Director of Public Prosecutions v Fb

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0008

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
FB	Accused

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2025
DATE OF JUDGMENT:	30 June 2025
CASE MAY BE CITED AS:	DPP v FB
MEDIUM NEUTRAL CITATION:	[2025] VSC 378

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CRIMINAL LAW – Murder – Attempted murder – Conduct endangering life – Where accused has diagnosis of schizoaffective disorder and was experiencing psychosis and mania – Defence of mental impairment – Defence established – Where it is in the public interest to make a suppression order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23(a), 41, 47, 75.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Daniel Porceddu	Office of Public Prosecutions
For the Accused	Ms Julia Munster with Ms Emily Allan	Victoria Legal Aid

Contents

A. Introduction

B. The accused’s background and medical history

C. The events of 7 and 8 September 2023

C.1          The leadup
C.2          The unlawful conduct
C.3          The aftermath

D. Medical opinions and the defence of mental impairment

E. Conclusion – the defence is made out

F. The statement made to the paramedics

G. A supervision order and a suppression order

H. Disposition.

HIS HONOUR:

A. Introduction

On the afternoon of 8 September 2023, FB[1], the accused, drove his vehicle through Bourke Street Mall at pedestrians and then at another vehicle at speed. Three pedestrians suffered serious injuries and the driver of the other vehicle died. The accused was charged with one count of murder, three counts of attempted murder and two counts of reckless conduct endangering life.
[1]A pseudonym order has been made.
The Crown and the accused agree that the proposed evidence establishes ‘the defence of mental impairment’. Section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 provides that where there is that agreement, a judge may hear the evidence without a jury and, if satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.
The defence of mental impairment is established if, at the time of engaging in conduct constituting the offence, the accused was ‘suffering from a mental impairment that had the effect that he ... did not know that the conduct was wrong (that is, that he… could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).’[2]
[2]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20(1)(b). Under s 20(1)(a), the defence is also established if an accused was suffering from a mental impairment that had the effect that he or she did not know the nature and quality of the conduct. That subsection was not relied on in this case.
Having heard the evidence, and for the reasons set out below, I am satisfied that the evidence establishes the defence of mental impairment and will direct that a verdict of not guilty by reason of mental impairment be recorded.

B. The accused’s background and medical history

The accused has a long history of psychotic mental illness requiring inpatient treatment. The history indicates there were periods of time where the accused took antipsychotic medication, including by way of ‘depot’ injections which last for several weeks, and periods of time when he ceased to take medication that were accompanied by relapses and the development of florid psychotic and manic symptoms that resulted in his being admitted for inpatient treatment. As is not uncommon, the history indicates that the accused was reluctant to stay on antipsychotic medication because he preferred the way he felt when he was not on that medication.
The Crown called evidence from the forensic psychiatrist Dr David Trainor and the accused called evidence from the forensic psychiatrist Associate Professor Andrew Carroll. Both met with the accused and took a history from him and both were provided with thousands of pages of medical records. The accused did not challenge any of the history as recorded by Dr Trainor or his opinion and the Crown did not challenge any of the history as recorded by Associate Professor Carroll or his opinion. The following is taken from their reports.
The accused was born in 1996 and is 28 years old. His parents are from Fiji, and separated when the accused was young. He is the second oldest of four children, three of whom are borne out of his parents’ union. The accused no longer has contact with his father, and seemingly was raised primarily by his mother. The accused says he was not exposed to physical or sexual violence during childhood, but previous medical records indicate some exposure to family violence.
The accused left school in Year 12, and completed a Diploma of Travel and Tourism. He undertook some studies in hairdressing and held jobs primarily in the fields of sales and hospitality. Immediately prior to the offending, the accused was working in a café at Sunshine Hospital from which, as discussed below, he resigned on the morning of the offending.
The accused said that his first episode of psychosis may have occurred in 2015 or 2016 after smoking cannabis. However, his first recorded episode of psychosis was in August 2017, when he was admitted as an inpatient at Monash Medical Centre for six weeks. He was diagnosed with schizoaffective disorder. He was given olanzapine, an antipsychotic, to be taken orally and by fortnightly injection. On discharge, the accused was subjected to a ‘community treatment order’ and prescribed antipsychotic medication.
In December 2017 his medication was changed, and from April 2018 his medication was reduced and then ceased. In late 2018, the accused suffered a ‘gradual deterioration’ of his mental health, during which he became ‘preoccupied’ with his former employer failing to pay him, made threats to kill and ultimately confronted his former employer. Around this time, the accused was reported as carrying a knife. In November 2018, he left the family home for a week and spent over $5,000 on hotels, sex workers and cannabis. By December 2018, the accused was suffering from grandiose delusions including beliefs that he was able to ‘see an alternative reality’, had special god-like powers and was the recipient of a ‘special message’. The accused was admitted as an inpatient at Dandenong Hospital for 10 days. Oral antipsychotic medication was recommenced.
The accused ceased taking his medications due to his concerns about their side effects. In February 2019, he presented as ‘guarded, irritable, grandiose and thought disordered’ and stated that he had ‘powers like God’. In May 2019, the accused was admitted as an inpatient to Orygen Inpatient Unit after he had punched a wall at a health clinic then began jumping in front of moving vehicles while half-dressed and yelling ‘God is dead’. He said he could make up for his father’s lack of success by killing people and that by killing others he was ‘putting them out of their misery and delusions’ (he thought that everyone but him was delusional). He was diagnosed as suffering a manic relapse of schizoaffective disorder. He was discharged after four weeks on a further community treatment order with prescribed medication including monthly injections of antipsychotic medication.
In late June 2019, the accused was readmitted to Orygen Inpatient Unit after suffering a ‘relapse in grandiose delusions’, and being assessed as ‘manic, psychotic and disinhibited’. It was suspected that he was not complying with his medication, and that he had been using cannabis. The accused had been making posts on social media referring to ‘murder suicide’ and being a ‘God’. Between the May and June 2019 inpatient admissions, the accused had also received a new tattoo which read ‘King [FB] 9619’, the numbers representing what the accused said were the years of his birth and death. He was discharged after 17 days with antipsychotic medication to be injected every three weeks.
The accused did not present for his injections of antipsychotic medication. In mid-August 2019, he was again admitted to Orygen Inpatient Unit for a further eight weeks. During this admission, the accused had persistent delusional beliefs, believed that he was ‘destined to be the greatest’, and was ‘preoccupied with God’ and experiencing ‘persistent homicidal thoughts’. He continued to hold the belief that people around him were delusional and by killing them, he would ‘set them free’. On one occasion the accused absconded from the Inpatient Unit to a hotel and used the services of a sex worker. On 13 September 2019, he reported a sense of overwhelming power that took over his body like a demon. In October 2019, after moving to a transitional unit within the health facility, the accused absconded and refused his medications. In October 2019, he was readmitted to Orygen Inpatient Unit for almost three months. He continued to believe that everyone else was delusional and ‘controlled by demons’ and he said that he was ‘destined to release people from their demons by killing them’. His medication was changed to clozapine, which is an antipsychotic medication ‘reserved for treatment resistant psychosis’.
In late January 2020, the accused was admitted as an inpatient to Sunshine Acute Psychiatric Unit for 10 days and then to a community care unit for a period of time.
In June 2020, he was admitted to Sunshine Acute Psychiatric Unit for approximately four weeks. This admission followed an incident whereby the accused was found by police officers ‘dancing in the middle of the main road… attempting to run in front of oncoming traffic’. The ambulance officers who brought the accused to the health facility noted that he was ‘ranting and talking to himself, talking about God and preaching, agitated and aggressive physically’. He required three doses of zuclopenthixol acetate, which is an antipsychotic used for ‘extreme psychotic agitation’. In the course of his admission, he told other patients to cease taking their medication and insinuated one was possessed by the devil. His discharge summary noted ‘schizoaffective disorder relapse secondary to medication noncompliance’.
In August 2020, the accused was admitted to the Dandenong Inpatient Unit for 16 days, after he had run away from the family home saying that he ‘need[ed] to return to God’. Again, the accused was discharged into the community on a community treatment order and with prescribed medication including by long-acting injection. A further inpatient admission to Sunshine Acute Psychiatric Unit occurred in early September 2020 following an episode when he became ‘physically hostile’ when he was told that his medication would be increased. The accused was discharged after three days. On that occasion, the accused’s behaviour was assessed as ‘more likely to have been behavioural and as the result of frustration rather than being indicative of psychotic relapse’. It seems that at this time the accused first started to believe he had a special connection with a deceased rapper, XXXTentacion, and that they were ‘on a different wavelength to wider society’.
In January 2021, the Mental Health Tribunal made a further community treatment order in relation to the accused and noted that the accused ‘does not believe he has a mental illness’ and ‘denied that he has ever been a risk to himself or others’. Psychiatric reviews in March, July and November 2021 suggested that he was making some progress, although he still had concerns about side-effects of his medication and showed little insight into his mental health. His medication was reduced.
By February 2022, the accused was assessed by a psychiatrist as experiencing ‘remission in psychotic and affective symptoms’. Clinical notes from May, June and August 2022 indicate that the accused believed ‘Satan is the cause of his symptoms’ and that previous hospital admissions were a result of ‘demonic possession’ rather than mental illness. In June 2022, the accused stated that his ‘energy and charkas are out of line since starting medications’, he identified as a demon, and said he ‘wants the demons to come back’. In September 2022, he reported decreased sexual function and feeling ‘lifeless’ due to his medication. In November 2022, he questioned his need for the injection on the basis that he had no mental illness and said that his hospital experience had been ‘traumatic and coercive’, and also said that the medication prevented him practising his spirituality and blunted his affect.
In January 2023, notes of a telephone call with a clinician recorded that the accused spoke of ‘how well he is doing now, working fulltime, doing well in his mental state’ and that he was ‘not possessed by the devil because of the injection’ (referring to the regular depot injection of antipsychotic medication). It seems that, while reluctant, he continued with his medication.
On June 2023, at the request of the accused and his mother, the accused was transitioned off the depot injections, seemingly due to their concerns around the side effects of that medication. The plan was to cease the injections of zuclopenthixol and to replace them, after two or three weeks, with olanzapine taken orally. He had his last injection on 14 June 2023. It was noted that the half life of the medication was 20 days and that it would take five half-lives for the zuclopenthixol to be ‘completely out of [his] system’.
An attendance in July 2023 indicates that although the accused was taking lithium and benztropine, he had not started taking the olanzapine.
By 1 August 2023, the accused was still not taking the olanzapine and believed he was not ill and did not need any medication but was taking lithium. He said he was ‘a king’ and a person with a special ability. A psychiatric registrar noted ‘grandiose delusions and persecutory delusions’ with an ‘impression’ of ‘schizoaffective disorder with ongoing psychosis’. On 17 August 2023, the accused said he had ‘the power to control [his] mind’ and that he was ‘on another level… out of this world’. He denied suicidal or homicidal thoughts, but was noted to be experiencing ‘mild grandiose delusions’. On 28 August 2023, another psychiatric registrar noted, similarly to their colleague at the start of August, that the accused had ‘grandiose delusions and persecutory delusions’ (relating to his mother), and recorded as an ‘impression’: ‘Schizoaffective disorder with ongoing psychosis [p]oor insight and non-adherence to antipsychotics’.
On 4 September 2023, a psychiatrist met with the accused and his mother and sister. The psychiatrist noted that the accused was still not taking olanzapine. The accused and his mother were having problems. The psychiatrist recorded as a ‘provisional impression’ ‘Schizoaffective disorder with possible [early warning signs]’ and noted that because accused was not taking antipsychotic medication he was ‘vulnerable for relapse of psychosis’. It seems that the problems between him and his mother included concerns she held as to what he was doing in the evenings and her accusations, which he denied, that he was ‘taking drugs’ and had had a mental illness.

C. The events of 7 and 8 September 2023

C.1 The leadup

On 7 September 2023, the accused met with his mental health clinician at lunchtime and discussed with her the restarting of antipsychotic medication. She did not feel concerned about any immediate risks.
On 7 September 2023 at 10.05pm, the accused sent a text message to his ‘hairdressing teacher’, which read:
I don’t understand but my mums negative energy is making me choke I can’t sleep or breathe properly, she’s gonna get me murdered but she’ll never murda my soul, and rich meaning dead or alive sooo see you soon
At 10.22pm, the accused conducted various ‘Google’ searches including for the terms: ‘Murders in Australia’; ‘Are murders typically committed by strangers’; and ‘Violent crime by Strangers and Non-Strangers’. He also looked extensively into accommodation options in or near the central business district of Melbourne.
The accused also withdrew $4,200 from a bank account that he held jointly with his mother.
On the morning of 8 September 2023, the accused packed his belongings into a white Toyota sedan, which was owned by his mother. His mother, having been awoken by the sound of a slamming screen door, asked the accused where he was going, which he declined to say. At the accused’s request, his mother retrieved his passport and provided it to the accused.
Shortly thereafter, the accused attended his workplace, the Sunshine Hospital café, where he worked as a storeman. He was due to start a shift at 8.00am. The accused had held this position for approximately 12 months, and was concurrently undertaking studies to become a hairdresser.
At 7.53am, the accused sent three text messages to his hairdressing teacher, one of which attached a photograph of himself holding the passport. The messages state:
I finally did it, impossible is possible, finally I have some freedom and peace
I’m safe and going to work, will keep calm as always
Believe and be patient I’ve passed the most diabolical exams, trust the process but I wanna go higher but I’ll most probably be dead and forgotten, I’m still pushing, I will never be good enough, I don’t understand god says I’m good enough but I’m mad and I want the highest position in the heavens
At 7.59am, the accused sent a further text message to his hairdressing teacher which read:
Think deep, improve believe and be patient. Spread Positive thoughts like fire, I’ve been cursed by my mother, no brain cells
At 9.33am and 9.36am, the accused sent two more text messages to his hairdressing teacher. Those messages state:
I can post the video they can’t delete it and its facts truth but I don’t wanna post it, I just wanna stay on earth realm and just do normal human things Don’t overthink it’s mental illness, I have mental illness
DEVIL WINS ?? DON’T TELL ANYONE OUR SECRET
At 10.05am, while still at work, the accused contacted his mental health clinician. Shortly afterwards, the accused told his supervisor that he was feeling unwell and needed to leave work. The accused then returned home.
On arriving home, the accused’s mother queried why the accused wasn’t at work. The accused stated that his mental health clinician had advised him to discuss some financial matters with his mother. The accused had wanted to move out of the family home due to tensions between himself and his mother. During this conversation, the accused insisted that his mother needed to repay him money that he believed he was owed.
At 11.27am, the accused’s mother sent him a text message which stated ‘Call me I will give you $4000’.
In the early afternoon, the accused received a booking confirmation for a hotel in Essendon. He then sent text messages to his supervisor, one of which stated ‘I quit forever ever, thank you all for doing business, peace’. The other messages included, variously, an inquiry about paying out his leave entitlements, and an apology for the abruptness of his resignation.
At 3.18pm, the accused checked into the Essendon hotel. At about 4pm, he spoke by telephone with his mental health clinician. The accused told his clinician that, following a dispute with his mother over missing money, his mother had reported her vehicle as stolen, the police had arrived at his workplace, and he decided to resign. The accused said that his mother had then transferred $4,000 to his bank account, and thrown his belongings out of the house. The accused refused to tell his clinician where he was, and denied that he was a risk to himself or to others. The accused insisted that he ‘just need[ed] some time alone’. He was ‘encouraged to take some time to research antipsychotics over the weekend’. The clinician, it seems, discussed the ‘situation’ with a consultant psychiatrist and recorded that ‘nil risks identified’.

At 5.21pm, the accused took a photograph of $100 notes spread across his lap, and of him holding his passport, sitting in the driver’s seat of his mother’s vehicle. He sent this photograph by text with messages to nine sex workers whose contacts were on his phone. Without setting out all of the messages, he referred to himself as ‘King [FB]’, and in most of them stated: ‘Need a bitch to fuck’.

C.2 The unlawful conduct

At 6.22pm, the accused drove his mother’s vehicle south along Elizabeth Street in Melbourne, before conducting a U-turn near Little Collins Street, and driving north back along Elizabeth Street. At the intersection of Bourke Street and Elizabeth Street, the accused turned into Bourke Street Mall and drove along the tram tracks slowing down to an almost complete stop as he approached the intersection of Bourke Street and Swanston Street. The accused was heard ‘hooting’ and making ‘laughy’ sounds. He revved the vehicle and accelerated heavily, entering the intersection of Swanston Street and Bourke Street against a red traffic light. The accused manoeuvred the vehicle sharply towards some pedestrians crossing the tram tracks. He struck three pedestrians with the vehicle, Paul Kardis, Shu Han Yang and Yuru Liang, with the force of the collision causing each of them to become airborne and land metres away from the site of impact. Each suffered serious injuries. Mr Kardis suffered a shattered pelvis, spinal fracture, bruising along his left leg, and head injuries. He also has no recollection of the incident or the events of the entire day leading up to it. Ms Liang sustained fractures to her shoulder, pelvis, knee and skull. Ms Yang suffered from fractures to her pelvis, neck and right foot, lacerations to her forehead, internal bleeding within her skull, and a severed left ear. She also suffered a seizure immediately after the collision and has no recollection of the incident. That action gave rise to the three charges of attempted murder.
The accused continued to drive along the tram tracks towards the intersection of Bourke Street and Russell Street, narrowly avoiding hitting a further four pedestrians. At this time, John Haasz was in his vehicle, a white Hyundai coupe, at the intersection of Russell Street and Bourke Street, waiting at the traffic lights for the vehicle in front of his to turn right, so that he could continue driving up Russell Street. As Mr Haasz entered the intersection, the accused drove through the intersection against a red traffic light. The accused’s vehicle hit Mr Haasz’s vehicle, with the impact of the crash causing Mr Haasz’s vehicle to collide with another vehicle, a silver Mazda wagon, pushing that vehicle into a light pole. Mr Haasz died as a result of injuries sustained in the collision, including a separation of the base of the skull from the first cervical vertebrae, severe chest injuries, fractures to multiple ribs, both clavicles and the pelvis. The severity of Mr Haasz’s injuries suggest that his death was ‘immediate’. The driver of the silver Mazda, Kevin Roshan, and his passenger, Mahatma Yandiguna, both sustained minor injuries as a result of the collision. That action gave rise to the charge of murder and the two charges of recklessly endangering life.

C.3 The aftermath

Shortly after the collision with Mr Haasz’s vehicle, a bystander approached the accused, who was sitting in his mother’s vehicle. The accused asked that bystander ‘Did I kill anyone?’ and offered the bystander a $100 note, which was declined. Another bystander said he found it ‘bizarre’ that the accused was ‘so calm’ and ‘seemed undeterred by the whole scene’.
A police officer then approached the accused, who exited the vehicle and climbed onto its roof. A second police officer arrived shortly afterwards. Despite being requested to do so, the accused refused to climb down from the vehicle’s roof. The police officers forcibly removed the accused from the roof and placed him under arrest.
The accused was taken to East Melbourne Police Station, where a third police officer sought to caution the accused and provide him with his rights. The accused did not acknowledge the caution and rights, repeatedly saying ‘Devil worship’ and then saying ‘Genocide’ when asked if he understood. When asked for his name and to confirm whether he was FB, the accused stated ‘Devil’ and ‘It’s King [FB]’. He was asked where he was living, to which the accused eventually replied ‘Long time on an infinite dimension’.
He was transferred to Melbourne West Police station where the accused was assessed by paramedics and then a forensic medical officer, who deemed that he was unfit for interview. When asked what medication he was taking, he replied lithium but that he ‘hadn’t been taking it’. He later said to a police officer: ‘In six years no one has spoken to me nicely. I had to kill someone for them to be nice’.
The vehicle driven by the accused was seized by police. $6,200 in $100 notes were found strewn across the inside of the car. An examination of the car conducted on 11 September 2023 also located three mobile phones, three driver’s licences in the accused’s name, a passport and other identification cards in the accused’s name, three notebooks, a black artbook, and a drawing depicting ‘heaven and hell’.

D. Medical opinions and the defence of mental impairment

As noted above, the issue is whether, at the time the accused was driving down Swanston Street and at the victims, he was suffering from a mental impairment that had the effect that:
he ... did not know that the conduct was wrong (that is, he ... could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).[3]
[3]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20(1)(b).
If that is so, then he ‘must be found not guilty because of mental impairment’.[4]
[4]Ibid s 20(2).
The accused was assessed by two forensic psychiatrists, Associate Professor Carroll and Dr Trainor, for the purpose of preparing reports on the availability of a defence of mental impairment in these proceedings. Both are experienced experts in the field.
The accused told Dr Trainor that, at the time of the alleged offending, he experienced ‘voices commanding [him] to hit the accelerator’. Dr Trainor opined that the accused’s motive for the alleged offending is not clear, but considered that there ‘are no coherent non-psychotic reasons for him to have engaged in the conduct’, and that ‘his relapse led to him being significantly disinhibited, feeling both excessively persecuted and grandiose’. He concluded that the accused likely felt justified in committing the alleged offences, in a mindset ‘clouded by severe psychotic and manic symptoms’, and that because of his illness, the accused was impaired in his ‘ability to reason with a moderate degree of sense of composure about the wrongfulness of his actions as perceived by a reasonable person’. In his oral evidence, he emphasised that the accused was, at the time, ‘detached from reality’, and noted that even after the alleged offending had occurred, the accused didn’t behave like someone who thought that they had done something wrong:
You know, he was quite serene, he was quite calm, he seemed quite non-plussed by everything. So, I think all the evidence taken together suggests that he just wasn’t reasoning with a moderate degree of sense and composure about the wrongfulness of his actions.
Dr Trainor also said:
But I think in a moral sense, given that in his opinion he’s a king and he’s a devil and he can ... act on impulses ... as he wishes, ... because of his mental illness, he feels that morally he’s entitled to do that. And other people will recognise him as a king and they’ll think that it’s morally okay, too.
Associate Professor Carroll considered that the accused ‘struggled to give a clear linear account of the days leading up to the alleged offending or of the offending itself’. The accused told Associate Professor Carroll that he had been planning on travelling to the USA to meet and marry Jenesis Sanchez, who is apparently the former partner of deceased rapper XXXTentacion. At first, the accused said that he committed the alleged offences out of ‘boredom’, before explaining that he found it ’exhilarating’ to accelerate the vehicle, and that his decision to drive at the pedestrians was because ‘People are dumb, they don’t listen’. Associate Professor Carroll records that the accused ‘denied feeling angry with the actual specific victims and denied thinking they would die’, and that when the accused queried whether he had killed anyone in the aftermath of the alleged offending, he did so because he ‘hit someone… [he] didn’t want anyone to get hurt’ before explaining that his actions were intended to bring about a ‘New World Order’.
Associate Professor Carroll opined that it was not possible to obtain a narrative account from the accused which would ‘accurately and reliably’ reveal the underlying motive for the alleged offending, but that it is ‘very clear’ that the accused was, at the relevant time, in a ‘severely psychotic and manic state, afflicted amongst other things by grandiose and religiose delusions’. He concluded:
Importantly, these psychotic symptoms had a profound impact on his appraisal of his place in the world (indeed, the whole of creation) as compared to other members of the public: he considered himself to have supernatural powers and entitlements that justified his acting on powerful, destructive impulses.
It is clear that he knew the nature and quality of the conduct, i.e. that he was driving in such a way that was likely to bring about the death of other people.
It is likely that he maintained some awareness that his conduct was legally wrong. However, I consider it more likely than not that he felt morally justified in carrying out his conduct because of his overpowering delusional beliefs.
In my opinion therefore, at the relevant time he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong. This profound defect in moral reasoning was entirely attributable to the acute symptoms of schizoaffective disorder.
He was even more emphatic in his oral evidence. He confirmed that the Google searches relating to murder were likely related to the immediately-preceding expressed concerns about his mother murdering him, and noted the diagnosis of a schizoaffective disorder, rather than simply schizophrenia, was appropriate because the accused was not only delusional but was also manic:
… not only was he psychotic, he was also manic. You’ve got a man who had grandiose delusions on a cosmic scale and I think it’s hard to underestimate (sic) quite how huge these were. He had religiose delusions. He was in the grip of these.... His thoughts were racing and they were disorganised, consistent with someone in a psychotic, manic state.... Now, at the relevant time, [the accused’s] moral framework was totally distorted and pathological because of these cosmic, grandiose delusions.... He was totally without any reflective capacity at the relevant time.... He absolutely could not reason with anything approaching anywhere near a moderate degree of sense and composure.... I am strongly of the view that [the accused] very clearly meets the eligibility criteria and that’s based on a long interview with him, exhaustive analysis of all of the relevant materials and on the background of having worked with patients with severe psychosis now for some 30 years.
...
His thoughts were a disorganised mess and he simply could not reason with a moderate sense and composure, as to whether what he was doing was wrong. And that was entirely attributable to the relapse of his schizoaffective disorder, which had been untreated for quite some time by that point.
...
I think the most plausible explanation is ... that he abruptly switched into a homicidal angry state, feeling in some way possessed by a demon and/or enabled by his delusional belief that he’s an all-powerful god or king.

E. Conclusion – the defence is made out

My immediate concern was how it could be that the accused could know that his acts were legally wrong yet not know that his acts were wrong in the statutory sense, set out again below:
he ... did not know that the conduct was wrong (that is, he ... could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).[5]
[5]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 20(1)(b).
I raised this with Associate Professor Carroll. He said that the accused did not ‘know’ that his conduct was ‘wrong’ in any ‘meaningful sense’. He noted that the concept of ‘knowledge of moral wrongfulness’ in the context of mental illness was complex – what does it means for a delusional person to ‘know’ the rights or wrongs of something? It was apparent that he interpreted the concept of ‘wrong’ in this passage of the legislation where it first appears as being defined by the words in the parentheses that follow immediately. That is, that a person will ‘not know’ that conduct is ‘wrong’ for the purpose of this part of the legislation if, but only if, he or she is unable to reason with a moderate degree of sense and composure about whether their conduct, as perceived by reasonable people, was wrong. At least in the circumstances of a case such as this, I consider that this approach is correct. If someone feels justified in committing or compelled to commit a crime that they know is legally wrong in the sense that they may well be arrested after having done it, and their sense that their behaviour is justified is due to a serious mental illness that distorts their thinking process or belief processes, the question reduces to whether they retained the ability to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong in a ‘moral’ or more general sense where there can be ‘right’ and ‘wrong’ behaviour. This reflects the prior common law position recorded in Stapleton v The Queen,[6] where Dixon CJ, Webb and Kitto JJ said, quoting with approval Pope’s Treatise on the Law and Practice of Lunacy:
[T]hat person will only be criminally responsible who, at the moment of committing the criminal act, is capable of remembering that the act is wrong, contrary to duty, and such as in any well-ordered society would subject the offender to punishment. It is by a reference, such as this, to principles of general morality rather than to the enactments of positive law that the courts of this country have been content to test criminal responsibility in individual cases.[7]
[6](1952) 86 CLR 358.
[7]Ibid 374.
I otherwise accept the opinions expressed by Dr Trainor and Associate Professor Carroll. I find that the accused has a long-standing schizoaffective disorder that, when symptomatic, causes psychosis including delusions of grandeur and distorted thinking, and that his condition becomes florid particularly when untreated. I find that on 8 September 2023, when he deliberately drove at pedestrians and other persons with the intention of causing them serious injury or death, he was in the thralls of an acute flare-up in his mental illness that meant he had no ability to reason with a sense of composure about the rightness or wrongness of his conduct and, indeed, that he believed that his conduct was morally justified.
For this reason, I will direct that a verdict of not guilty because of mental impairment be recorded on the indictment.

F. The statement made to the paramedics

When the accused was asked by the paramedics that night in the cells why he had done what he did, the accused said it was because people ‘don’t listen’ to him. Prior to the parties agreeing that the defence of mental impairment was established and the accused was facing a trial by jury, the accused objected to that evidence being led on the grounds that it was hearsay and was not admissible as evidence of an admission because, having regard to the circumstances in which it was obtained, it would be unfair to the accused to use the evidence.[8]
[8]See: DPP v FB (Ruling No 1) [2025] VSC 161; Evidence Act 2008 (Vic), s 90.
This question and answer was, however, referred to by both Associate Professor Carroll and Dr Trainor in their reports. Both reports were adopted by their author and tendered, one by the Crown and one by the accused. In this way, evidence of the question and answer was led without objection. Neither doctor said in their reports what importance, if any, they placed on that particular question and answer. A nice issue may have arisen if that question and answer were fundamental to the opinion formed by either doctor, as it may be that the doctors’ evidence of the question and answer was still not able to be used to establish its truth.[9] This is not a matter that I need further to consider, however, as Associate Professor Carroll made it clear in his oral evidence that his opinion was not dependent on that piece of history; indeed, that statement tended only to confirm his opinion that the accused was not able at the time, by reason of his illness, to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.

G. A supervision order and a suppression order

[9]Cf Evidence Act 2008 (Vic), s 60(3).

Having been found not guilty because of mental impairment, the Court must either declare that the accused be liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or order that he be released unconditionally.[10] I have not yet heard the parties on this, but my provisional view is, unsurprisingly, that the accused should be made subject to a supervision order and committed to custody. Before that may be done, a process must be gone through by which the facilities or services necessary for the order are identified.[11]
[10]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 23.
[11]Ibid s 41, 47.
Be that as it may, it is likely that, at some time in the future and depending on his mental condition, attempts will be made to rehabilitate the accused including by allowing him back into the community initially at least on certain conditions. There is a risk that if the accused is identified, then the ability for him to rehabilitate is lessened and the risk that he might suffer a relapse is increased, which would not only be contrary to his interests but contrary to the interests of society as a whole. So that the prospects of rehabilitation of persons in the accused’s position may be increased, s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 provides that the Court, if satisfied that it is in the public interest to do so, may order, among other things, that any information that might enable an accused to be identified must not be published except in the manner and to the extent (if any) specified in the order.
The accused sought such an order. In support of that application, Associate Professor Carroll gave evidence that ‘it is likely that [the accused] faces a long and challenging rehabilitative journey over the years ahead’ but that ‘ultimately, this will likely involve a very slow and graduated return to community living’ and that his ‘long-term prospects for rehabilitation will be significantly compromised’ by being publicly associated with these events and ‘would make his eventual reintegration into the community much more difficult’. The Crown did not oppose the making of such an order.
I am satisfied that it is in the public interest to make a suppression order that protects the accused’s identity.

H. Disposition.

I will, at an appropriate time:
(a)direct in accordance with s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that a verdict of not guilty because of mental impairment be recorded;
(b)subject to hearing further from the parties, declare in accordance with s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the accused is liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and
(c)make the orders necessary to obtain a report on the accused’s mental condition under s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and a certificate of available services under s 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

I will hear from the parties as to the precise forms of any order and when exactly each order should be made.
I will make an order that, until any further order, any information that might enable the accused to be identified, including without limitation his name or the address at which he is living or residing, not be published.

[2025] VSC 378

30 June 2025