare), and holds fellowships in the field of forensic psychiatry. He was engaged on behalf of the prosecution to provide an expert opinion as to the accused’s mental health.
In his report dated 22 August 2022, Dr Rodrigo addressed the psychiatric history of the accused, commenting on the accused’s self‑reporting of three self‑limiting episodes of mental illness in his past, in the context of stress, characterised by withdrawn behaviour, paranoid beliefs, sense of doom, and feeling the end was near. Dr Rodrigo observed the accused had a “more serious episode”, while studying in Malaysia at the age of 23, when he was admitted for two weeks to the inpatient psychiatry unit of the University of Malaya Medical Centre in Kuala Lumpur, Malaysia. The accused reported no further mental health issues until mid‑2020 when he began to experience low mood, lack of motivation, poor enjoyment, and negative thoughts. He reported feeling paranoid in late 2020, believing that the police and the government were after him, and believing Google was listening to him through wind turbines when he travelled with his wife on the Great Ocean Road in late 2020.
He reported a worsening of persecutory themes after his wife and children left for Western Australia on 30 November 2020. He was convinced that his phone was hacked, and reported seeing things related to him popping up in YouTube. He was afraid to leave his house or use his telephone. He believed his house was bugged, and at one point travelled without a clear aim about his destination. He heard voices coming from his car saying he was useless, that he could not do anything right and that his wife should divorce him. He recalled seeing a helicopter flying over him, birds coming near his car and people watching him and then driving fast. He was convinced he was being followed and felt fearful when driving back to his house in Melbourne. He felt unsafe at home and continued to hear voices and believed people were watching him.
The accused was treated as an inpatient from 12 December to 25 December 2020 at the Northern Hospital, being diagnosed with delirium leading to acute behavioural disturbance. He was presumptively treated for encephalitis with antivirals and steroids. After being discharged from hospital, the accused reported believing that he was being watched, and refused to go out of the house or open the curtains of the window. At about this time, he went to live with his relative in North Melbourne. He reported feeling paranoid at this place, and pacing up and down in the night, without sleeping.
Dr Rodrigo noted that a psychiatric assessment at the Royal Melbourne Hospital followed the accused’s arrest on 2 January 2021. The assessment concluded he was likely to have a primary psychiatric disorder, following which he was discharged into police custody to be followed up on by prison mental health staff. As to his mental health after arrest, the accused was assessed by psychiatric registrars as well as consultant psychiatrists at the Melbourne Assessment Prison [‘MAP’] in January 2021. He was found to be barely communicative with a marked latency in speech. He appeared distracted by unseen stimuli, guarded, suspicious and lacking in insight. The accused was managed in the acute assessment unit, a mental health unit in MAP, and was promptly started on antipsychotic medication (olanzapine), but remained dismissive, vague, latent, and distracted by unseen stimuli for the next few weeks.
Later in February 2021, the accused was transferred to the Aire Unit at Ravenhall Correctional Centre, which is a mental health unit. He was found by psychiatrists to be presenting with thought disorder and auditory hallucinations. However, by early March 2021, a marked improvement in his psychotic symptoms and functioning was noted. When transferred to Port Phillip Prison on 12 March 2021, his mental state was noted to be stable with various standard medications being employed.
On 20 May 2022, Dr Rodrigo conducted an examination of the accused’s mental state via video link to Port Phillip Prison. He observed that the accused did not appear distracted and was not appearing to respond to unseen stimuli. His speech was appropriate to the topic being discussed, was logical and there was no evidence of disorganised thinking. He self‑described his mood as generally okay, but sometimes depressed when remembering what he did. The accused had no depressive cognitions or self‑harm thoughts. At this point, there was no evidence of a disorder of thought form, no evidence of persecutory themes, self‑referential, religious or bizarre thinking. He had no self‑harm or hostile thoughts, and was regretful and remorseful of the alleged offence and sad about not being there for his family. He was happy to continue with his mental health treatment to lower the risk of a relapse, and with regard to his insight, believed he had schizophrenia and required treatment for it.
Dr Rodrigo opines that the accused meets criteria for a diagnosis of schizophrenia. He has had clear episodes of persecutory delusions, referential delusions, auditory hallucinations and disorganised behaviour. He appears to have a family history of psychotic illness and three nervous breakdowns in childhood which have increased his risk of developing schizophrenia. Currently, the accused does not appear to have residual symptoms of schizophrenia and has not had any incidents in custody and has engaged well in prison work, and appears to have strengthened his relationship with his family. Furthermore, Dr Rodrigo is of the opinion that the accused:
was mentally unwell at the time of his alleged offences in January 2021. His mental illness at the time of the alleged offence was characterised by persecutory delusions, referential delusions, auditory hallucinations and disorganised behaviour in the context of a relapse of schizophrenia on a background of psychosocial stressors.
Finally, Dr Rodrigo is of the opinion that:
on the balance of probabilities, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong due to persecutory delusions, referential delusions and disorganised thinking.
Dr Rodrigo further opines that:
he was suffering from a relapse of schizophrenia. His mental illness was the overwhelming factor in leading to his behaviour at the time … His delusional thinking was due to mental illness which would have significantly impacted his ability to understand the conduct was wrong. In my opinion, at the material time, Mr Abdishakur Ahmed was unable to know that his conduct was wrong.
The submissions of the parties
Submissions for the defence
Counsel for the accused addressed the evidence relied on in support of the defence of mental impairment. Salient aspects of the report of Dr Darjee were discussed.
On the basis of the available evidence, it was submitted that the accused has a defence of mental impairment that has been established on the balance of probabilities. Accordingly, the defence submitted the court should enter a finding of not guilty to the charge of murder, and not guilty to the charge of intentionally causing serious injury, on the grounds the accused was mentally impaired at the time of his offending.
Submissions for the prosecution
In response to submissions for the accused, the prosecution addressed relevant aspects of the report of Dr Rodrigo relating to the defence of mental impairment argued for by the accused.
The prosecution did not argue against the submissions made on behalf of the accused in respect of finding the accused not guilty of both offences on the grounds of mental impairment.
On the basis of the evidence available, and placed before the court, the prosecution accepts that the accused has a defence of mental impairment available, and that findings of not guilty are open on the evidence.
Findings
On the basis of the evidence placed before me, I am satisfied that Luqman Abdishhakur Ahmed engaged in the conduct that constituted the offence of murder, by which he caused the death of Mohamed Noor Farah, and there was no lawful excuse for doing so.
I am further satisfied Luqman Abdishhakur Ahmed engaged in the conduct that constituted the offence of causing serious injury by which he caused that serious injury to Abdullahi Moallim, and there was no lawful excuse for doing so.
Furthermore, on the basis of the evidence called, I am satisfied on the balance of probabilities that in respect of both charges, the defence of mental impairment has been established.
I am satisfied by the expert psychiatric opinions of Dr Rajan Darjee and Dr Asiri Rodrigo that, at the time the accused committed these acts, he did not know his conduct was wrong in the sense that he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. Both highly experienced psychiatrists have clearly agreed on this particular issue, and no dispute has been taken with their conclusions.
Accordingly, pursuant to section 21(4) of the Act, I find that Luqman Abdishakur Ahmed is not guilty of the charge of murder by reason of his mental impairment, and not guilty of the charge of intentionally causing injury, also by reason of his mental impairment. I will direct that verdicts of not guilty because of mental impairment be recorded in respect of both charges on the indictment.
Orders
I declare, pursuant to section 23(a) of the Act, that the accused is liable to supervision under Part 5 of the Act.
Pursuant to section 21(4)(c) of the Act, I order that the accused be remanded in custody in a prison, being satisfied that there is no practicable alternative in the present circumstances.
I order that a Certificate of Available Services be obtained and filed with the court under section 47 of the Act and I extend time for the obtaining of the certificate until 21 March 2023.
I order that a report be obtained and filed with the court under section 41 of the Act from the appropriate person. I extend time for the preparation of such report until 21 March 2023.
I order that the matter be brought back for mention on 4 April 2023.
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