Director of Public Prosecutions v Kakar
[2023] ACTSC 236
•31 August 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kakar |
Citation: | [2023] ACTSC 236 |
Hearing Date: | 15 February 2023 |
Decision Date: | 31 August 2023 |
Before: | Baker J |
Decision: | See [214] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – murder – attempted murder – diagnosis of schizophrenia – plea of not guilty by reason of mental impairment – prosecution agrees special verdict should be entered – whether procedure under s 321(2) of the Crimes Act 1900 (ACT) a ‘trial’ – whether accused mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT) – whether appropriate to make an order for detention – assessment of nominated term – whether mental impairment to be taken into account in determination of nominated term |
Legislation Cited: | Crimes Act 1900 (ACT) Pt 13, ss 12, 14, 27, 302, 307, 308, 321, 321(2), 321(2)(b), 324, 324(2), 324(2)(a), 428C Crimes Act 1914 (Cth) s 20BJ Crimes (Sentencing) Act 2005 (ACT) ss 7, 7(a)-(b), 33, 33(1)(a), 33(1)(i)-(f), 33(1)(p), 33(1)(w) Criminal Code 2002 (ACT) ss 27, 28, 44, 44(9) Criminal Law Consolidation Act 1935 (SA) s 269O(2) Legislation Act 2001 (ACT) Mental Health Act 2015 (ACT) Pt 7, ss 180, 180(3), 183, 183(2), 308 Supreme Court Act 1933 (ACT) Pt2, ss 68A, 68B, 68C, 68C(3) |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions v Connors [2022] ACTSC 279 R v Aleer [2016] ACTSC 75 R v Andison [2021] ACTSC 32 R v Aranyi [2013] ACTSC 169; 278 FLR 409 R v Barker [2014] ACTSC 374 R v Behari [2011] SASC 111; 110 SASR 147 R v Chemhere [2021] ACTSC 45 R v Cross [2017] ACTSC 91; 319 FLR 288 R v Edmund Thomas Leong [2010] ACTSC 22 R v G, H [2019] SASCFC 71; 134 SASR 461 R v Gabor Laszlo Aranyi (No 2) [2013] ACTSC 176 R v Goodfellow 33 NSWLR 308 R v Griffiths (No 2) [2020] ACTSC 118 R v Griffiths [2020] ACTSC 51 R v Jackson [2021] ACTSC 120; 360 FLR 1 R v Kelly [2018] ACTSC 332; 87 MVR 127 R v Klobucar (No 2) [2016] ACTSC 53 R v Matthews [2022] ACTSC 105 R v Mkpo-Uto Aniefiok Edet [2020] ACTSC 276 R v Ophel [2019] ACTSC 325 R v Pahl [2017] ACTSC 68; 266 A Crim R 41 R v Robinson [2004] VSC 505; 11 VR 165 R v Singsathitsuk [2021] ACTSC 26 R v Smith [2012] ACTSC 146; 269 FLR 233 R v Steurer [2009] ACTSC 150; 3 ACTLR 272 R v Verdins [2007] VSCA 102; 16 VR 240 R v Walker (No 2) [2021] ACTSC 46 Veen (No 2) [1988] HCA 14; 164 CLR 465 |
Texts Cited: | Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth laws (ALRC Report 124, August 2014) Explanatory Memorandum, Crimes (Amendment) Bill 1994 (ACT) Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT) Greg James QC, Review of the New South Wales Forensic Mental Health Legislation (Report, August 2007) Law Reform Commission of Western Australia, Review of the Law of Homicide (Project 97, September 2007) New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences (Report 138, May 2013) New South Wales Law Reform Commission, Report 80 (1996) – People with an Intellectual Disability and the Criminal Justice System (December 1996) Presentation Speech, Crimes (Amendment) Bill 1999 (ACT) (Hansard, 22 April 1999, p 1126) South Australia Sentencing Advisory Council, Mental Impairment and the Law: A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (November 2014) |
Parties: | Director of Public Prosecutions ( Crown) Wajid Kakar ( Accused) |
Representation: | Counsel A Williamson SC ( DPP) T Lee ( Accused) |
| Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Accused) | |
File Number: | SCC 46 of 2022 |
BAKER J:
Introduction
1․On 20 February 2021, the accused attacked three people inside his home. Two of the victims were his housemates, and the third was a guest of one of those housemates. In a terrifying assault, the accused repeatedly stabbed and chopped at the victims with the knife and a sharp object that appeared to be a meat cleaver. One of the victims died as a result of the injuries which the accused inflicted. The other two victims suffered multiple critical injuries, but were saved by emergency surgery.
2․The accused now stands charged with the following three offences:
(i)Count 1 (CC 2021/2238) alleges that the accused murdered Michael Allen Clement Williams.
(ii)Count 2 (CC 2021/2239) alleges that the accused attempted to murder Simon Phillip Tyler; and
(iii)Count 4 (CC 2021/2240) alleges that the accused attempted to murder Asha Bixenta Miller.
3․In the alternative to the counts of attempted murder, the accused is charged with two charges of intentionally inflicting grievous bodily harm (Count 3 and Count 5).
4․The accused has entered pleas of not guilty by reason of mental impairment to all counts on the indictment. There is no issue as to the accused’s fitness to plead. The prosecution agrees that it is appropriate for the Court to enter special verdicts of not guilty by way of mental impairment, with respect to counts 1, 2 and 4. Section 321(2)(b) of the Crimes Act 1900 (ACT) requires me to enter these verdicts if I am satisfied that they are “appropriate”.
5․For the reasons outlined below, I have concluded that the entering of special verdicts of not guilty by way of mental impairment are appropriate in respect of these counts. Having so concluded, s 324 of the Crimes Act requires me to either order the accused be detained in custody for immediate review by the ACT Civil and Administrative Appeals Tribunal (“ACAT”) under s 180 of the Mental Health Act 2015 (ACT); or, if it would be more appropriate taking into account the criteria for detention in s 308 of the Crimes Act, to order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under Part 7.1 of the Mental Health Act. There is no dispute that the appropriate order is that the accused be detained in custody for immediate review.
6․Section 302 of the Crimes Act then requires me to indicate the sentence that is the “best estimate” of the sentence I would have considered appropriate if the accused were a person who had been found guilty of those offences. As discussed below, this task is difficult. For the reasons outlined below, I have concluded that the appropriate nominated terms are as follows:
(i)Count 1: A nominated term of 25 years’ imprisonment.
(ii)Count 2: A nominated term of term of 15 years’ imprisonment.
(iii)Count 4: A nominated term of term of 15 years’ imprisonment.
7․The sentences should be aggregated, so that counts 2 and 4 are accumulated on Count 1 by two and a half years respectively, leading to a “best estimate” of the aggregate sentence that would have been imposed of 30 years’ imprisonment, to date from 20 February 2021.
Background
The offences
8․The facts of the incident are set out in the Prosecution Case Statement filed 21 April 2022.
9․In February 2021, the accused was living in a share house in Page with Michael Williams, Simon Tyler and Nasoraldeen Abdullah. Each of the tenants rented separate bedrooms, but shared the common kitchen and dining areas.
10․The tenants had not known each other before moving into the share house. The accused, Mr Tyler, and Mr Abdullah each moved into the house in the 12 months prior to the incident. Mr Williams had lived in the house for about 4 years.
11․Although the tenants did not regularly interact with each other, the accused would sometimes speak to Mr Abdullah about his frustration regarding the difficulties that he was having in obtaining approval to travel to Afghanistan to visit his family. Both Mr Tyler and Mr Abdullah reported that the accused could sometimes be aggressive and confrontational.
12․In the days immediately prior to the incident (18 and 19 February 2021), the accused stayed in his bedroom, barely interacting with the other residents. He played loud music and made voice recordings, which disturbed the other residents.
13․On the evening of Friday 19 February 2021, the accused, Mr Williams, and Mr Tyler were at home. Mr Abdullah left the house at about 7:30pm and did not return that night. Ms Asha Miller arrived at about 8:30pm in the evening for a date with Mr Tyler. She stayed with Mr Tyler in his bedroom overnight.
14․The following morning (20 February 2021), shortly before 8:45am, the accused attacked Mr Williams with a sharp object, likely a meat cleaver. The accused inflicted multiple wounds to Mr Williams’ arm, head, neck and back, causing Mr Williams to suffer extensive blood loss. The injuries inflicted caused fractures to Mr Williams’ skull and spine and nearly severed his spinal cord. Mr Williams died as a result of his injuries.
15․At about 8:45am, Mr Tyler woke up to loud noises in the house. The accused forcefully opened Mr Tyler’s bedroom door, carrying a large butcher’s knife and a meat cleaver. He said words to the effect of “I’m going to kill you” or “I’m going to slash you”.
16․The accused then attacked Mr Tyler and Ms Miller with the knife and meat cleaver. Mr Taylor’s fingers were severely cut when he instinctively raised his hands to protect his head and face. Mr Tyler pleaded for his life, saying “please, no”. The accused continued to strike Mr Tyler with the knife and meat cleaver in his head, wrists, hands, and body, causing 44 separate major lacerations and acute blood loss. Mr Tyler later described the attack as “like being in a horror movie”. At one point, Ms Miller looked in a mirror. The lacerations inflicted by the accused were so deep that she could see part of her skull.
17․When the accused’s attention was focussed on Ms Miller, Mr Tyler ran out of the house and across the street to a neighbour’s house to obtain help. He was bleeding profusely. The neighbour contacted police and provided first aid.
18․The accused then briefly left Mr Tyler’s bedroom. Ms Miller attempted to hold the door shut to prevent him from returning. However, the accused forced his way into the bedroom and dragged Ms Miller to the kitchen.
19․While in the kitchen, the accused struck Ms Miller in the torso, head, back, neck, arms and hands with the meat cleaver. Ms Miller lay on the kitchen floor in a curled-up position and tried to protect herself with her arms. She pleaded with the accused to “stop”. At one point, the accused’s knife became lodged in her neck. The accused grabbed the implement and used his foot as leverage to extract the knife from Ms Miller’s neck.
20․The accused then used a knife to injure himself. He cut the front of his neck, causing a laceration to his trachea. He also stabbed himself in the abdomen, causing two lacerations to his bowel.
21․A second neighbour saw Mr Tyler and approached the house. The accused walked out the front door towards the neighbour, holding the meat cleaver, and said “that’s me” or “it’s me”. The neighbour ran away from the house. The accused, still holding the knife and meat cleaver, followed the neighbour out to the road, before returning to the house.
22․Police arrived at the house at about 9:04am. On their arrival, they heard grunting sounds from the front of the house and saw the accused walking across the front yard toward the driveway. The accused was holding a meat cleaver in his right hand and a large kitchen knife in his left hand. The accused was bleeding significantly from the wounds which he had inflicted to his throat and abdomen.
23․Police yelled at the accused to drop the meat cleaver and knife. The accused ran directly at police. Police discharged a Taser in response. The accused fell to the ground, but quickly regained his footing and continued moving towards police. After the accused was tasered again, he fell to the ground and dropped the meat cleaver, although he continued to hold the knife. While repeatedly yelling at the accused to drop the knife, police discharged a Taser several more times, temporarily incapacitating the accused. Using a riot shield to restrain the accused, police forcibly removed the knife from the accused’s hand and handcuffed him. Police immediately commenced first aid and requested paramedic assistance for the accused.
24․When police entered the house, they found Ms Miller on the kitchen floor in a pool of blood. She had suffered several major lacerations, fractures to her skull and spine and massive blood loss as a result of the attack. Police subsequently located the body of Mr Williams in his bedroom. Mr Williams had sustained multiple lacerations to his head and neck and displayed no signs of life. Paramedics confirmed that he was deceased.
25․Mr Tyler and Ms Miller were treated by paramedics and transported to hospital, each in a critical condition. Both required several emergency surgeries and reconstructive procedures. Each required multiple blood transfusions to survive. Mr Tyler was not expected to live. There is no doubt that Mr Tyler and Ms Miller would have died without surgical intervention.
26․Mr Tyler and Ms Miller will each have prominent physical scars for the rest of their lives and will inevitably suffer ongoing psychological trauma as a result of the incident.
The Accused
27․The accused is a 37-year-old man. He is married. The accused has reported that his wife and children currently live in Pakistan, although he has provided conflicting information about personal details such as when he was married, how many children he has, their ages and their genders.
28․The accused has reported that he was born in Afghanistan and lived there until he was 14 or 15 years old before moving to Pakistan (although he told another clinician that he was born in Pakistan). He reported that he has ten younger siblings (seven younger sisters and three younger brothers). The accused said he was not happy as a child and described his youth in Afghanistan as a “hard life”.
29․The accused stated that his father moved his family from Afghanistan to Pakistan due to problems with the Taliban regime. The accused lived in Pakistan for some time as an “Afghani exile”. He did not attend school, but worked to support his family. He is functionally illiterate.
30․The accused said that growing up, his father ran a general goods shop and later became a dairy cow farmer, while his mother was a housewife. The accused has reported that neither of his parents had psychiatric, medical or substance abuse problems.
31․Although the accused had previously told immigration authorities that his father was beheaded by the Taliban, he told psychiatrists in connection with the present proceedings that he had a good relationship with both of his parents and that he speaks to them regularly on the phone. He also denied being exposed to personal or other trauma. When asked about why he gave immigration authorities false information, he explained that he had lied because he did not want to be deported back to Afghanistan.
32․The accused was 25 years old when he left Pakistan to seek asylum in Australia. He paid an agent $10,000 and travelled to a number of countries in South-East Asia before travelling by boat to Christmas Island in 2011. He was then detained on Christmas Island in immigration detention until 2012.
33․The accused obtained a temporary protection visa and lived in Melbourne between 2012 and 2013 or 2014. In 2014, the accused’s visa was revoked and he spent the next three to four years in various immigration detention facilities across Australia. In 2017, the accused was granted a further temporary protection visa and returned to Melbourne. The accused reported that he has worked various jobs since being released from detention, and that he regularly sends money to his family overseas.
34․The accused moved to Canberra around February 2020, and worked various jobs as a labourer. The accused had been unemployed for about a month prior to the incident, although he reportedly worked for one to two days at a fruit and vegetable shop just prior to the offending, around 15 February 2021.
35․In the days prior to 20 February 2021, the accused made several videos which he posted on Facebook. These videos are not in evidence in these proceedings. However, the videos are referenced in the psychiatric reports discussed below. As detailed below, the psychiatric reports record that the accused appears “distressed” and “paranoid” throughout these videos.
36․The videos were seen by a friend of the accused, Mr Rafiullah Passon. Mr Passon had met the accused in 2011 in a detention centre and had lived with the accused in Melbourne in 2018. Mr Passon’s statement was not in evidence in these proceedings, but its content is also described in the psychiatric reports.
37․As outlined further below, Mr Passon phoned the accused after he viewed the videos online. Mr Passon had several phone calls with the accused between 16 and 18 February 2021. He reported that the accused’s speech was confusing and he sounded scared. On 18 February 2021, Mr Passon booked a bus ticket for the accused to come to Melbourne, apparently at the accused’s request. The accused did not get on the bus. The following day, the accused spoke to Mr Passon about suicide. Mr Passon provided the accused with a suicide hotline number and called the police. The police attended upon the accused to conduct a “welfare check” and provided him with a suicide hotline phone number and contacts for support services. Mr Passon subsequently spoke to the accused to confirm that the police had visited him.
Psychiatric Reports
Introduction
38․The Court received four expert reports in relation to the accused. Those reports specify that the experts were of the unanimous view that the accused has a defence of not guilty by reason of mental impairment available under s 28 of the Criminal Code2002 (ACT).
39․Forensic Psychiatrists Dr Richard Furst and Professor David Greenberg each expressed the opinion that, at the time of the incident, the accused was likely suffering from a pre-existing mental illness (a psychotic disorder, most likely schizophrenia), which was of such a nature that he was unable to control his conduct and that he did not appreciate that the conduct was wrong. Professor Greenberg further considered that the accused did not know the nature and quality of the conduct in which he engaged.
40․At the time of the incident, the accused was a heavy user of cannabis and alcohol. As outlined further below, a defence of not guilty by reason of mental impairment is not available where a condition results from the reaction of a healthy mind to extraordinary external stimuli, such as cannabis or alcohol. For this reason, Professor Iain McGregor, a Professor of Pharmacology, was asked to consider the relationship between the accused’s conduct and his cannabis and alcohol use. Professor McGregor found no obvious indication that the accused’s cannabis and alcohol use would have precipitated the “acute psychotic state” described by Dr Furst and Professor Greenberg. He ultimately deferred to the opinions of Dr Furst and Professor Greenberg, who each concluded that the psychosis resulted from mental illness, rather than from substance use.
41․These opinions are central to the determination of the issues that arise for my determination, namely, whether it is “appropriate” for a verdict of not guilty by reason of mental impairment to be entered, and, if so, the consequential orders that should be made. For this reason, it is necessary to summarise these reports in some detail.
Report of Dr Richard Furst
Introduction
42․Dr Furst prepared a report dated 8 January 2022 at the request of the accused’s legal representatives. This reported was admitted into evidence without objection.
43․Dr Furst assessed the accused at the Alexander Maconochie Centre (AMC) via audio-visual link on 25 November 2021 for approximately 60 minutes. Dr Furst was also provided with the Police Statement of Facts, the accused’s medical records from ACT Health and the ACAT, the video recordings made by the accused prior to the alleged offending and transcripts of these recordings, and an audio recording of a forensic procedure that had been performed at the AMC.
Interview with the accused
44․The accused told Dr Furst that he did not remember if he believed someone was going to hurt him or if he was hearing voices around the time of the incident. He did not remember if he was worried about the government at the time. He stated he thought “the TV was talking about me…very scary” for one to two weeks prior to his arrest and that “the Afghan president said you broke the Muslim law… I saw him on Facebook…he said I would be deported to Afghanistan and killed… very scary”. The accused did not recall having any animosity towards his housemates. He could not explain why he injured himself during the course of the incident.
45․Dr Furst described the accused’s affect during the interview as “restricted”. However, the accused was lucid and did not appear to be suffering from delusions or hallucinations. The accused reported feeling depressed but not suicidal. Dr Furst was of the view that the accused lacked insight into his mental illness and the reasons for his conduct.
Video recordings
46․Dr Furst reviewed the video recordings made by the accused prior to 20 February 2021. Dr Furst noted that in those video recordings, the accused gave “rambling” accounts, in English and Urdu, with “clear paranoid themes/delusions”. The accused described feeling stressed and fearful of being killed. In particular, the accused made reference to people who would “give him an injection” to poison and kill him and said “you’re killing me… why killing me?”.
Psychiatric History
47․Dr Furst noted that the accused had no apparent mental health problems in his childhood or in his early adult life. He sought psychological treatment while in immigration detention in 2014. The accused has no history of medical problems and indicated that he was not aware of any family history of psychiatric illness.
Review of ACT Health Records
48․Dr Furst reviewed the accused’s medical records, including records of treatment at Canberra Hospital after the offending; mental health orders; a report to ACAT; and records from his admission to the Dhulwa Mental Health Unit between April and October 2021, which included reports made by the accused’s treating psychiatrist Dr Neil Wareing.
49․Dr Furst recorded that:
(i)Dr Mandy Evans, a psychiatrist at the Canberra Hospital, noted the accused’s paranoia and mood elevation (among other observations) and assessed the accused as having a psychotic illness. This illness was potentially long-standing, given the reports of his persecutory beliefs in the days and weeks prior to the incident. The accused was prescribed antipsychotic medication.
(ii)Dr Wareing’s records stated that the accused held persecutory beliefs and delusions for several days prior to the incident which persisted in the months following his arrest. Dr Wareing’s assessment of the accused (conducted with an Urdu interpreter) recorded that the accused believed that the Australian Government had sent videos to the Afghan Government of him disobeying the Islamic rules; that the accused had seen videos on Facebook in which people discussed this disobedience and their intention to kill him when he returned to Afghanistan; and that the accused had seen videos in which the Afghan Government discussed him eating haram food. Dr Wareing concluded that these beliefs (including the accused’s interpretation of television news in a personal way), indicated that the accused had “abnormal and probably delusional origins. Dr Wareing noted that these beliefs had resulted in “escalating anxiety and preoccupying concerns about being sent back to Afghanistan and being killed.” Dr Wareing also noted that the accused had reported having had minimal alcohol and cannabis consumption in the days preceding the incident, suggesting his conduct was not related to the consumption of alcohol or drugs.
Dr Furst’s opinion
50․Dr Furst provided the following clinical opinions with respect to the accused:
(1)At the time of the incident, the accused was suffering from a mental impairment as defined in s 27 of the Criminal Code. Specifically, the accused was suffering from psychosis and had developed “persecutory delusional beliefs” about which he was “ruminating” in the days preceding the offending.
(2)The accused meets the DSM-V diagnostic criteria for schizophrenia and alcohol/substance use disorder.
(3)Noting the evidence of paranoia in the days or weeks prior to the offending (including reports from Mr Passon and the accused’s video recordings), the accused’s mental impairment pre-existed the incident.
(4)The accused knew the nature and quality of his conduct; however, he was “unable to reason … with a moderate degree of sense and composure as to whether his conduct … was wrong” due to his persecutory beliefs regarding the Australian and Afghan Governments. The video recordings made by the accused “illustrate the depth of this paranoid and illogical thinking, stemming from his psychotic illness”. Additionally, the accused was unable to control his conduct at the time of the offending due to his heightened state of paranoia. Dr Furst noted that the accused’s behaviour at the time and police observations that he was difficult to subdue was also consistent with these conclusions.
51․Dr Furst was of the view that the accused will require long-term psychiatric rehabilitation and ongoing antipsychotic medication (recommending a “higher potency” antipsychotic). He further recommended that the accused receive drug and alcohol counselling. Dr Furst considered that deportation would impact the accused’s long-term treatment and rehabilitation options and expressed the opinion that a release that enabled the accused to return to his family in Pakistan may be the most viable community-based option.
Report of Professor David Greenberg
Introduction
52․Professor Greenberg prepared a report dated 23 August 2022 at the request of the Director of Public Prosecutions.
53․Professor Greenberg conducted psychiatric assessments of the accused via audio-visual link on 12 August 2022 and 17 August 2022. He conducted a telephone interview with the accused’s brother on 11 August 2022. Professor Greenberg also had available to him the Police Statement of Facts; transcripts of recorded conversations with the victims and associates of the accused; statements of Mr Passon and the police officer who attended the accused on 19 February 2021; body worn camera footage; immigration documents; the psychiatric report of Dr Furst dated 8 January 2022; records of ACT Mental Health, Justice Health and Drug and Alcohol Services; a toxicology certificate of analysis; a 360-degree scan of the crime scene; and photographs of the victims’ injuries.
54․Professor Greenberg noted he was not provided with medical records from two hospitals in Melbourne nor from the Asylum Seeker Resource Centre (which provides clinical services to asylum seekers). He also noted the accused reportedly had a psychiatrist and psychologist in Melbourne between 2013 and 2015, whose records he did not have access to.
Account of offending in first interview on 12 August 2022
55․The accused told Professor Greenberg that he did not remember anything about the incident on 20 February 2021. When asked to recall the last memories he had prior to the incident, the accused gave a “vague description” of working in Canberra in construction, and could not remember any further details about his employment history. When asked what he did while unemployed, he stated “Just stayed in room. Nothing”.
56․Later in the interview, Professor Greenberg asked again about the incident. The accused repeatedly stated that he did not remember anything and that his first memory was “I wake up in hospital”. When asked if he felt that someone or something was hurting him or trying to poison him in the period preceding the incident, the accused said he did not know. Professor Greenberg explained to the accused that the allegation was that he slashed the victims with a knife, and asked if he recalled feeling angry at the time. The accused again responded that he did not know.
57․Professor Greenberg asked the accused if he recalled making videos of himself and uploading them on Facebook. The accused said “I didn’t remember the video…I was a very scary. I didn’t know what I say…”.
58․Professor Greenberg asked the accused if he remembered speaking to Mr Passon on the phone in the days prior to the incident. The accused replied “I didn’t say anything. I tell him I’m stressed”. When asked why he was stressed, the accused stated “Don’t know. I was feeling no good. Thinking no good. Sitting in room. Not eating”. He did not know or remember why he was “no good” at that time. He could not recall why he asked Mr Passon to buy him a bus ticket to Melbourne.
59․The accused recalled that the police attended his residence on 19 February 2021 and provided him with a phone number to contact mental health services. He recalled phoning the number but said that there was no response.
60․When asked about his drug and alcohol use in the lead up to the incident, the accused said he was smoking 10 – 15 “cigarettes” of cannabis “every day [for] many years”. When asked about the effect of cannabis, the accused said “Just quiet and sit”. The accused also reported having drunk 5-6 “pack” of whiskey daily. He denied using other illicit substances or taking any medication during this period.
61․When asked about his relationships with his housemates, the accused stated “Everything good”.
Account of offending in second interview on 17 August 2022
62․Professor Greenberg interviewed the accused again on 17 August 2022, on this occasion with the assistance of an interpreter.
63․In this interview, the accused again claimed he did not remember anything prior to waking up in hospital. When asked about his last memory before this, he recalled two police officers attending his house. When asked why police officers attended his house, he said “I don’t know. Rafiullah [Mr Passon] sent them”. When asked how he was feeling in the period prior to the incident, he stated “I don’t remember, feeling nothing”.
64․In response to questions from Professor Greenberg, the accused responded that he did not remember:
(a)the videos he made and uploaded to Facebook;
(b)whether he felt he was being poisoned at the time of making the videos;
(c)whether he was feeling angry or aggressive at the time of making the videos;
(d)why he had been calling his friend Mr Passon prior to the incident; or
(e)why he had told Mr Passon he was stressed and that people were discriminating against him at work.
65․Professor Greenberg asked the accused about his statement to a treating doctor on 22 March 2021 that his situation had “something to do with the government and he was falsely accused by his friends of raping his girlfriend”. The accused stated that he did not remember what he had said. He denied ever being falsely accused of raping his girlfriend. When asked about his statement to treating doctors that Mr Passon had seen on the news that he was accused of rape, the accused confirmed that “[I] did talk about rape. [Mr Passon] didn’t send a message. [I] messaged [Mr Passon]”. When the accused was asked about a statement he made to Dr Evans on 25 March 2021 that he was observed at work “in a malicious way and felt it was unjust”, the accused stated he “wasn’t in his senses” and “I don’t know how to explain”. The accused could not explain why he could recall and discuss these beliefs with doctors in March 2021 but could not do so in the interview.
66․Professor Greenberg also asked the accused about his statements to treating clinicians on 15 April 2021 that he believed the government was trying to frame him. The accused replied that “the Afghanistan government told him they would kill him [the accused]”. The accused stated that he knew this due to a video on Facebook, but did not know why the Afghan Government wanted to kill him. The accused confirmed that he believed the Afghan Government told him the Australian Government had given information to the government of Afghanistan and they were going to kill him. When asked if he still believed the Afghan Government wanted to kill him, the accused stated “yes. Can’t make it out. I don’t understand. I don’t know”. When asked if he used to think the Afghanistan government wanted to kill him, the accused replied “yes.” When asked when that belief stopped, he stated “I’m still in disarray. Not sure pending or not”. Professor Greenberg asked the accused why he wanted to go back to Afghanistan to visit his family if he thought he would be killed. The accused responded “I never said I’m going to go”. Professor Greenberg also asked the accused how long it was before the offending that he saw the Facebook videos. The accused said that he could not be exact, but that it was “four or five days earlier”.
67․Professor Greenberg asked the accused further questions about his understanding of the offences. The accused responded that he did not understand or did not remember. The accused did not accept that he killed Mr Williams and “chopped” Mr Tyler and Ms Miller. He could not explain why he injured himself during the incident. When asked if he had suicidal ideation or self-harming thoughts prior to the incident the accused responded, “I don’t know”.
68․When asked about what alcohol and drugs he used in the lead up to the incident, the accused stated he smoked 5 to 10 cigarettes of cannabis each day and drank six or seven “packs” of whiskey each day.
69․Professor Greenberg noted that the accused was alert and coherent throughout the interview, and that he did not appear to have a formal thought disorder. He had no issues with orientation or immediate recall. Professor Greenberg also noted that the accused denied having any memory problems prior to the incident, and had “no explanation for his lack of recall of relatively basic historical information”. He gave brief limited information about his personal history, which was often vague in content.
70․Although the accused denied experiencing any hallucinations, he “still had residual beliefs that the Australian government [was] sending information to the Afghanistan Government” and that the Afghan Government wanted to kill him.
Medical history
71․The accused told Professor Greenburg that whilst living in Afghanistan, he was prescribed Xanax for insomnia for a five-day period. He was unable to provide further details regarding his trouble sleeping.
72․The accused reported seeing a psychiatrist in or around 2013 because his visa had been refused and he was stressed. He said the psychiatrist gave him sleeping tablets. He also claimed he saw a psychologist on a weekly basis for 12 months in 2012 and 2013. He did not know whether he was given a diagnosis. He claimed he did not feel good and that he took medication during this period. He also stated that he had attended a hospital for one day during this period, but did not provide further details.
73․When asked about his current contact with mental health services, the accused said “they say nothing”. He reported taking tablets but could not name them. He could not recall if he had any diagnoses. He said the medication helped him, and that he had “normal stress”.
74․The accused told Professor Greenberg that he currently felt “alright”. He also answered “alright” when asked about his sleep, appetite, energy and concentration. He denied thoughts of self-harm or suicide, or thoughts of harm to others.
75․When asked about his thoughts the accused stated, “Sometimes thinking too much about this person [the deceased]. Don’t know why I did a thing like this”. When asked about his symptoms of anxiety, he stated “For this person that died.” He said he could not explain his behaviour.
Drug and alcohol history
76․The accused told Professor Greenberg that he began drinking alcohol and smoking cannabis in Afghanistan at age 15 or 16, but could not recall the amount of alcohol he consumed during this time. He claimed that, while living in Australia, he had drunk one or two bottles of whiskey each day for the past 10 years. He denied ever experiencing alcoholic blackouts. He reported experiencing alcohol shakes for 5-6 years. Professor Greenberg expressed reservations about this claim, noting that the accused was unable to provide further information about this claim upon questioning.
77․The accused reported smoking “28 grams” or “1 ounce” of cannabis each week for the past 4 or 5 years, and said that he had smoked crystal methamphetamines (ice) two or three times while living in Canberra in 2021, but could not recall specific dates when he did so.
Personal history
78․The accused denied being exposed to personal traumas whilst living in Afghanistan or Pakistan. When Professor Greenberg noted that this contradicted information that the accused had previously provided to immigration authorities, the accused explained that he had provided authorities with untrue information to avoid being returned to Afghanistan.
79․The accused reported that he has two daughters aged 12 and 14. When asked why he had previously told authorities he had three children, he said that one child had since died, but was unable to provide further details. The accused stated his wife was five years younger than him and that they married when he was 18, though in response to further questioning, he stated that she was 14 or 15 years old when they married.
80․The accused also provided an account of his travel to Australia through Malaysia and Indonesia which contradicted previous statements to immigration authorities that he travelled through Thailand.
81․The accused reported having a girlfriend in Canberra who was 36 years old and who had a child. They were in a relationship for approximately one year, and met because they lived in the same house. He said his wife in Afghanistan knew that he had a girlfriend in Canberra. He said that the relationship ended when the girlfriend returned to China.
82․The accused denied having any conflict with other employees at his workplace in Canberra. He told Professor Greenberg that he could not remember if he had any recreational activities outside of work while he lived in Canberra.
Additional evidence
83․In his report, Professor Greenberg recounted various statements of the victims and associates of the accused. He noted that these descriptions contained conflicting descriptions of the accused. For example, Mr Tyler described the accused as “always very nice and accommodating” and the attack as “completely out of left field”. In contrast, Mr Abdullah described the accused as “really scary” and that there was “something not right”. He reported that the accused was “sacked from his work because he kept getting aggressive”.
84․One person (who met the accused in December 2020) reported that the accused told him on four occasions that people saw him as “scary” and that he wanted to be left alone. Another associate stated that the accused was “a bit aggressive”. After a dinner with the accused in January 2021, some of the accused’s friends believed the accused “lost his mind” after losing his job and was “getting worse and worse”. One friend noted that the accused “got angry” while watching videos on You Tube about Afghanistan and Pakistan.
85․Mr Passon described the accused as dogmatic and occasionally quick to anger. He reported seeing the videos recorded by the accused on Facebook and contacting the accused, as outlined above. He reported that the accused sounded scared during these phone calls, and on 19 February 2021, “talked about immigration, being deported and being injected [and] said, ‘Pray for me, I don’t want to live anymore’”.
86․Professor Greenberg also described the videos made by the accused shortly before the incident, in which the accused claimed that people wanted to inject him with poison and kill him, and that his “mind is failing”. Professor Greenberg noted that the accused appeared distressed, his thought process was disorganised, and there was a “general paranoid flavour” in the videos.
Medical Records
87․Professor Greenberg reviewed the accused’s medical records from immigration detention centres; Canberra Hospital; Dhulwa Secure Mental Health Unit; and the AMC.
88․Professor Greenberg noted that, during the accused’s time in immigration detention, he was variously reported to be “happy” or “good”, or as displaying “low mood, anxiety and stress”. The accused was assessed to be at risk of self-harm or suicide on two occasions, though one occasion was described as “goal-oriented”. In 2014, the accused was admitted to hospital when facing deportation. He was emotional and self-harming. The provisional diagnosis was a psychotic illness.
89․Professor Greenberg noted that the accused was treated with several antipsychotics and sedatives after the incident on 20 February 2021. Medical records document large variations in the accused’s mood during this time. On some occasions, the accused was observed to be “bewildered” and “distressed” or depressed; on other occasions he was observed to be “disinhibited” with an “elevated mood” or “[inappropriately] jovial”; whilst on yet others he was observed to be settled. Various records reported the accused as displaying no active psychotic symptoms. There were several incidents of physical and verbal abuse of medical staff.
90․Professor Greenberg noted that the medical records also documented the opinions of various practitioners concerning possible diagnoses. These included psychotic disorder (including persecutory psychotic illness), acute psychosis, schizophreniform psychosis, schizophrenia, chronic anxiety, drug-induced psychosis, and cannabis use disorder. At various times, psychiatrists had considered that it was not possible to reach a diagnosis.
91․Professor Greenberg also noted the accused’s varying accounts of his beliefs and memories to medical professionals. For example, on 22 March 2021, 25 March 2021 and 15 April 2021 the accused referred to receiving messages and speaking to a friend about being accused of raping someone in Parliament House but disclaimed any memory of this in his interview with Professor Greenberg; on 15 April 2021, 20 April 2021, and 22 April 2021, he made various claims about the Australian Government and Prime Minister sending information about him to the Afghan Government and/or deporting him to Afghanistan; and on November 2021, the accused told Dr Wareing that “in hospital people were talking about him on TV and targeting him with code words … he thought he would be sent back to Afghanistan and killed with a rock”. The accused repeatedly denied experiencing hallucinations or paranoia. The accused generally maintained that he did not recall the incident and did not know why he acted as he did. Dr Wareing reported that the accused’s thoughts “often returned to the offending”.
Diagnosis
92․Professor Greenberg was of the opinion that the accused met the DSM-V-TR criteria for Substance Use Disorder relating to cannabis and alcohol. In forming this diagnosis, Professor Greenberg took into account the accused’s self-reported history of regular, high-quantity consumption of cannabis (from a young age) and whiskey, and irregular consumption of methamphetamine. Professor Greenberg noted that this diagnosis was supported by other clinicians and by a toxicology analysis of the accused.
93․Professor Greenberg was further of the opinion that the accused meets DSM-V-TR criteria for a Psychotic Disorder (either substance-induced psychosis, or a first psychotic episode of schizophrenic disorder associated with substance use) at the time of the offences.
94․Professor Greenberg outlined two challenges in making this latter diagnosis. First, he observed that there is a general difficulty in distinguishing between substance-induced psychosis and primary psychosis associated with substance use. He noted that a “key differentiating criterion is the duration of the psychotic episode”. In this respect, the “partial language barrier” and the accused’s claim of “total amnesia for a significant period … prior to the alleged offences, at the time …, and in the weeks/months following” presented a further challenge, in particular in determining the onset of symptoms (and consequently the duration of the episode).
95․Despite these challenges (and the similar uncertainty recorded by previous treating physicians), Professor Greenberg was nonetheless of the opinion that, on the basis of evidence from medical staff, police, and the additional information from associates of the accused outlined above, the accused appeared “[at] the very least … to have an onset of psychotic symptoms at the time of him making the video (possibly a week before, or just prior …)”. Professor Greenberg concluded that:
[the accused] likely developed a psychotic episode sometime in the week/s prior to the alleged offences [and likely continued] to suffer from psychotic symptoms in the [following] weeks and month/s.
96․Professor Greenberg considered that this episode was severe, given the nature of the offending and the accused’s behaviour at the time. As the duration of the psychotic episode likely exceeded one month, Professor Greenberg concluded that, on balance, it was likely that the accused had a primary psychotic disorder (namely, schizophrenic disorder). However, he cautioned that this diagnosis was accompanied by significant uncertainty, noting the “atypical presentation and clinical challenges”. Professor Greenberg acknowledged there is “no absolute way to rule out a drug induced psychosis”.
97․Professor Greenberg acknowledged potential medical explanations for the accused’s amnesia concerning events surrounding the offending (including effects of medication, florid psychosis, hypoxia, trauma-associated psychogenic amnesia and his disorganised mental state). However, as the accused was previously able to recall some delusions just prior to and at the time of the incident, Professor Greenberg concluded that the accused likely “has islands of memory” and may have further recollection of the period leading up to the incident, but “claims total amnesia” (potentially due to ongoing fears of deportation).
98․By reference to DSM-V-TR criteria, Professor Greenberg also considered the possibility of persistent adjustment disorder with anxiety, related to the accused’s visa, deportation and post-offence stressors, or an underlying anxiety disorder. Professor Greenberg referenced the accused’s history of mental health issues – including depression, anxiety and potentially “goal-oriented” threats of suicide/self-harm – while in immigration detention and related to adverse visa findings. He further noted two potential diagnoses of depression and chronic anxiety after the incident.
Professor Greenberg’s opinion
99․Professor Greenberg provided the following clinical opinions:
(1)The accused meets the DSM-5 diagnosis criteria for a psychotic disorder (likely schizophrenic disorder) and alcohol/substance use disorder;
(2)The accused was “on balance, suffering from an acute psychotic schizophrenic episode at the time” of the offending;
(3)The accused’s mental impairment had the effect that he did not know the nature and quality of his conduct at the time of the offence, did not know that conduct was wrong, and could not control his conduct; and
(4)The accused’s “overt psychotic episode does explain his offending”.
100․Professor Greenburg concluded that, on balance, the accused’s mental illness “was not the result of a reactive condition resulting from a reaction to a healthy mind to an extraordinary external stimulus [cannabis]” (s 27 of the Crimes Act). He noted that there is “compelling evidence” that cannabis use and psychosis “are associated”, and that cannabis use can precipitate schizophrenia in “vulnerable individuals”. Professor Greenberg could not “with any certainty … exclude the possibility [of] substance-induced psychosis, however on balance he likely has a schizophrenic disorder”. Cannabis may have contributed to or precipitated his schizophrenia.
101․In relation to the accused’s risk of re-offending, Professor Greenberg noted the challenges and uncertainties surrounding the accused’s psychiatric presentation as outlined above, and concluded that long-term psychiatric care is necessary for clinicians to be able to undertake “meaningful risk assessment and risk management evaluation”. However, he noted that people with schizophrenia “have exacerbations of psychotic symptoms, and a chronic course defined by symptoms and functional impairment is common”. As a result, he considered that the accused:
… should be regarded as a high risk of having a further psychotic episode and he should continue to receive closely supervised psychiatric and mental health treatment … care and management in a facility ...
102․Professor Greenberg also noted that the accused’s immigration-related fears are likely to be an “ongoing factor in his clinical presentation in the short-medium term.”
Addendum Report of Professor David Greenberg dated 15 January 2023
103․After receiving Professor Greenberg’s first report, Crown Prosecutor Anthony Williamson SC wrote an email to Professor Greenberg seeking a further report.
104․In this email, Mr Williamson SC highlighted the importance of Professor Greenberg’s assessment in informing the prosecution’s decision regarding whether to concede that a special verdict of not guilty by reason of mental impairment is appropriate. Mr Williamson SC sought to clarify Professor Greenberg’s clinical opinions and asked Professor Greenberg a series of further questions. In particular, Mr Williamson SC sought further clarification regarding:
(a)Whether any tests were applied to determine whether the accused was malingering, feigning or exaggerating his symptoms,
(b)If not, whether there would be utility in further exploring the possibility of malingering, particularly given the accused’s history of providing inaccurate information to immigration authorities to achieve his goals,
(c)Noting the reliance of the diagnosis on self-reporting, whether evidence of malingering would materially change the diagnosis,
(d)Whether it was uncommon for acute manifestation of a schizophrenic disorder to first appear at 35 years of age, and
(e)Whether further review of the accused or his records would be of benefit and whether the effluxion of time may affect the opinion given,
105․In response to this request, Professor Greenberg provided an Addendum Report dated 15 September 2023. This report was admitted without objection.
106․In this response, Professor Greenberg confirmed his opinion that the accused possibly has further recall of the time surrounding the offences, but reiterated that he could not be certain of this. Professor Greenberg explained that there are no scientifically accepted psychiatric tests to prove or disprove the legitimacy of a person’s claimed amnesia for an offence. Professor Greenberg observed that effort tests such as the “test of memory malingering” seek to distinguish malingering from genuine memory or cognitive impairment. However, he noted that these tests have limitations, particularly for schizophrenic subjects. He was of the view that the utility of these tests would be limited to assessing the accused’s claim of memory loss and discrepancies in his personal history, and not to his diagnosis of schizophrenia or its effect at the time of the offending.
107․Professor Greenberg confirmed that he is of the opinion that the accused has a schizophrenic disorder, and that he does not believe the accused is malingering his psychotic disorder. Indeed, he considered it possible that the accused was, in fact, withholding information about residual psychotic symptoms after the incident. Professor Greenberg noted that in diagnosing the accused, he had not solely relied on information provided by the accused, but had also taken into account the fact that key witnesses, mental health professionals and police had observed signs of disturbance prior to, during, and following the incident.
108․Professor Greenberg acknowledged that schizophrenia symptoms typically emerge between late teens and mid-thirties and that the peak onset age for men is mid-twenties. While onset may be abrupt, the majority of individuals “manifest in a slow gradual development of a variety of clinically significant signs and symptoms”, particularly social withdrawal and emotional and cognitive changes. Professor Greenberg considered that an initial presentation at 35 years of age is not common, but an atypical common age for the emergence of schizophrenia.
109․Professor Greenberg stated that any further information about the accused’s clinical presentation would assist him in differentially diagnosing schizophrenia or drug-induced psychosis, noting that 10 months had passed since he reviewed the accused’s medical records. It does not appear that any further information was provided to Professor Greenberg after this time.
Report of Professor Ian McGregor
110․Professor McGregor prepared a report dated 17 November 2022 at the request of the Director of Public Prosecutions.
111․Professor McGregor is a Professor of Psychopharmacology and the Academic Director of the Lambert Initiative for Cannabinoid Therapeutics at the University of Sydney. His key research area is examining the effects of drugs on the brain and behaviour, particularly cannabis, but also methamphetamines and alcohol and psychotropic drugs.
112․Professor McGregor had available to him the relevant material as provided to Professor Greenberg. Professor McGregor also had the benefit of Dr Furst and Professor Greenberg’s forensic psychiatric reports.
113․Professor McGregor was asked to specifically comment on how the mental state of the accused may have been affected by his documented use of cannabis, alcohol and methamphetamines.
Alcohol consumption
114․Professor McGregor observed that there is evidence that the accused engaged in “significant drug and alcohol use in the days, months and years leading up to the incident”. He also noted the evidence of a fatty liver, consistent with chronic alcohol use.
115․Professor McGregor noted that there is the inconsistent information regarding the accused’s alcohol intake. For example, the accused initially told Professor Greenberg that he would drink “one or two bottles of whisky each day”, but later in the interview he said his alcohol intake was “6-7 packs of whisky per day” (where a “pack” is equivalent to a standard drink). The accused described his pre-incident intake to Dr Evans as around one bottle of spirits weekly; to Dr Wareing as one bottle of whisky every 3 days; and to Dr Furst as around 6-7 standard drinks per day, or 1-2 bottles of whisky per week. Given that one or two bottles of whisky per day is “an enormous amount of alcohol” which would cause “very poor health”, “premature mortality”, inebriation at most times, and would be very expensive, Professor McGregor proceeded on the basis that the accused was consuming approximately 1-2 bottles of whisky per week. This would be roughly consistent with his accounts to Dr Furst, Dr Wareing, and his second account to Professor Greenberg. Professor McGregor noted this level of alcohol consumption exceeds the recommended guidelines and was “at a level that would likely produce substantial risks of impaired physical and mental health”.
116․Professor McGregor noted that “there is evidence that heavy and prolonged alcohol use can sometimes lead to a psychotic state that has similarities to schizophrenia” and is recognised as Alcohol-Induced Psychotic Disorder (AIPD). He explained that this is a “rare condition” characterised by auditory hallucinations and persecutory delusions. Professor McGregor considered that:
While the heavy drinking of the accused over many years would certainly qualify as a risk factor for AIPD, the fact that there was no obvious escalation of drinking by the accused prior to the incident, or obvious dissipation of psychotic symptoms in the weeks after the incident, makes me doubtful that AIPD is a likely causal factor.
Cannabis consumption
117․Professor McGregor noted that the accused’s reported cannabis consumption was variously 28 grams of cannabis each week, 10-15 “cigarettes” of cannabis each day (which is consistent with 28 grams weekly), and 5-10 cigarettes of cannabis each day, for years. Professor McGregor proceeded on the basis that the accused was consuming between 1.5 and 4 grams of cannabis per day (10.5 to 28 grams per week) in the lead up to the incident, which “is on the upper end of the range of community use”.
118․Professor McGregor explained that a proportion of cannabis users experience psychosis-like features from consumption, which can involve “intense paranoia, persecutory thoughts, delusions and panic”. However, he noted that there is no scientific consensus about whether cannabis use can precipitate an enduring or lifelong psychosis, such as schizophrenia. While some research indicates a statistical association between cannabis use and schizophrenia, other evidence states that schizophrenia may drive cannabis use, or that there are common genetic factors which drive both schizophrenia and cannabis use. It is generally agreed that earlier onset of cannabis use leads to greater vulnerability to cannabis-associated mental health problems.
119․Professor McGregor was of the opinion that the accused’s:
… self-reported ongoing daily use of cannabis at a high dose … and his initiation of cannabis use early in his lifetime … could both be considered as risk factors in terms of increasing vulnerability to developing schizophrenia. His considerable exposure to lifetime trauma and chronic stress would be considered as additional risk factors.
120․Professor McGregor noted that a “critical” blood sample taken from the accused on the day of the incident was disposed of by the hospital. As a result, the THC concentrations in the accused at the time (which are relevant for assessing of the likelihood of acute cannabis-induced psychosis) are unknown. A further blood sample was taken 5 days after the incident, and revealed a THC concentration of <2 ng/ml in the accused. A urine sample also verified that the accused had recently used cannabis. However, Professor McGregor stated that both of these samples provide “little or no insight” into the accused’s intoxication with THC prior to and during the incident.
Methamphetamine consumption
121․The accused reported using crystal methamphetamine on two or three occasions while in Canberra in 2021. Professor McGregor noted there are major concerns regarding “the highly addictive nature of ice and its capacity to produce violent and aggressive behaviours, personality change and psychosis”. However, Professor McGregor considered it “unlikely that methamphetamine-induced psychosis played a role in the incident involving the accused … because of the infrequent nature of the methamphetamine use admitted”.
Conclusions
122․Professor McGregor concluded it was “difficult to form a clear opinion around the contribution of heavy cannabis and alcohol use to the conduct of the accused during the incident”. He considered that it is possible the accused’s long history of heavy cannabis and alcohol use has contributed, alongside stress and childhood trauma, “to the development of a primary psychosis”. However, he was of the view that there was no obvious indication that habitual alcohol and cannabis use would have precipitated “an acute psychotic state on the particular day of the incident”.
123․Professor McGregor also noted that as he is a research scientist, he “would defer to the expert opinion of the two forensic psychiatrists” who interviewed the accused in respect of clinical and diagnostic issues. He noted that both psychiatrists found that there is evidence of primary psychosis (rather than a substance-induced psychosis) and concluded that he had “no reason to disagree with [their] conclusion”.
Determination of liability
Relevant legislation
124․Section 321 of the Crimes Act provides as follows:
321 Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a)the court considers the verdict appropriate; and
(b)the prosecution agrees to the entering of the verdict.
125․Section 28 of the Criminal Code provides as follows in relation to the effect of mental impairment on criminal responsibility:
28 Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2)For subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4) …
126․Mental impairment is defined in s 27 of the Criminal Code as follows:
27 Definition—mental impairment
(1)In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2)In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
Jurisdiction under s 321
127․Sections 68A and 68B of the Supreme Court Act 1933 (ACT) require that “excluded” offences be tried by jury, rather than by judge alone. Offences of murder and attempted murder are excluded offences: Sch 2, Pt 2.2 of the Supreme Court Act; ss 44(7) of the Criminal Code and s 189 of the Legislation Act 2001 (ACT).
128․However, the procedure provided for in s 321 is not a ‘trial’ within the meaning of those provisions; cf Aleer at [21]. Section 321 applies only where “the entry of a special verdict with the agreement of the prosecution will resolve the issues that need to be determined in the proceedings”: R v Jackson [2021] ACTSC 120 at [3]. In those circumstances, “the need for a trial is avoided” and the Supreme Court may enter a special verdict under s 321: Jackson at [3] and R v Aranyi [2013] ACTSC 169; 278 FLR 409 at [29]. In cases where there is any dispute between the prosecution and the accused as to the physical elements of the offence (that is where the accused contends that the proper verdict is not guilty), or as to the special verdict (that is, where the prosecution contends that the proper verdict is guilty), the s 321 procedure is not available and the matter must proceed to trial: Jackson at [4].
129․Where the conditions set out in s 321 apply (that is, the accused enters a plea of not guilty by reason of mental impairment and the prosecution agrees to the entering of the verdict), the function of the Court is to determine whether a special verdict is “appropriate”: Jackson at [3] and Aranyi at [27]-[30].
130․Although the provision could be clearer, it is, in my view apparent that the task to be performed under s 321 is to be performed by the Court as constituted by a Supreme Court judge sitting alone without a jury.
131․In particular, as explained in Aranyi, the scope of s 321 is broad and does not contain any restriction on its application to offences excluded from judge alone trials. Section 321 pre-existed the creation of excluded offences in Sch 2 of the Supreme Court Act. The lack of any change to s 321, or any reference to it in Sch 2, indicates “Parliament knew of [and] did not intend to limit the scope and operation of the section by Sch 2”: Aranyi at [28]. This conclusion is also supported by the Explanatory Memorandum to the Crimes (Amendment) Bill 1994 (which introduced the predecessor of s 321), which explains that the provision was intended to allow the entering of ‘consent’ verdicts: Jackson at [5] and R v Smith [2012] ACTSC 146 at [6].
Procedure to be applied
132․In my view, the following procedure should be followed in an application under s 321:
(1)The accused should be arraigned in the usual way.
(2)If the accused enters a plea of not guilty by reason of mental impairment, the prosecution should be asked if it agrees to the entry of a special verdict. The agreement need not be in writing.
(3)If the prosecution does not agree to the entry of a special verdict, the trial proceeds in the usual way. Where an offence charged is an “excluded offence”, the trial must by jury.
(4)If the prosecution agrees to the entry of a special verdict, the Court must consider whether a verdict of not guilty by reason of mental impairment is “appropriate”.
(5)A verdict of not guilty by reason of mental impairment will be “appropriate” if:
(i)The Court is satisfied beyond reasonable doubt that the elements of the offence are proved, noting s 29 of the Criminal Code, which provides that a person “cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility”. See also R v Jackson [2021] ACTSC 120; 360 FLR 1 at [113] – [122]; and
(ii)The Court is satisfied on the balance of probabilities that, when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that the accused did not know the nature and quality of the conduct, or the accused did not know that the conduct was wrong, or the accused could not control the conduct (s 28 of the Criminal Code).
(6)The Court may be satisfied of the matters described in (5) above by the tender of statements, an Agreed Facts and/or expert reports, provided those documents are tendered by consent.
(7)If the Court is satisfied that the special verdict is “appropriate”, that verdict must be entered.
(8)If the Court is not satisfied that the special verdict is “appropriate”, the matter will proceed to trial: see similarly Jackson at [3]. Where the charges related to excluded offences, that trial will need to be by jury.
133․The above procedure draws upon the procedure set out by Refshauge J in R v Smith (2012) 269 FLR 233 at 235, which was followed in R v Aleer [2016] ACTSC 75 at [13] (Refshauge J); R v Griffiths [2020] ACTSC 51 at [21] (Loukas-Karlsson J); R v Chemhere [2021] ACTSC 45 at [17] and R v Matthews [2022] ACTSC 105 (Loukas-Karlsson J). A substantially similar procedure was also applied by Elkaim J in R v Edet [2020] ACTSC 276 at [5].
134․However, there are two differences between the procedure set out by Refshauge J in Smith and Aleer and that which I have set out above.
135․First, in Smith and Aleer, the standard of satisfaction for the conditions in s 28 was described as “a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused”: Smith at [20] and Aleer at [13]. With respect to his Honour, as outlined at (5)(ii) above, I prefer to apply the standard set out in s 28(5) of the Criminal Code, namely that the s 28 conditions must be established “on the balance of probabilities”. I note that that this was the standard applied by Penfold J in Steurer at [69] and by Murrell CJ in R v Kelly [2018] ACTSC 332 at [57] and referred to by Refshauge J in Smith at [23]. In circumstances where the accused, by his plea, invites the Court to find him not guilty by reason of mental impairment, I do not consider that the standard of satisfaction should be affected by the possible consequences of a finding that the accused is not guilty by reason of mental impairment.
136․Second, the relationship between mental impairment, fault elements and voluntariness is complex: see Jackson at [113] – [122]. In the present case, there was no dispute that, apart from the mental impairment, the fault elements were established and the accused’s conduct was voluntary. In these circumstances, I would prefer not to express a concluded view as to the precise nature of this relationship; cf Aleer at [13(v)].
137․In accordance with the above procedure, in the present case, the accused was arraigned and pleaded not guilty by reason of mental impairment to each count on the indictment. In oral submissions, the prosecution indicated agreement to the entering of those verdicts.
138․The prosecution then tendered the Prosecution Case Statement without objection. It was common ground that the Court could act on the basis of the Prosecution Case Statement in making factual findings concerning the alleged offences. The expert reports were also admitted into evidence without objection.
Whether legal directions required under s 321
139․There are differing approaches in the cases as to whether the Court should set out the legal directions it has applied in determining whether the prosecution has demonstrated the physical elements beyond reasonable doubt and whether the matters specified in s 28 of the Criminal Code have been demonstrated on the balance of probabilities. For example, in Stuerer at [42], R v Leong [2010] ACTSC 22 at [3], Aleer at [24] - [34], R v Cross [2017] ACTSC 91; 319 FLR 288 at 289 at [6]; Griffiths at [26] - [28], Chemhere at [4], Matthews at [4] and DPP v Connors [2022] ACTSC 279 at [14], the respective trial judges set out directions which they had applied or acknowledged the need for such directions. In contrast, in Smith, R v Barker [2014] ACTSC 374, Kelly, R v Edet [2020] ACTSC 276, R v Singsathitsuk [2021] ACTSC 26 and R v Andison [2021] ACTSC 32, the respective trial judges did not record any legal directions given.
140․Section 68C of the Supreme Court Act requires that the judgment in criminal proceedings tried by a judge alone “must include the principles of law applied by the judge”. This requirement extends to any warnings or directions that are given under s 68C(3) of the Supreme Court Act. In some of the above cases it has been held that this provision requires the legal directions given to be recorded in a judgment under s 321 of the Crimes Act: see, for example, Chemhere at [4], Griffiths at [24]–[28] and Matthews at [4].
141․However, in view of my conclusion that ss 68A and 68B of the Supreme Court Act do not apply to a determination under s 321 of the Criminal Code, I consider that it is not necessary for directions to be recorded by a judge in determining whether a verdict under s 321 is “appropriate”. As Mossop J held in Jackson at [3], where the conditions set out in s 321 are satisfied, “the need for a trial is avoided”. His Honour observed that previous authorities that have held otherwise did so without reference to the purpose of s 321, “which was identified as being to permit a ‘consent’ verdict to be entered: see Explanatory Memorandum, Crimes (Amendment) Bill 1994 at 7”. In this respect, I also note that the requirement to give directions to a jury as to the possible verdicts and the effect of those verdicts in s 322 is not expressed to extend to the s 321 procedure.
142․Nonetheless, for abundant caution, I record that I have directed myself in accordance with the directions contained in Annexure “A”.
The parties’ submissions
143․There was no dispute that the physical elements of the three charged offences have been proven beyond reasonable doubt by the prosecution. There was also no dispute that verdicts of not guilty by reason of mental impairment under s 321 are appropriate on the evidence.
144․In brief oral submissions, the prosecutor noted that all of the experts are of the opinion that the accused has a defence available pursuant to s 28 of the Criminal Code, that is, that at the time of the alleged conduct, the accused suffered from a schizophrenic disorder of such a nature that he could not control his conduct and did not appreciate that it was wrong by ordinary standards.
145․The prosecutor emphasised that the Crown was “anxious to exhaust enquiries in relation to the possibility of the accused malingering” and Professor Greenberg provided a subsequent report which concluded that the accused was not malingering. The prosecutor concluded that: “[i]n the face of all of the evidence which all points in the one direction, the prosecution cannot sensibly suggest that your Honour could do other than enter a special verdict of not guilty by virtue of mental impairment.”
Consideration
146․I am satisfied on the basis of the unchallenged evidence that the elements of each charge (murder and attempted murder) have been proved beyond reasonable doubt.
147․The question that remains is whether I am satisfied that the accused was suffering from a mental impairment which had the effect that the accused did not know the nature and quality of the conduct; or did not know that the conduct was wrong; or could not control the conduct.
148․The experts are of the unanimous opinion that the accused is suffering from schizophrenia, which is a mental impairment within the meaning of s 27 of the Criminal Code, and that the impairment was of such a nature that he was unable to control his conduct and that he did not appreciate that the conduct was wrong, such that s 28 of the Criminal Code is also satisfied.
149․Of course, as stated in Annexure A, if, having carefully considered the expert evidence – including the reliability and accuracy of the material used by the experts, and the degree of analysis – I do not accept it, I do not have to act upon it. However, as the expert evidence has not been challenged, I must have a good reason to reject it – for example, if the opinion, or the facts upon which the opinion is based, do not accord with other facts I find proved.
150․In the present case, no challenge has been made to the underlying facts that gave rise to the experts’ opinions. I have carefully considered the evidence, including the acknowledged limitations and uncertainties in the diagnoses of the respective experts.
151․I have given careful attention to the accused’s reliability, and the extent to which doubts about that reliability may affect the validity of the expert opinions. In particular, I note that the accused has given competing accounts of various aspects of his personal history to various persons at various times. For example:
(1)While he generally reported being born in Afghanistan and moving to Pakistan at around 14 or 15 years old, Dr Furst noted that he told Dr Wareing that he was born in Pakistan.
(2)The accused made claims of trauma and persecution in Afghanistan and/or Pakistan to immigration authorities, including a claim that his father was beheaded by the Taliban. However, the accused told Professor Greenberg that his parents "currently live in Queta in Pakistan" and that "he had a good relationship with both his parents and speaks to them regularly on the telephone”. He also denied being exposed to personal traumas whilst living in Afghanistan or Pakistan. When asked why he had given false information to immigration authorities, the accused explained that “he didn’t want to be sent back to Afghanistan at that time".
(3)He variously told authorities and clinicians that he had three children, two daughters, or two sons, and provided varying accounts of their ages. At one stage, he claimed one child had died but was unable to provide further details concerning the circumstances of this death.
(4)The accused provided differing accounts of his alcohol and cannabis consumption.
(5)The accused alleged that a friend had seen on the news that he was accused of rape; however, at one stage he apparently admitted that it was he who initiated a conversation about the rape allegation.
(6)In relation to his alleged request to Mr Passon to purchase him a bus ticket to Melbourne, he variously denied making the request and stated Mr Passon asked him to come to Melbourne, and denied any recollection of the request.
(7)As described by Professor Greenberg above, the accused’s claimed amnesia for the entire period preceding and during the offending was inconsistent with his statements to various medical staff about his beliefs, conversations and actions during this period.
152․These inconsistencies give rise to real concerns about the reliability of information provided by the accused. However, as Professor Greenberg emphasised in his Addendum Report, the evidence in support of a diagnosis of schizophrenia includes not only the accused’s accounts, but also the observations of his housemates, friends, mental health professionals and police in the periods prior to, during, and following the incident. Further, as Professor Greenberg observed, there is a real possibility that the accused may have been under reporting his symptoms, rather than malingering.
153․As outlined above, a defence of not guilty by reason of mental impairment is not available where a condition results from the reaction of a healthy mind to extraordinary external stimuli, such as cannabis or alcohol: s 27(2) of the Criminal Code; see further R v Pahl [2017] ACTSC 68; 266 A Crim R 41 at [122] – [133]. Accordingly, I have also given careful consideration to the experts’ opinions that the accused’s psychotic state on the day of the incident was precipitated by his mental illness, and not cannabis or alcohol use.
154․It is regrettable that a “critical” blood sample taken from the accused on the day of the incident appears to have been inadvertently disposed of by the hospital. The task of determining whether the accused’s psychosis was the result of his mental illness, rather than the consumption of drugs or alcohol, has been rendered more difficult by the loss of this evidence.
155․Nonetheless, as Dr McGregor concluded, whilst it is impossible to be definitive, there appears to be no obvious indication that habitual alcohol and cannabis use would have precipitated “an acute psychotic state on the particular day of the incident”. I also note that, based on the accused’s apparent prodromal and residual psychotic symptoms and the duration of his psychotic episode – which from the evidence (including medical records, information from the accused’s associates, and the video recordings) appeared to exceed one month – Professor Greenberg similarly concluded that the accused’s psychotic disorder was more likely to be a primary disorder, such as a schizophrenic disorder, rather than a substance-induced disorder. I accept these opinions.
191․This understanding of the function of s 302 accords with its legislative history. Prior to the enactment of the predecessor of s 302, s 428C of the Crimes Act provided that a person could not be detained following a finding of not guilty by reason of mental illness for a period longer than the maximum penalty of the provision. Section 428C was enacted to “provide a limit on detention”, and to ensure that persons acquitted on the grounds of mental illness were not detained for a period greater than the period of imprisonment that they would have received if they had not had a mental illness: Explanatory Memorandum, Crimes (Amendment) Bill 1994 (ACT) at p 3. The amendment to the predecessor of s 302, which requires the “best estimate” to be made, was similarly intended to avoid indeterminate detention, and to ensure that persons found not guilty by reason of mental impairment were not detained longer than persons who were found guilty after trial.
192․Viewed in this context, it can be seen that the specification of a nominated term is neither illogical nor unfair. As the author of the Explanatory Memorandum to the Crimes (Amendment) Bill 1999 explained:
It would be unfair for a person who was ordered to be detained in custody because he or she is unfit to plead and found to have committed the act constituting an offence, to be detained for a period substantially longer than the period of imprisonment to which he or she would have been sentenced had the person been convicted of the relevant offence in normal criminal proceedings.
See similarly the Presentation Speech for the Crimes (Amendment) Bill 1999 (Hansard, 22 April 1999, pages 1126-1127), which states:
The change made by the Bill is to limit the period of any detention to a period no longer than the period for which the person would most likely have been imprisoned had the person been found guilty of the offence with which he or she has been charged if dealt with in normal criminal proceedings. This recognises that offenders who are dealt with in normal criminal proceedings are often sentenced to imprisonment for a term less than the maximum which the court could impose. If a person is to be detained pursuant to a provision of Part 11A of the Act, he or she should not be detained for a period longer than the period of imprisonment which would have been imposed for the relevant offence in normal criminal proceedings. The provisions of the Bill require the court to make its best estimate of what imprisonment term would have been imposed in the particular circumstances and then restrict any order for detention of the accused to a period not exceeding that term.
193․In Steurer, Penfold J considered that this explanation is “unsatisfactory insofar as it applie[s] the concept of fairness to persons who, if fit to plead, would have been found not guilty because of mental impairment”, noting that “fairness as such would seem to require that a person who has been found not guilty, including because of mental impairment, would walk free”, and that “any continued detention of such a person would reflect not fairness in any strict sense, but the need for protection of the community and possibly the person”.
194․With respect to her Honour, this criticism overlooks both the function and purpose of a nominated term. As outlined above, a nominated term does not operate as a minimum period of imprisonment. Rather, it operates as a limit on the duration of detention that may be ordered for the purpose of the protection of the community. As Penfold J acknowledged in a corrigendum to her decision in Klobucar (No 2), once the nominated term expires, any further involuntary detention of a person who, on release, might be a danger to themselves or others, would need to be ordered under another provision of the Mental Health Act.
195․In other words, to answer the rhetorical questions posed at [180] above, a nominated term has utility because it functions as an outer boundary on detention resulting from a finding of not guilty by reason of mental impairment. In this way, there is no false equation between a person who has been found not guilty by reason of mental impairment and a person who has been found guilty of the offence. It remains open to the ACAT to release a person who has been found not guilty by reason of mental illness prior to the expiry of the nominated term where that person no longer presents a significant risk to themselves or the community. The specification of a nominated term does not mean that the detention for the purposes of the protection of the community becomes punishment. Rather, the nominated term simply confines the extent to which the protection of the community may authorise detention following the commission of a crime.
196․Reflecting the above, it may be noted that various Law Reform Commissions, Parliamentary Committees, and reviews have recommended the enactment of provisions similar to s 302 of the Crimes Act: see, for example, New South Wales Law Reform Commission, Report 80 (1996) – People with an Intellectual Disability and the Criminal Justice System (December 1996) at [6.28] – [6.36]; Greg James QC, Review of the New South Wales Forensic Mental Health Legislation (Report, August 2007) at [6.29] – [6.32]; NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal responsibility and consequences (Report 138, May 2013) at pages 178 – 181; Law Reform Commission of Western Australia, Review of the Law of Homicide (Project 97, September 2007) at 243 - 245; South Australia Sentencing Advisory Council, Mental Impairment and the Law: A Report on the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (November 2014) at [3.186]–[3.187], page 146. For example, whilst acknowledging the difficulty of the task for the sentencing judge, the New South Law Reform Commission concluded that the setting of a nominated (or limiting) term is “the only pragmatic alternative to indeterminate detention”: NSWLRC Report 80 at [6.35]
197․A proper understanding of the function of a nominated term provides some guidance to the Court in determining the nominated term. Nonetheless, difficult questions remain.
198․Two particular difficulties concern first, the extent to which the offender’s mental illness may be taken into account in assessing the nominated term, and second, the relevance of an offender’s moral culpability in assessing the appropriate nominated term. Different views have been expressed in judgments of this Court as to the proper approach to these issues. For example,
(i)In Leong, Penfold J did not take into account the accused’s mental illness in determining the appropriate nominated sentence to be imposed, stating that the notional sentence should be calculated “as if Mr Leong did not have a mental illness” (at [8]). Accordingly, her Honour did not reduce the weight to be given to general deterrence in setting the nominated term.
(ii)In Aranyi (No 2), Nield AJ held that the offence (murder), whilst serious, “was an act of a man suffering from a severe mental illness”, and concluded that personal deterrence “should be ignored and that general deterrence [was] of little importance”: Aranyi (No 2) at [10] and [14].
(iii)In Klobucar (No 2), Penfold J considered that she was required to hypothesise a situation where the accused’s mental condition was not sufficiently severe to permit a mental impairment verdict or to justify a verdict of manslaughter by reason of diminished responsibility. However, her Honour nonetheless accepted that Verdins principles applied, and gave no weight to general or specific deterrence in the assessment of the nominated term.
(iv)In R v Kelly, Murrell CJ noted that a determination of the degree of an offender’s moral culpability “is critical to the sentencing task”, and that a finding of not guilty by reason of mental impairment means that the accused is “not morally responsible for the commission of the offences”. Her Honour observed that considerations that are relevant to moral culpability, such as premeditation and planning, will be “largely irrelevant”, but noted that Penfold J had held otherwise in Klobucar (No 2). Her Honour took into account that the incident was attributable to mental impairment, and declined to place any weight on punishment as a sentencing purpose: Kelly at [68] and [70(e)].
(v)In R vOphel [2019] ACTSC 325, Burns J declined to follow Klobucar (No 2) and concluded that an accused’s person’s mental impairment should be “fully acknowledged” and given “full weight in the ordinary way” when assessing a nominated term under s 302: Ophel at [5]. His Honour noted that a finding of not guilty by reason of mental impairment has the result that, for the purposes of the criminal law, the person is taken to have no moral responsibility for their acts. As a result, “in most, if not all, cases concerning the application of s 302, the importance of sentencing considerations such as deterrence and punishment will be significantly ameliorated or even eliminated”, whilst considerations such as protection of the public will assume greater importance: Ophel at [8].
(vi)Ophel was followed by Loukas-Karlsson J in R v Griffiths (No 2) [2020] ACTSC 118 and by Mossop J in R v Walker (No 2) [2021] ACTSC 46. In Walker (No 2), the accused’s moral culpability was assessed to be low, and general deterrence was eliminated as a sentencing consideration.
199․I note that similar questions have arisen in respect of comparable provisions in other jurisdictions. In particular, s 20BJ of the Crimes Act 1914 (Cth) has been held to similarly require an assessment of a hypothetical sentence that an accused would have received if found not guilty of the offence(s) charged: R v Goodfellow (1994) 33 NSWLR 308. In respect of this provision, different views have been expressed as to whether a court is permitted to take account of an accused’s mental illness in assessing this hypothetical sentence: Goodfellow at 311E and 313D; R v Robinson [2004] VSC 505; 11 VR 165 at [25] and [31] and R v G, H [2019] SASCFC 71 at [22], [26] and [89].
200․It is arguable that, as a nominated term performs a similar function to the principle of proportionality considered in Veen (No 2), the focus of a nominated term should be on the objective seriousness of the offending, rather than on the accused’s moral culpability for his or her acts. However, this was not argued by the prosecution in the present case. In any event, I consider that the preferable view is the accused’s mental impairment should be taken into account in the determination of the nominated term.
201․Specifically, the text of s 302 requires the Court to make a “best estimate” of the sentence that would have been appropriate “if the accused were a person who had been found guilty of that offence”. There is no indication in the text of s 302 that an accused’s subjective factors, including their mental impairment, should be ignored in making this assessment; cf s 269O(2) of the Criminal Law Consolidation Act (SA), considered by Kourakis J (as his Honour then was) in R v Behari [2011] SASC 111 at [15]. Rather, s 302 requires the estimate to be made of the sentence that would have been appropriate for “the accused”. This interpretation is further supported by s 307 of the Crimes Act, which provides that “in determining the sentence it would have imposed, the relevant court may inform itself and consider the evidence and submissions that it would were the court determining the sentence to be imposed in normal criminal proceedings”.
202․Additionally, such an interpretation best fulfils the purpose of s 302 of ensuring that offenders found not guilty by way of mental illness are not subject to detention which is significantly longer than the detention which would have been imposed had they pleaded guilty in a normal trial: see similarly NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System - Criminal Responsibility and Consequences at [7.71]–[7.91], p 180; Law Reform Commission of Western Australia, Review of the Law of Homicide at 244.
203․Accordingly, as outlined below, I have taken into account the accused’s mental impairment in determining the nominated terms to be specified under s 302 in respect of each charge.
The nominated terms
204․In setting the nominated terms, I have taken into account the following matters:
(1)The maximum penalty, which remains, as always, a critical sentencing parameter. The maximum penalty for murder is life imprisonment: s 12(2) of the Crimes Act. The maximum penalty for attempted murder is also life imprisonment: s 44(9) of the Criminal Code 2002 (ACT).
(2)As the prosecutor submitted, the relevant offences involved “extensi[ve] and gratuitous violence without any provocation”. The accused attacked the victims with a meat cleaver and a knife. Two of the victims were in their home and one victim was a guest. The accused did not stop violently attacking the victims until he was forcibly subdued. In relation to the attempted murder charges, the victims would not have survived without extensive medical intervention: s 33(1)(a) and (q) of the Crimes (Sentencing) Act 2005 (ACT).
(3)The victims of the attempted murder have been left suffering from permanent and severe physical effects, alongside inevitable, and no doubt severe, psychological trauma. Ms Lee properly acknowledged the “sheer terror that must have been present at the time … for the victims”: s 33(e) of the Crimes (Sentencing) Act.
(4)The accused has, at times, denied committing the crimes (in particular to Professor Greenberg) and has expressed limited remorse for his actions. I also note that while the accused claims total amnesia for the period surrounding the offences, Professor Greenberg believes the accused possibly has further recall of this time. However, I also take into account that it has been documented that the accused’s thoughts “often returned to the offending” and he stated on 28 January 2023, “I’m very sorry for the guy”. I take into account that on behalf of the accused, Ms Lee stated that having read the Agreed Facts, the accused expresses sadness and regret. I have afforded some mitigation for the offender’s quite limited expressions of remorse: s 33(1)(w) of the Crimes (Sentencing) Act.
(5)There was no evidence that the accused had any prior criminal history.
(6)The accused was likely affected by alcohol and cannabis to some extent at the time of the offence: s 33(1)(p) of the Crimes (Sentencing) Act. I note that this does not mitigate his conduct.
(7)I have taken into account that the accused has spent significant periods of time in immigration detention and that while in immigration detention, he experienced poor mental health. However, I do not consider that there is evidence that the accused had a disadvantaged background that is sufficient to further reduce his moral culpability for his actions in accordance with Bugmy principles: Bugmy at 595, [44]. In this respect, I note the lack of consistency and reliable evidence regarding most of the accused’s background, including his place of birth, any trauma he experienced in Afghanistan or Pakistan, his journey to Australia as an asylum seeker, and his current family situation and responsibilities.
(8)I have not been provided with evidence regarding whether detention will weigh more heavily on the accused in light of his schizophrenic disorder, nor regarding whether imprisonment would have a significant adverse effect on his health. As in Walker (No 2) (at [12]), I accept that the circumstances of detention will be a greater burden on the accused, as a person with a schizophrenic disorder, than on a person without that condition. I am not satisfied that detention will have a significant adverse effect upon his mental health.
205․As s 302 requires that the nominated term be assessed on the basis that the accused had been “found guilty”, I have not provided any discount for the accused’s plea. I have taken into account the accused’s willingness to facilitate the administration of justice (s 33(k) of the Crimes (Sentencing) Act, although this is tempered to some degree in view of the experts’ evidence that the accused has been less than fulsome in his account of the incident.
206․For the reasons outlined above, I have also taken into account the fact that the accused’s conduct resulted from a mental impairment (s 33(v) of the Crimes (Sentencing) Act). By reason of that mental impairment, the accused’s degree of moral responsibility for his conduct is significantly lowered. The medical evidence is unanimous that at the time of the incident, the accused was unable to control his conduct and did not appreciate that the conduct was wrong. As a result, I accept that punishment, accountability, general deterrence, and specific deterrence “should be significantly moderated as sentencing considerations”: see Ophel at [27]; ss 7(a)-(b) and 33(1)(i) of the Crimes (Sentencing) Act.
207․However, I am of the view that the need to protect the community “balance(s) out” the reduction of the accused’s diminished moral culpability: see similarly Veen (No 2) at 477. The conduct of the accused which gave rise to the offences demonstrates that, unless the accused’s mental impairment can be satisfactorily treated, he presents a grave risk to the community. His conduct was entirely unprovoked, and resulted in the death of one victim and serious injury to two other victims.
208․As outlined in the medical evidence, the circumstances of this case (including the accused’s claimed amnesia) render it difficult to accurately assess the accused’s risk of re-offending. Professor Greenberg observed that schizophrenia will often be a chronic condition. Dr Furst and Professor Greenberg both considered that long-term psychiatric care is necessary to make any accurate risk assessment or risk management evaluation of the accused.
209․In setting the nominated term for each offence, I have also given significant weight to the need to recognise the harm done to the victims of each crime and to the community.
210․The requirement in s 302(2) of the Crimes Act to set a nominated term is expressed as a requirement to nominate a term for “that offence”. Section 302(4)(b) provides for a nominated term to be ordered to be served consecutively, or partly consecutively with another nominated term. In view of these matters, I consider that it is appropriate for me to specify separate nominated terms for each of the three offences: s 302(4) of the Crimes Act; cf Barker at [100]. In so doing, I have taken into account considerations of totality. In particular, in assessing “best estimate” of the sentences that would have been imposed if the accused had been found guilty of the offending, I have taken into account that all three offences were part of one course of conduct, but also that the three offences concerned three victims, one of whom lost his life, and two of whom suffered extensive permanent injuries as a result of the accused’s actions.
211․Taking into account each of these considerations, I conclude that the “best estimate” of the sentences that would have been appropriate if the accused had been found guilty of the three offences are:
(i)Count 1: A sentence of 25 years’ imprisonment
(ii)Count 2: A sentence of 15 years’ imprisonment
(iii)Count 4: A sentence of 15 years’ imprisonment
212․Counts 2 and 4 should be accumulated by two and a half years respectively, leading to an overall aggregate of 30 years’ imprisonment. The accused has been detained since 20 February 2021. The nominated terms should be backdated to that date pursuant to s 302(4) of the Crimes Act.
213․Accordingly, the nominated term for count 2 will commence on 20 February 2021. The nominated term for count 4 will commence from 20 July 2023. The nominated term for count 1 will commence on 20 February 2026.
Orders
214․For the above reasons, the following orders are made:
(1)A special verdict of not guilty by way of mental impairment is entered under s 321(2) of the Crimes Act 1900 (ACT) in respect of the following offences:
(a)Count 1 (CC 2021/2238), that the accused murdered Michael Allen Clement Williams;
(b)Count 2 (CC 2021/2239), that the accused attempted to murder Simon Phillip Tyler; and
(c)Count 4 (CC 2021/2240), that the accused attempted to murder Asha Bixenta Miller.
(2)I order that the accused be detained in custody for immediate review by the ACAT under s 180 of the Mental Health Act 2015, pursuant to s 324(2)(a) of the Crimes Act 1900 (ACT).
(3)I impose the following nominated terms:
(a)Count 1 (CC 2021/2238), 25 years, to commence on 20 February 2026 and expire on 19 February 2051;
(b)Count 2 (CC 2021/2239), 15 years, to commence on 20 February 2021 and expire on 19 February 2036;
(c)Count 4 (CC 2021/2240), 15 years, to commence on 20 July 2023 and expire on 19 July 2038.
| I certify that the preceding two hundred and fourteen [214] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 31 August 2023 |
ANNEXURE A – DIRECTIONS
Onus and Standard of Proof
The burden of proof of the guilt of the accused is placed squarely on the prosecution. The accused is presumed to be innocent unless and until the prosecution persuades me that the accused is guilty of the elements of the offence beyond reasonable doubt.
It follows that if I am left unable to decide whether the prosecution has proved its case, in relation only to the physical elements of the offence, beyond reasonable doubt, even though I might suspect that the accused committed the offence, the accused is entitled to the benefit of that doubt and I must find him not guilty simpliciter.
Mental impairment
To enter a verdict of not guilty by reason of mental impairment, I must be satisfied, on the balance of probabilities, that when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that—
(a) he did not know the nature and quality of the conduct; or
(b) he did not know that the conduct was wrong; or
(c) he could not control the conduct.
A “mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
A “mental illness” is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Fact Finding
The facts that I find must be based on the evidence. In this case, that includes the evidence included in the Prosecution Tender Bundle, which was tendered without objection.
In assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will.
Inferences
I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances.
Expert evidence
In this case, reports of Dr Richard Furst, Professor David Greenberg and Professor Iain MacGregor were tendered as expert evidence.
The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
In the present case, expert evidence was admitted to provide me with information and an opinion on the mental impairment of the accused in relation to the criteria set out in s 28 of the Criminal Code 2002 (ACT). These topics are within each experts’ expertise but are likely to be outside the experience and knowledge of the average lay person.
The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.
I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
The accused did not give evidence
The accused has not given any evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the physical elements of the offences charged. There is no obligation on an accused person to give or call evidence in a criminal trial, nor in a hearing under s 321 of the Crimes Act. The accused is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that he is guilty of the physical elements of the offences charged (and I am satisfied either of the matters listed in s 321(2) of the Crimes Act or of the fault elements of the offences charged).
It follows that the accused is entitled to say nothing and make the prosecution prove his guilt to the high standard required. I cannot use the accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.
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