Director of Public Prosecutions v Bray
[2024] VSC 530
•30 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0142
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| ADAM BRAY | Accused |
---
JUDGE: | Elliott J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 August 2024 |
DATE OF JUDGMENT: | 30 August 2024 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Bray |
MEDIUM NEUTRAL CITATION: | [2024] VSC 530 |
---
CRIMINAL LAW – Consent mental impairment – Charges of attempt to intentionally cause serious injury, assault emergency worker on duty, resist emergency worker on duty and common law assault – Accused suffering from schizophrenia – Expert psychiatric evidence – Verdict of not guilty by reason of mental impairment – Accused declared liable to supervision – Matter adjourned to allow for report and certificate of available services to be obtained – Application for suppression order – Application withdrawn – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 41, 47, 75.
---
APPEARANCES: | Counsel | Solicitors |
| For the prosecution | A Moran | Office of Public Prosecutions |
| For the accused | A Cannon | Barwon South West Lawyers |
HIS HONOUR:
A. Introduction
The accused, Adam Bray (“Bray”), faces charges of attempting to intentionally cause serious injury, assaulting an emergency worker on duty, resisting an emergency worker on duty and common law assault.
On 28 May 2024, the parties agreed that the evidence established the defence of mental impairment in relation to each of the charges,[1] and the matter proceeded before this court today as a consent mental impairment hearing.
[1]And the matter could therefore be heard by a judge alone pursuant to s 21(4) of the Act.
For the reasons that follow, the court is satisfied that the evidence establishes the defence of mental impairment under section 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Accordingly, I will direct a verdict of not guilty because of mental impairment be recorded pursuant to section 21(4)(a) of the Act, and declare Bray liable to supervision under Part 5 of the Act.
Bray separately applied for a suppression order pursuant to section 75 of the Act,[2] in order to prevent the publication of any information that might enable him to be identified. This application was ultimately withdrawn at the hearing today. Bray’s counsel properly conceded that there was a lack of evidence that it was in the public interest to make such an order. There was no evidence before the court, for example, of any adverse impact that might be caused to Bray, including in respect to his rehabilitation, by the publication of any identifying information.
[2]The Open Courts Act 2013 (Vic) does not limit or otherwise affect the operation of s 75: see Open Courts Act, s 8(1) and (2)(d).
B. Background
On 28 November 2022, at approximately 2.30pm, 2 mental health clinicians working for Barwon Health, Guy Willersdorf (“Willersdorf”) and Karina Sullivan (“Sullivan”), attended an address in Torquay, Victoria (“the Torquay Residence”) to perform an urgent mental health assessment of Bray. Willersdorf and Sullivan’s attendance was preceded by contact from Bray’s mother, who reported alarming behaviour on his part.
Upon arrival at the Torquay Residence, Willersdorf and Sullivan spoke to Bray, who made threats of physical violence against them if they did not immediately depart. Perceiving the threats to be genuine, the clinicians left and made contact with Victoria Police.
At approximately 3.20pm that day, Willersdorf and Sullivan met with representatives of Victoria Police and Ambulance Victoria at a location near the Torquay Residence. The purpose of this meeting was to formulate a plan to remove Bray and convey him to a hospital as an involuntary patient.
It was decided that 4 police officers, senior constables Gerrard Allman (“Allman”) and Stephen Pearson (“Pearson”) and leading senior constables Joe Anderson (“Anderson”) and Tracey Van Looy (“Van Looy”), would attend the Torquay Residence along with Willersdorf and Sullivan and 2 paramedics, Hannah Allen (“Allen”) and Callum Dixon (“Dixon”). So as to avoid overwhelming Bray, it was agreed that Anderson and Van Looy would remain at the front of the Torquay Residence, while the others would enter the house and attempt to negotiate with Bray to leave voluntarily.
Upon attending at the Torquay Residence at 3.36pm, the group made contact with Bray’s sister and arranged for her to open a garage door leading to the rear yard of the property. At approximately 3.40pm, Allen and Dixon, followed by Willersdorf and Sullivan and then Allman and Pearson, entered the rear yard through the open garage door. Allman and Pearson both activated their body-worn cameras upon entering, and the events which followed were captured on high-quality footage.
As Allen and Dixon approached the glass sliding doors at the rear entry of the house, they heard loud footsteps inside. An internal curtain was drawn back and each of Allen, Dixon, Willersdorf and Sullivan saw Bray standing on the other side of the door holding a knife with a blade approximately 30 centimetres in length.
Sullivan shouted words to the effect that Bray was armed with a weapon and Allen, Dixon, Willersdorf and Sullivan immediately retreated, moving past Allman and Pearson and towards the garage at the rear of the property.
Bray then opened the door and charged out of the house, brandishing the knife in his right hand. As he moved towards Allman and Pearson, both officers deployed pepper spray in an unsuccessful attempt to deter Bray. As Allman retreated backwards, he attempted to remove his taser from its holster but fell over in the process, landing on his back. Bray lunged forward and threw himself on top of Allman, attempting to stab Allman several times in the stomach region. In his efforts to fend off Bray from his position on the ground, Allman sustained multiple wounds to both hands, his left arm and his left upper thigh.
Anderson and Van Looy ran from the front of the Torquay Residence to provide assistance. Bray continued to struggle until the officers were able to hold his arm down and remove the knife. Bray remained aggressive after he was disarmed, making attempts to grab Allman’s firearm from its holster. As Bray continued to resist, Pearson deployed pepper spray and Allman discharged his taser, striking Bray with both probes. Bray eventually complied with police instructions, though he remained verbally aggressive.
Both Bray and Allman were conveyed to hospital for medical treatment. Allman spent a number of days in hospital receiving treatment and surgery for the injuries he sustained. After Bray was examined, he was released from hospital into police custody, where he was charged in relation to the offending.
Concerns were raised as to Bray’s mental state shortly after he was taken into custody. A mental health assessment was conducted on 29 November 2022, which recorded a diagnosis of delusional disorder and a history of substance abuse. Following a psychotic relapse and refusal of medication in custody, Bray was made the subject of a secure treatment order[3] and transferred to Thomas Embling Hospital on 19 December 2022. After responding well to treatment and medication, Bray was discharged on 24 January 2023 and returned to prison.
[3]Pursuant to pt 10.2 of the Mental Health and Wellbeing Act 2022 (Vic).
After 2 unsuccessful applications for bail in the Magistrates’ Court of Victoria, Bray was granted bail in this court on 22 June 2023.[4] Bray was committed for trial on 4 July 2023, and granted bail for attendance at trial on the same day. That order was varied on 3 November 2023, and has since been extended on several occasions. Bray’s grant of bail has been conditional on his continued engagement with treatment and supportive services, including compliance with his medication regimen.
C. Defence of mental impairment
[4]Re Bray [2023] VSC 371.
C.1 Expert evidence
On 1 August 2023, the defence filed a psychiatric report authored by Associate Professor Danny Sullivan, an independent consultant forensic psychiatrist. As this matter is being dealt with by consent, it is unnecessary for present purposes to repeat the extensive details of Bray’s personal, medical, psychiatric and substance abuse history set out in that report. Based on the results of a mental state examination of Bray he conducted on 22 March 2023 and information received from other sources, Associate Professor Sullivan expressed the opinion that Bray was suffering from a psychotic illness, with delusional beliefs and behaviours consistent with schizophrenia.
On the basis of his assessment, Associate Professor Sullivan stated that he considered the defence of mental impairment under section 20(1)(b) of the Act to be available to Bray. In support of this conclusion, Associate Professor Sullivan opined that Bray’s offending was underlaid by persecutory delusions and specific beliefs about police, as well as hostility toward mental health clinicians. As a result of Bray’s untreated psychotic illness and delusional beliefs, Associate Professor Sullivan was of the view that at the time of the offending, Bray was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct.
In response to Associate Professor Sullivan’s report, the prosecution requested that Dr Michael Ryan, psychiatry registrar at the Victorian Institute of Forensic Mental Health (otherwise known as “Forensicare”) conduct an assessment of Bray. Dr Ryan prepared a report of this assessment.[5]
[5]The assessment was conducted under the supervision of Dr Elena Bhattacharya, consultant psychiatrist at Forensicare.
Again, it is unnecessary to discuss the contents of Dr Ryan’s report in great detail. It outlined Dr Ryan’s assessment of Bray’s personal, medical, psychiatric and substance abuse history, lifestyle and psychosocial functioning, as well as information obtained from collateral sources in relation to Bray’s mental health history. It also described Bray’s account of the offending and subsequent events, and the results of the mental state examination of Bray conducted on 5 December 2023.
Based on his assessment and information received from other sources, Dr Ryan likewise expressed the opinion that at the time of his offending, Bray was unable to reason or rationally consider with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong. In this regard, Dr Ryan referred to Bray’s gradually worsening functional decline in the lead-up to the offending, his specific persecutory delusional beliefs about police, the intensity of his distrust of mental health staff, and the high level of arousal and agitation Bray was experiencing on the day of the offending, ultimately opining that Bray met the criteria for a diagnosis of schizophrenia. On this basis, Dr Ryan concurred that the defence of mental impairment under section 20(1)(b) of the Act was available to Bray.
Both parties subsequently agreed that the evidence established the defence of mental impairment. Consequently, the matter came before the court to determine whether the evidence did in fact establish this defence, such that a verdict of not guilty because of mental impairment ought to be recorded.
C.2 Consideration
Having read the evidence, I am satisfied that it establishes the defence of mental impairment under section 20(1)(b) of the Act. It is clear that at the time of engaging in the conduct constituting the offending, Bray was suffering from and acting under a mental impairment, most likely schizophrenia. The effect of this was that Bray could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.
Accordingly, I direct a verdict of not guilty because of mental impairment be recorded pursuant to section 21(4)(a) of the Act, and declare Bray liable to supervision under Part 5 of the Act.
At the hearing, the parties agreed it was appropriate that Bray be granted bail pursuant to section 24(1)(a) of the Act pending the making of a supervision order. As such, orders will be made granting bail on conditions similar to those presently imposed, pending the preparation of a further report on his mental condition and the provision of a certificate of available services as required by sections 41(1) and 47 of the Act respectively.
---
0
0
0