Justin Anthony Firth Complainant AND :JBM Defendant - [2018] NTLC 34

CITATION:Justin Anthony Firth v JBM [2018] NTLC034
PARTIES:Justin Anthony FIRTH
v
JBM

TITLE OF COURT:  Local Court
JURISDICTION:  Criminal
FILE NO(s):21744064, 21758768, 21759965
DELIVERED ON:  30 July 2018
DELIVERED AT:  Darwin
HEARING DATE(s):  27 February 2018
JUDGMENT OF:  Chief Judge Lowndes
CATCHWORDS:
CRIMINAL LAW – MENTAL IMPAIRMENT DEFENCE – DISMISSAL
PROCESS UNDER SECTION 77 OF THE MENTAL HEALTH AND RELATED
SERVICES ACT – LACK OF KNOWLEDGE THAT CONDUCT WAS WRONG
Mental Health and Related Services Act s 77
O’Neill v Lockeyer [2012] NTSC 10 followed
R v Porter (1933) 55 CLR 182 followed
REPRESENTATION:
Counsel:
Complainant:  Mr D Dalrymple
Defendant:Ms M Chen
Solicitors:
Complainant:  DPP
Defendant:NTLAC
Judgment category classification:       B
Judgment ID number:  [2018] NTLC 34
Number of paragraphs:  150

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21744064, 21758768, 21759965
BETWEEN:

Justin Anthony Firth

Complainant

AND:

JBM

Defendant

REASONS FOR JUDGMENT
(Delivered 30 July 2018)

CHIEF JUDGE LOWNDES
INTRODUCTION

The defendant was charged with the following offences:
·Three counts of engaging in conduct that contravenes a domestic violence order (file number 21744064);
·One count of damage to property (file number 21758768); and
·One count of breach of bail, one count of drive unregistered, one count of drive uninsured and one count of failing to produce a licence on request (file number 21759965).
The defendant sought to have all the charges dismissed pursuant to s 77 of the Mental Health and Related Services Act (MHRSA). To that end certificates pursuant to s 77(2) of the MHRSA were requested and in due course provided to the Court.
The Chief Health Officer, Dr Heggie, provided a s 77 certificate in relation to each of the three criminal files. In accordance with s 77(3) of the Act those certificates were issued on the basis of advice from a designated mental health practitioner, Mr Tim Jacobs.
In relation to file numbers 217444064 and 21758768 Dr Heggie certified that:
(a)the defendant was suffering from a mental illness or mental disturbance at the time of carrying out the conduct constituting the alleged offences and
(b)that the mental illness or mental disturbance was likely to have materially contributed to the conduct.
With respect to file number 21759965 Dr Heggie certified that although the defendant was suffering from a mental illness or mental disturbance at the time of carrying out the conduct constituting the alleged offences, that mental illness or mental disturbance was not likely to have materially contributed to the conduct.
The advice from Mr Jacobs, which took the form of a report, supported the above certifications as well as documenting the reasons for the opinions he had formed (Exhibit 2).
The application for dismissal of charges was heard by the Court on 27 February 2018. The only witness called to give evidence at the hearing was Mr Jacobs.
THE DISMISSAL PROCESS UNDER SECTION 77 OF THE ACT
The process for dismissal of charges under s 77 of the MHRSA begins with a request made by the Court to the Chief Health Officer for a certificate in the approved form stating:
(a) whether at the time of carrying out the conduct constituting the alleged offence the person was suffering from a mental illness or mental disturbance; and
(b) if the person was suffering from a mental illness or mental disturbance – whether the mental illness or disturbance is likely to have materially contributed to the conduct: s 77 (2) of the MHRSA.
At the next stage of the process, the Chief Health Officer must not give the Court the certificate unless he or she has received and considered advice on the person from an authorised psychiatric practitioner of designated mental health practitioner: s 77(3) of the MHRSA.
Section 77(4) then goes on to state:
After receiving the certificate, the court must dismiss the charge if satisfied that at the time of carrying out the conduct constituting the alleged offence:
(a) the person was suffering from a mental illness or mental disturbance; and
(b) as a consequence of the mental illness or disturbance, the person:
(i)did not know the nature and quality of the conduct; or
(ii)did not know the conduct was wrong; or
(iii)was not able to control his or her actions
In Police v K (a decision of the Local Court, delivered on 21 December 2017, pp 6-8) I had occasion to refer to the comprehensive discussion by Barr J in O’Neill v Lockeyer [2012] NTSC 10 pp 6-7 concerning the purpose and evidentiary effect of a s 77(2) certificate:
In that case Barr J held that the court could not rely on the certificate alone, without further evidence for a number of reasons:
·“The statements made by the Chief Health Officer in the certificate are necessarily based on opinion: the opinion of the Chief Health Officer, informed by the advice (factual details and opinion) of an “authorised psychiatric practitioner or designated mental health practitioner” under s 77(3);”
·“The opinion of the Chief Health Officer may be an expert opinion actually reached by the Chief Health Officer himself or herself, or may be a simple transmission of the opinion of another person, that is, of the psychiatric practitioner or mental health practitioner who provided the advice under s 77(3);”
·“The opinion of the Chief Health Officer may be a combination of both;”
·“The court should not rely exclusively on a s 77(2) certificate for the purpose of satisfying itself under s 77(4) that “at the time of carrying out the conduct constituting the alleged offence the person was suffering from a mental illness or disturbance”;”
·“In many cases the court ought not to rely at all on a s77(2) certificate for the purpose of satisfying itself under s 77(4)(a). The certificate may not be admissible in evidence, and even if admissible the weight to be accorded to it may be nil or slight;”
·“The certificate is not binding on the court, and the court must consider all the evidence;” [1]
·“An examination by the court of the evidence will reveal the basis on which the Chief Health Officer made the statements in the certificate. If they represent an expert opinion actually reached by the Chief Health Officer himself or herself; or if, on the evidence, the facts on which the expert opinion is based are established, then the statements of opinion would probably be admissible and entitled to such weight as the court thinks fit. If the statements in the certificate are merely a transmission of the opinion of another person, then the certificate will be inadmissible for the purposes of the court’s consideration of the s77(4) matters, and would in any event have little evidentiary weight.”
In the same case I made reference to His Honour’s statement that the court should always “go behind the certificate”.[2] I also referred to the following observation made by His Honour:[3]
Whether the court should receive as evidence the report on which the Chief Health Officer has relied is a separate question, to be answered by the court by reference to relevance and admissibility, as well as the principles relating to the receipt of expert evidence.
As stated in Police v K (p 7), His Honour concluded that the court’s power to dismiss charges pursuant to s 77(4) of the Act was not dependent on an initial establishment of the causal link between the defendant’s mental state and the conduct in question through the s 77 certificate”:[4]
The court’s power to dismiss charges pursuant to s 77 (4) can only be exercised after the court has received a certificate from the Chief Medical Officer requested by the court under s 77(2)…
…notwithstanding the requirement that the court first receive a certificate from the Chief Health Officer before proceeding under s 77(4), the court’s power to dismiss charges pursuant to s 77(4) is not dependent on the establishment of the causal link, via the s 77 certificate, between the defendant’s mental state and the conduct in question.
The court has an independent role to consider and assess the evidence in any criminal proceeding where it is exercising summary jurisdiction. The court hears the evidence in chief and cross-examination of all prosecution and defence witnesses (including possibly the defendant). It therefore follows that the court’s findings and conclusions may be different from the matters stated by the Chief Health Officer in the s 77(2) certificate. So, for example, even if the certificate of the Chief Health Officer certifies in the negative to the issue in s77 (2)(a), or in the affirmative to the issue in s 77(2)(a) but in the negative in s77(2)(b), the court might well arrive at an opposite conclusion after considering the identical issue to s 77(2)(a) as part of its s 77(4)(a) deliberations and may make findings under s77(4)(b) inconsistent with the certificate of the Chief Health Officer under s77(2)(b).
As stated by Barr J in O’Neill v Lockeyer , “it is for the court and not the Chief Health Officer to consider the matters in s 77(4)(b)” and “the Chief Health Officer must leave the s 77(4)(b) matters for the consideration and determination of the court”.[5] The reasons for that were explained by Kelly J in Mununggurr at [16]:
…the certificate is directed to a different question from that to be decided by the Court under s 77(4). Both the Chief Medical Officer and the Court must determine whether at the time of carrying out the conduct constituting the alleged offence the person was suffering from a mental illness or mental disturbance. Thereafter the enquiries differ. The Chief Health Medical Officer must state whether the mental illness or disturbance is likely to have materially contributed to the conduct. That is a different matter from that which the Court must determine under s 77(4), namely whether, as a consequence of the mental illness or disturbance, the person: (1) did not know the nature and quality of the conduct; or (2) did not know the conduct was wrong; or (3) was not able to control his or her actions.
Finally, but not least, it is important to bear in mind Barr J’s observations as to the purpose of a s 77 certificate:[6]
The purpose of the s77(2) certificate is to give a preliminary indication to the court and to the parties as to whether the defence of mental illness/mental disturbance might be available. In practice, given that the court has to request the certificate, the court could probably have already detected in the facts or evidence some indication of mental illness/mental disturbance on the part of the defendant. The certificate takes the consideration to the next stage by providing an opinion or statement as to whether (or not) at the time of the alleged offence the defendant was suffering from a mental illness or mental disturbance; and whether the mental illness or disturbance is likely to have materially contributed to the offending conduct.
…the s 77(2) certificate cannot be other than a preliminary indication, a “red flag” as it was described in the submissions before me. Whatever the certificate might say, the onus is on the defendant to satisfy the court as to the matters set out in s77(4) (a) and (b), on the balance of probabilities.
THE RELEVANT EVIDENCE
·The Section 77 Certificates
In my opinion, the s 77 certificates that have been provided to the Court are not admissible as evidence of the matters that are required to be satisfied in accordance with s 77(4) (a) and (b) of the MRHSA.
As the certificates of Dr Heggie purport to be opinions, the admissibility of those opinions is governed by the provisions of s 79 (1) of the Evidence (National Legislation) Act.
The preconditions for admissibility of opinion evidence under s 79(1) are:
1.The person expressing the opinion must have specialised knowledge;
2.That specialised knowledge must be based on the person’s training, study or experience; and
3.The opinion must be wholly or substantially based on that specialised knowledge.
These preconditions have not been satisfied, and therefore the certificates are not admissible under s 79 of the Act as an exception to s76 which establishes the “opinion rule” – which operates to exclude evidence of an opinion which a party seeks to use in order “to prove the existence of a fact about the existence of which the opinion was expressed”.[7] However, even if the certificates were admissible under s79(1) of the Act they should be given no weight.
·Mr Jacobs’ Evidence
It remains to consider the evidence given by Mr Jacobs - both documentary and oral. This evidence is constituted by the written advice/report he gave to the Chief Health Officer as well as the evidence he gave at the hearing of the s 77 application on 27 February 2018.
It is proposed to first set out in detail Mr Jacobs’ evidence. That will be followed by a consideration of the admissibility of his evidence and the weight, if any, to be accorded to that evidence.
·Mr Jacobs’ Advice/Report to the Chief Health Officer
By way of preamble to his advice, Mr Jacobs listed the following qualifications:
Designated Mental Health Practitioner(DMHP) since May 2016 and a member of the Top End Health Service Forensic Team (FMHT) since 21 April 2016 – registered nurse with the Australian Health Practitioner Regulation Agency – academic qualifications Batchelor of Nursing (University of Tasmania 2000); Graduate Diploma in Nursing (Flinders University 2004); and Masters in Forensic Mental Health (Griffith University 2014) – currently undertaking a Batchelor of Behavioural Studies Psychology through Swinburne University.
In his advice to the Chief Heath Officer Mr Jacobs formed the following opinions:
1. In relation to file numbers 21744064 and 21758768 he expressed the opinion that the defendant was suffering from a mental illness or mental disturbance at the time of the alleged offences and that his mental illness or disturbance was likely to have materially contributed to the conduct constituting the offences.
2. In relation to file number 217599965 he expressed the opinion that although the defendant was suffering from a mental illness or mental disturbance at the time of the alleged offences his mental illness or disturbance was not likely to have materially contributed to the conduct constituting the offences.
In reaching these opinions, Mr Jacobs relied upon the following information.
1.    The defendant was involuntarily admitted to the Top End Mental Health Services (TEMHS) inpatient psychiatric facility from 4 to 8 August 2017 (which was during the same month as the offences alleged on file number 21744064). The Discharge Summary completed by Dr Sarah Elbelassi (resident medical officer) stated that the diagnosis was “Relapse Schizophrenia due to non -compliance (likely substance use may be contributing)”. It was also reported that the defendant had experienced suicidal ideation, and was suffering from paranoid delusions that his former girlfriend (Ms Ricki Killeen, the victim in the matter) was involved with outlaw motor cycle gangs and that they had been injecting him with methamphetamines without his consent.
2.    On 10 August 2017, 3 days prior to the alleged offences on file number 21744064, the defendant was assessed at his place of residence by Dr Rajiv Weerasundera (psychiatrist) who reported that he was “anxious and paranoid”, presenting with “persecutory delusions of being poisoned”. The psychiatrist also noted “schizophrenia, early signs of relapse” plus high risk of deterioration.
3.    On 21 August 2107, two days following the third alleged offence on file 21744064, the defendant was assessed by a social worker, Ms Sophie Smith, who noted that the defendant’s thought content included: “ paranoid and persecutory delusions, continues to voice concerns about being poisoned and his ex - girlfriend having revenge on him having injected him with drugs”. When she subsequently assessed the defendant on 29 August 2017 the social worker recorded that he was experiencing: “ongoing paranoid and persecutory delusions, these seen to have diminished slightly (sitting under the surface) still believes that there was a revenge attack against him and people were injecting his feet with drugs at night”.
4.    On 13 September 2017, the defendant was again assessed by the social worker, it being noted that he “continued to be preoccupied discussing the ‘revenge attack’ that he felt had happened to him. It was difficult to interrupt [the defendant] when he was discussing this and he spoke over [his] CM (case- manager) to continue this conversation. [The defendant] spoke about this at some length”.
5.    On 28 September 2017 the defendant was again assessed by the psychiatrist (Dr Rajiv Weerasundera) when “paranoid and persecutory delusions” were noted.
6.    On 11 October 2017, about 12 days prior to the alleged offence associated with file number 21758768, the defendant was once again reviewed by the social worker. It was recorded that ongoing paranoid and persecutory delusions remained, including the defendant’s belief that he had been previously assaulted by his former girlfriend (“revenge attack”).
7.    On 30 October 2017, about 7 days after the alleged offence associated with file number 21758768, the defendant was again reviewed by the social worker, with the following being noted: “ ongoing paranoid and persecutory delusions remain, and this included [the defendant’s] belief that he was previously assaulted by his ex-girlfriend: revenge attack”.
8.    On 15 November 2017, Dr Gregory Spicer (psychiatric registrar) assessed the defendant, recording that he had stated that the mafia might have been involved in his girlfriend injecting him with drugs previously. The defendant was assessed as being “delusional, potentially experiencing perceptual disturbances, and requiring inpatient psychiatric assessment and admission”.
9.    On 15 November up until 20 December 2017, the defendant was admitted to the TEMHS inpatient psychiatric facility.[8] According to the discharge summary completed by the resident medical officer, Dr Emma Martin, the defendant’s admission was due to “…relapse of his condition (chronic schizophrenia secondary to medication non-compliance and substance use – THC and ice”. It was reported that the defendant’s “thought content included the mafia sending him messages, attempting to recruit him” Auditory hallucinations and lack of insight into his mental health symptoms were also recorded. It was further recorded that over the course of his admission his auditory hallucinations resolved; however, the mental state examination conducted at the time of his discharge revealed “ongoing symptomology, yet of a reduced intensity”. His “persistent paranoid/persecutory delusions regarding the mafia” were also recorded.
During the period of his inpatient admission, the defendant was also assessed by Dr Ranjit Kini (forensic psychiatrist) for the purposes of providing an assessment on patient risk and management.[9] Dr Kini recorded the following on 8 December 2017:
On occasions, it was difficult to understand [the defendant’s] rationale/thread of thinking suggesting hints of underlying formal thought disorder. He continued to express a range of delusional beliefs (paranoid, persecutory, reference, grandiose themes). He continued to express delusional perception. He did not report passivity experiences, but his accounts suggested some thought interference – he believed that the mafia could put voices into his head, to manipulate his thinking. His insight into his mental illness was poor, he remained convinced that his beliefs about persecution by the mafia were based in reality.
Furthermore, whilst perceptual disturbances were not evident at the time of Dr Kini’s assessment, Dr Kini noted the following on 8 December 2017:
Prior to [the defendant’s] admission, for 2 -3 months, he reported hearing male and female voices speaking in English. He said that at times they repeated his name tried to get his attention by explaining “situations I didn’t know”. He alluded to auditory hallucinations both in 2^nd and 3^rd person, including command hallucinations – the voices “were guiding me along a path”. He said that the voices did not command him to harm himself or others. However, he said that the voices explained “a story about the mafia”. In short, the voices were instrumental to perpetuating his delusional belief system about the Italian mafia targeting him either for recruitment or for harm. He believes that the voices belong to the mafia.

During the defendant’s inpatient admission it was also recorded in a “Clinical Details and Management Plan re Community Management Order” dated 19 December 2017 that the defendant had delusional beliefs that the Chinese and Italian mafia were “after him because he noticed signs indicating this such as the knob on his window being black”. The defendant admitted to slashing the victim’s tyres in relation to the alleged offence associated with file 21758768, and that he did so in an attempt to alert police officers about activities of the mafia in the neighbourhood.
On 27 December 2017, 2 days before the alleged offences associated with file number 217759965, the defendant was assessed by Dr Spicer who recorded in the medical records that his delusional content remained.
Dr Spicer reviewed the defendant on 2 January 2018, 4 days after the alleged offences associated with file number 217599965. The following impression appeared in the medical records: “schizophrenia/persistent delusional disorder not fully stabilised…” Dr Spicer’s notes recorded the following:
Fixed delusions persist. “The mafia thing” – today relates that he is “fairly sure” the mafia are using “child-like people to enter your house while you’re sleeping…they inject you with drugs to obtain information from you”. States that he knows this because he saw two of these “little guys” about 8 months ago and prior to that he saw a “head at the end of a couch and two little hands”. Feels the mafia have been doing this “for quite a while, but I’ve only {recently] started to realise what they’ve been doing”.
Continues to lack insight – deterioration of presentation last week. Blames his partner for the “methamphetamine overdose” that led to his breach of bail over the DVO – states his then partner injected him with the drug “while I was sleeping”. Feels she was responsible for him starting to inject meth.
At the time of Mr Jacobs’ report the defendant remained under the psychiatric care of the Top End Mental Health Adult Team, his case worker being Ms Sophie Smith. At that time the defendant also remained on a Community Management Order for a period of 6 months from 21 December 2017 to 21 May 2018, receiving a fortnightly depot Zyprexa Relprevv 405mg.
In preparing his advice to the Chief Health Officer, Mr Jacobs interviewed the defendant on 4 January 2018. During that interview the defendant advised that he had not used methamphetamines since prior to his last psychiatric inpatient admission which occurred in November/December 2017. The defendant also reported that he previously smoked methamphetamines on a fortnightly basis for approximately 3 days in a row, but he never injected. He informed Mr Jacobs that he used the drug as a means of coping with his father’s illness. The defendant also reported that he consumes cannabis approximately 5 days per fortnight to calm himself and to manage the stress associated with his father’s illness.
In his advice to the Chief Health Officer, Mr Jacobs dealt with the relationship between the defendant’s mental illness and the alleged offences.
In relation to the alleged offences associated with file number 21744064 Mr Jacobs reported as follows:
1.The defendant admitted that he had sent text messages to the victim;
2.The defendant explained that the reasons for doing so were that he believed that the victim had previously assaulted him by deliberately injecting him without his consent with methamphetamines whilst he was asleep;
3.The defendant reported that this was a “revenge attack” against him by the victim;
4.The defendant stated that the effects of the supposed injection of methamphetamines lasted from 3 to 7 days, and described symptoms at the time as feeling anxious, confused thinking and impaired memory;
5.The defendant believed that the intoxicating effects from the injection caused him to text the victim, thereby breaching the DVO;
6.As to the likely reasons for the “revenge attack”, the defendant stated that the victim had a “deep connection” with him, and was very upset that he had ended their relationship. He also indicated that the victim was angry, as she believed that he had been having sexual relationships with other people whilst they were together, and that injecting him would cause his mental health to deteriorate. Mr Jacobs stated that “his explanation for his belief that the victim had injected him was unclear, and likely to be indicative of mental health symptomology; likely a delusion”;
7.When asked how he would know he had been injected if he was asleep at the time, the defendant “advised somewhat incomprehensibly, that the mafia were responsible for making him sleep heavily”. He also indicated that the methamphetamine effects may have partially woken him and knew he had been injected because he saw blood on the floor, which he regarded as being the result of the injection;
8.The defendant reported that his “capacity to know right from wrong was impaired at the material times”. He indicated that at the times he breached the DVO he believed that it was something he needed to do “to help the situation”. He referred to a number of matters he believed that had occurred while they were living together and to the belief that the victim thought he was trying to arrange someone to sexually assault. However, he now considered that he did the wrong thing;
9.The defendant also reported that he believed he was becoming mentally unwell at around the time of the alleged offences, and therefore “forgot about the DVO requirements” and that he was “not in the right frame of mind” at the time due to his mental illness.;
10.The defendant denied substance abuse at the time of the alleged offences; however, he believed that “he was intoxicated with the methamphetamines he believed had non -consensually been injected with whilst he was asleep”;
With respect to the alleged offences associated with file number 21758768, Mr Jacobs stated as follows:
1.The defendant reported that at the material time he had been receiving what he considered to be “subliminal messages” from Facebook, and that these subliminal messages “presented in the form of a voice in his head (auditory hallucination) telling him that should damage the tyres of parked red and black car which be believed was owned by the victim in the matter, Ms Keeley Atkins, boyfriend”;
2.The defendant reported that he believed at the material time, and still at the time he was interviewed by Mr Jacobs, that the red and black colours of the car he damaged signified that it was a car owned by the mafia. The defendant reported that he believed that if he did something to the car, then he might get “credit” from his police officer neighbours for not joining the mafia. He also reported that damaging the tyres was a means to communicate with his police officer neighbours about the mafia’s presence, as he reported that “they, his neighbours, were not easily contactable due to the security of their house, and that he would be unable to shout his concerns over the fence and walls of his neighbours property; and that he no longer had the phone number of his neighbours to phone them”;
3.The defendant reported that he believed at the time that the boyfriend of the victim, who the defendant believed owned the vehicle, was involved in getting information about him and his family through his relationship with the victim, and that this information was for the purposes of the mafia. The defendant also reported that at the time there was a silver car in the same location and that this car belonged to the police who were “looking after him” in regards to the mafia, and that these guys were “the good guys”;
4.The defendant reported that he believed at the material time that he did the right thing, and still believes he did; however, in hindsight he reported that instead of trying to communicate his concerns in the way that he did (by damaging the tyres), he could have telephoned Australian intelligence services and advised them of his concerns. He stated that he now feels “sorry” for the victim’s boyfriend who he believes owned the vehicle that he damaged. The defendant indicated that at the time he believed that the boyfriend had willingly joined the mafia; however he now knows that “no body deliberately chooses to join the mafia, instead that the mafia choose them”;
5.When asked whether he was using any illicit substances at the material time, the defendant answered “No I wasn’t; I don’t think”.
In relation to the alleged offences associated with file number 21759965, Mr Jacobs reported as follows:
1.The defendant explained that he had breached the curfew conditions of his bail because at the material time he received a phone call from a girlfriend who needed cigarettes and wanted his company;
2.The defendant reported that he knew he would be breaching his curfew by driving; however, as he had already done so on a number of other occasions he believed he would not be caught by police. The defendant also indicated that because he had no money he did not take his wallet with him which contained his driver’s licence. Therefore, he was unable to produce his licence when requested to do so by police;
3.The defendant reported that he had failed to attend to the registration of his motor vehicle and third party insurance because he had “ a lot on his mind with mental health”;
4.The defendant did not recall any particular symptomology at the time of the alleged offences;
5.The defendant said that he had only recently been discharged from psychiatric impatient care and was not intoxicated at the time with any substances.
Mr Jacobs made the following statements and observations, and proffered the following opinions in relation to the defendant and the alleged offending associated with file number 21744064:
1.He noted that whilst the defendant’s use of illicit substances such as methamphetamine and cannabis were apparent in the clinical databases , also apparent were “multiple episodes of diagnosed mental illness and psychotic symptomology- both before and after the alleged offences”;
2.He stated that “it was evident from examination of the clinical databases that [the defendant] has a diagnosis of schizophrenia”. He noted that during the month of August 2017 in which the alleged offences occurred, the defendant “received a number of psychiatric assessments including an involuntary psychiatric inpatient admission”. He also noted that “the primary impressions of such assessments were that he was experiencing paranoid and persecutory delusions that incorporated the victim in the matter, Ms Ricki Killeen”. Accordingly, there was “available indication that [the defendant] had experienced symptomology of schizophrenia that would equate to the definition of mental illness as per the MHRSA (paranoid and persecutory delusions and likely perceptual disturbances around the time of the alleged offences, and due to the enduring nature of his symptoms, on the balance of probability, [the defendant] was more likely than not to have had a mental illness at the time of the alleged offence”.
3.He expressed the opinion that “the documented paranoid and persecutory delusional beliefs involving the victim in the matter … and associated limited insight and impaired judgment resulted in [the defendant] acting on such beliefs in a way that breached the DVO requirements, and therefore his symptoms of mental illness materially contributed to the offending behaviour”;
4.He stated that “his explanation at the index offence interviews for his alleged behaviour were at times difficult to follow, and in my opinion often illogical and at times incomprehensible; also included the self-reported symptoms of anxiety, confusion and impaired memory”. He further stated: “In addition, he reportedly believed that by contacting the victim in the matter that he was somehow doing something to …’help the situation’; thereby, clearly, in my opinion, clearly exhibiting impaired judgment”;
5.He expressed the opinion that the defendant’s symptoms of “severe mental illness at around the time of the alleged offences, which included delusions that incorporated the victim in the matter, likely disturbances in perception, limited insight and impaired judgment secondary to severe mental illness and self-reported confused thinking and impaired memory resulted in [the defendant’s] lack of capacity to reason with a moderate degree of sense and composure about whether his conduct as perceived by a reasonable person was wrong at the time of the alleged offences”;
6.He expressed the opinion that the defendant was suffering from a mental illness or mental disturbance at the time of the alleged offences and that mental illness or mental disturbance was likely to have contributed to the conduct.
With respect to the alleged offending associated with file number 21758768, Mr Jacobs stated and opined as follows:
1.He again noted that although the defendant’s use of illicit substances was apparent in the clinical databases, the defendant also had “multiple episodes of mental illness and psychotic symptomology”;
2.He stated that “it was evident from examination of the clinical databases that [the defendant] has a diagnosis of schizophrenia and at around the time of the alleged offence that he was experiencing symptomology of schizophrenia that would equate to the definition of mental illness as per the MHRSA”. He opined that “it was more likely than not that [the defendant] was also experiencing a mental illness at the time of the alleged offence due to his recorded history both prior and post the alleged offence of enduring symptomology”. He noted that during the month of October 2017 in which the alleged offence occurred he received a number of psychiatric assessments and also required an inpatient psychiatric admission in the following month (about 3 weeks after the alleged offence). Mr Jacobs noted that “the primary impression recorded in CCIS was that he was experiencing persistent paranoid and persecutory delusions”;
3.Mr Jacobs expressed the opinion that “[the defendant] acted on his delusional beliefs about the mafia, thereby resulting in the alleged offence, due to the intensity and nature of the delusion, his limited insight and impaired judgment secondary to mental illness, as well as likely perceptual disturbances”. He noted that it was recorded in CCIS documentation that the defendant had reported that he damaged the victim’s tyres in an attempt to alert his police officers neighbours that mafia activity was occurring in the area (“victim was the daughter of the police officer, although [the defendant] reportedly believed that the vehicle was owned by the victims boyfriend/mafia”) and that he was also likely to have been experiencing auditory hallucinations about his neighbours;
4.He noted that during the index offence interview the defendant reported that he felt compelled to communicate in this way (that is damaging the vehicle’s tyres) with his police officer neighbours so that they may appreciate his efforts of abstaining from joining the mafia. He also noted that the defendant reported during the interview that he believed the vehicle he damaged belonged to the mafia and the person who owned the vehicle was working for the mafia to gather information on both him and his family. Mr Jacobs opined that “due to his delusional beliefs and likely perceptual disturbance around the time of the alleged offence … these symptoms of mental illness materially contributed to the offending behaviour”;
5.Mr Jacobs was of the further opinion that the defendant’s “severe symptoms of mental illness at around the time of the alleged offences, which included delusions, likely disturbances in perception and limited insight and impaired judgment secondary to mental illness resulted in [the defendant’s] lack of capacity to reason with a moderate degree of sense and composure whether his conduct as perceived by a reasonable person was wrong at the time of the alleged offences”;
6.Mr Jacobs expressed the final opinion that the defendant was suffering from a mental illness or mental disturbance at the time of the alleged offending and that mental illness or mental disturbance was likely to have materially contributed to the conduct.
In relation to the alleged offending associated with file number 21759965 Mr Jacobs made the following statements and observations and expressed the following opinions:
1.He expressed the opinion that “on the balance of probability it is more likely than not that the defendant was still experiencing a mental illness, as defined by the MHRSA, at the time of the alleged offence due to his documented enduring symptomology”. He noted that there were a number of assessments around the time of the alleged offence – including a discharge from inpatient psychiatric care on 20 December 2017 and assessments by Dr Spicer (psychiatric registrar) on 27 December 2017 (2 days after prior to the alleged offending) and also on 2 January 2018. It was “considered that he remained delusional;
2.Mr Jacobs was unable to provide an opinion that the defendant’s mental illness materially contributed to the alleged offending for a number of reasons. First, the defendant was at the material time visiting his girlfriend and he was aware that he was breaching his bail conditions. Secondly, due to previous undetected breaches of the bail conditions, the defendant thought he could so again without being detected. Thirdly, Mr Jacobs thought that the defendant’s failure to produce his driver’s appeared to be explicable on the basis that he was not carrying his wallet (which contained his licence) because he had no money. Mr Jacobs was of the opinion that “these explanations…were not indicative of mental health symptomology”;
3.Mr Jacobs also stated: “ In addition, due to the extended time period in which his car registration and third party insurance had not been renewed ( allegedly expired on 12 August 2016) resulted in difficulties linking his failure to attend to this matter over an extended time period with symptoms of mental illness at the material time of the alleged offence”;
4.Mr Jacobs stated that the PCIS records recorded that the defendant was intoxicated due to the consumption of alcohol at the time of his arrest. Although he was not able to substantiate that report, this “element limited [his] capacity to consider that symptoms of mental illness materially contributed to the alleged offence”. Mr Jacobs also noted that “no mention of acute mental health symptoms were recorded in PCIS at that time”;
5.Mr Jacobs expressed the opinion that whilst the defendant was suffering from a mental illness or mental disturbance at the time of the alleged offending that mental illness or disturbance was not likely to have materially contributed to the conduct.
·Mr Jacobs’ Oral Evidence
Mr Jacobs repeated the qualifications referred to in his advice to the Chief Health Officer. He gave the following evidence concerning his work experience since 2001.
Mr Jacobs began nursing in 2001 and has worked in the mental health environment since 2003. He commenced at Risdon Prison in 2003 and worked there for a period of 12 months. That position involved general nursing as well as working as a psychiatric liaison person alongside the psychiatric director. From there he relocated to the psychiatric intensive care unit at Royal Hobart Hospital and remained in that position until mid - 2005. His work at the hospital involved working with severely disturbed people with mental illness in a secure unit. He subsequently went overseas and worked in the UK for over12 months. During that time he worked in mental health settings as well as alcohol and other settings. Mr Jacobs returned to Australia in 2006, working for an 18 month period first in a mental health unit in Alice Springs before transferring to Top End Services at the Cowdy Ward Joan Ridley Unit. Mr Jacobs then worked with Alcohol and Other Drugs Services in the Top End before moving to Tasmania where he worked for Drug and Alcohol Services as well as in a secure mental health forensic unit on a casual basis. He returned to Alice Springs in 2010 where he worked at the Mental Health Unit of the Alice Springs Hospital. He then transferred to the Alcohol and Other Drug Services in Alice Springs where he remained until May 2011. He subsequently worked for International Health and Medical Services, involving the psychiatric care of refugees. In 2012 Mr Jacobs commenced employment at the Frankland Ward of Graylands, Perth, which is a secure forensic mental health unit, and worked there for 12 months. In January 2014 he returned to work at the Mental Health Unit in Alice Springs as well as working as a psychiatric liaison person with the Alice Springs Hospital. Around April 2016, Mr Jacobs took up a secondment with the Forensic Mental Health Team initially with Central Australia Mental Health Services and since July 2017 in the Top End, where he continued to be employed as at the date of the hearing.

In his oral evidence given at the hearing, Mr Jacobs adhered to the opinions that he had expressed in his report to the Chief Health Officer.
In writing the report Jacobs said that he had interviewed the defendant a number of times, reviewed the primary information system, Community Care Information System (CCIS) as well as the primary care information system (PCIS). He also reviewed the information in relation to the alleged offending.
Mr Jacobs told the court that CCIS primarily contained information concerning a person’s mental health. He said that PCIS also contained mental health information but was “more geared towards the general health of people”.
Mr Jacobs gave evidence that CCIS contained discharge summaries concerning inpatients and psychiatric inpatient care. He said that some mental health services also write all their notes in CCIS, while other mental health services only write summaries of occurrences or significant events in CCIS, and then make notes on the patient’s medical file.
In the defendant’s case, Mr Jacobs told the court that he obtained a “selective history” from the past psychiatric history primarily from CCIS. The information included a number of assessments completed around the time of the alleged offending, details of the defendant’s admissions, his psychiatric involuntary admission on 10 August 2017 and his subsequent psychiatric admission on 15 November 2017.
In relation to file number 21744064 (alleged breaches of domestic violence orders) Mr Jacobs said that he availed himself of the following information: the details of the inpatient involuntary psychiatric admission on 4 – 8 August 2017, a note by Dr Sarah Al Balushi, subsequent notes placed in CCIS including a note by Dr Rajiv Vasundhara (psychiatrist) on 10 August 2017, an associated note on 21 August 2017 by the defendant’s case manager (Ms Sophie Smith, social worker) and further assessments by Ms Smith as well as Dr Vasundhara.
In relation to the alleged offending associated with file number 21758768, Mr Jacobs accessed information on CCIS which included further indications leading all the way up to the 15th November when the defendant was again admitted to a psychiatric facility, notes made by his case manager and Dr Spicer. He said that he had access to the discharge summary in relation to the 15th November admission as well as information from Dr Kini. Dr Kini’s notes pertained to an assessment undertaken during the defendant’s admission that commenced on 15th November 2017. Dr Kini’s assessment made on 8 December 2017 was also elicited from CCIS.
With respect to the alleged offending on file 21759965, Mr Jacobs examined notes recorded in CCIS, including ongoing assessments indicative of enduring mental illness, a note by Dr Spicer dated 2 January 2018 and a record of placement on a community management order which involved receiving a depot antipsychotic injection.
Mr Jacobs told the court that the interviews he had with the defendant were conducted on a “one-on-one” basis. The interviews were conducted with a view to “systematically examining [the defendant’s] mental state, but primarily to discuss the alleged offences”.
He said that he conducted a mental state examination, which included a combination of formal and informal questions. Mr Jacobs described the process this way:
…questions in regards to the alleged offending behaviour, he’s asked his explanation of what was occurring at the time, what he thought was happening, what his potential symptoms were, what the reasons were around why he did what he did and were there other alternative reasons for his offending behaviour. It is basically to try and determine whether he did have a mental illness or mental disturbance at the time and whether or not symptoms of such materially contributed to the offending behaviour.
Mr Jacobs gave evidence that as regards the alleged offending on file number 21744064 the defendant had explained that he had a belief – recorded in the notes as a delusional belief – that the victim had entered his accommodation without his consent while he was asleep and injected his feet with methamphetamines. The defendant also reported that he believed that this was a revenge attack and “the reasons for such was he felt that the victim…was upset with[him] because she believed he broke up the relationship”. Mr Jacobs stated that “looking through his history” the defendant’s belief that he had been assaulted had been “very much recorded as [being] delusional”.
Mr Jacobs said that with respect to the alleged offending associated with file number 21758768, the defendant gave a number of explanations. He believed the vehicle was owned by the victim’s boyfriend. He believed that he was getting auditory hallucinations from Facebook and was receiving subliminal messages telling him to damage the vehicle. He felt that he wanted to communicate with police officer neighbours that mafia activity was occurring in the neighbourhood. The defendant wanted to earn credit with his neighbours, explaining that he had not joined the mafia, even though they continued to try and get him to do so. The defendant also believed that the victim’s boyfriend was trying to get information about him and his family. He explained that he could not communicate with his neighbours in any other way than by slashing the tyres of the vehicle. He felt that he couldn’t call over the fence and he didn’t have the neighbour’s number. There were also various security measures in place that prevented contact. The defendant stated that he couldn’t just “be shouting on the streets about mafia activity”. He was of the view that due to the colours of the vehicle it looked like a mafia vehicle. He also observed another vehicle – which was silver in colour. He connected that vehicle with police officers who were trying to assist him. He believed that this vehicle was “a good vehicle” whilst the other vehicle was connected to the mafia.
In relation to the alleged offending on file number 21759965, Mr Jacobs stated that the defendant had told him he breached his bail before and thought he could do so again. The defendant reported that he had been contacted by his girlfriend at the time who wanted him to come over to her house. The defendant felt that she needed him. As regards not having his licence, the defendant said that he did not have his wallet with him at the time because he did not have any money. He said that he had not “completed the registration and licensing information because he simply didn’t get around to it”. Mr Jacobs stated that the defendant had been suffering from mental illness for a period of time and he had not managed to attend to those matters.
In relation to file number 21744064 Mr Jacobs stated that “it would seem very evident to me that both before the alleged offence, after the alleged offence and including an inpatient psychiatric admission in the same month of the alleged offence, seemed to me, looking at the clinical details as well as the interview with [the defendant], very clearly was indicative of an enduring severe mental health symptomology”. He felt that it “was improbable that at the time of the alleged offences that [the defendant] was not suffering from a mental illness when he was before and he was after and he was subsequent the number of assessments completed afterwards”. Mr Jacobs believed that “his severe symptomology materially contributed to him acting on his delusional beliefs”. Mr Jacobs noted that persecutory delusions that he been injected by the victim were recorded throughout the notes. He stated that the defendant’s explanations were unclear, but he felt that due to being injected his memory had been interfered with and was confused and anxious. Mr Jacobs said that the defendant had explained that he wanted to speak to the victim because he could not understand why she had injected him. He felt quite aggrieved by that. Mr Jacobs also said that the defendant wanted to speak to the victim about an unrelated matter – namely his belief that the victim thought that he had organised an assault on her. Mr Jacobs said that the defendant had indicated that he felt he was mentally ill at the material time and forgot the requirements of the domestic violence order. He went on to say that “he felt that in accordance with the associated diagnostic symptomology of schizophrenia that [the defendant’s] explanations of mood disturbance, anxiety, confusion and loss of memory were congruent with very well recognised symptoms of cognitive impairment associated with such disorder”. Mr Jacobs referred to a history of perceptual disturbances recorded in the notes, indicating that the defendant was likely experiencing perceptual disturbances at the material time. Mr Jacobs formed the opinion that the defendant lacked “insight due to his severe enduring mental symptomology”. He went on to opine that “[the defendant] lacked judgment, profoundly impaired judgment which [he] considered secondary to the cognitive symptomology associated with schizophrenia”. Mr Jacobs was of the opinion that a “combination of all these factors resulted in [the defendant’s] offending”.
With respect to file number 21758768 Mr Jacobs told the court that the defendant had a well recorded history and he had reported to him symptoms – albeit somewhat after the alleged offending – that he was suffering from delusional beliefs about the mafia. Mr Jacobs said that in his report he had detailed the notes made by Dr Kini, which were to the following effect:
Voices explained a story about the mafia. In short, the voices were instrumental to perpetuating his delusional belief about the Italian mafia targeting him either for recruitment of for harm. He believes that the voice belongs to the mafia.
Mr Jacobs said the following was noted: “He admitted to slashing the victim’s…tyres and did so in an attempt to alert police officers about the activities of the mafia in the neighbourhood”. Mr Jacobs went on to say that [the defendant’s] explanation to me in his recorded previous explanations during assessments completed during his inpatient admission were very similar and I considered ….there is sufficient indication that [the defendant] had a mental illness around the time of the alleged offence, both offences”. In relation to file number 21758768 Mr Jacobs was of the opinion that the defendant’s “delusional beliefs, fixed false delusional beliefs as well as his recorded perceptual disturbances, impairment in insight and judgment” all materially contributed to his offending behaviour (which involve slashing the tyres of the vehicle).
Regarding the alleged offending on file 21744064, Mr Jacobs believed that the defendant’s mental illness materially contributed to the conduct in that he acted on his delusional beliefs. He stated that the defendant had a persecutory belief that the victim had harmed him. He said that it is common for a person with such a belief to actually act upon it. Mr Jacobs said that it was a fixed, false belief and he believed that the defendant was also suffering from perceptual disturbances at the time. He also believed that the defendant’s own self report of cognitive issues materially contributed to the alleged offending. Mr Jacobs said that the defendant indicated that he was confused, anxious and was having problems with his memory. Mr Jacobs believed that these factors also made a material contribution to the alleged offending.
With respect to the alleged offending associated with file number 21759965, Mr Jacobs stated that he considered that the defendant retained severe enduring symptomology associated with mental illness, although he was unable to conclude that the symptoms materially contributed to the offending.
In relation to file numbers 21744064 and 21758768 Mr Jacobs was taken to his opinion that “[the defendant’s] mental illness resulted in his lack of capacity to reason with a moderate degree of sense and composure about whether his conduct as perceived by a reasonable person was wrong. Mr Jacobs said he that stood by that opinion, stating:
…there’s well documented history that [the defendant] was suffering from a severe enduring psychotic mental condition at the time. He was symptomatic. To me it would clearly seem that [the defendant] lacked a capacity to reason with a moderate degree of sense and composure about whether his conduct at the material time, as per a reasonable person, was wrong.
To me it would be more likely than not that [the defendant] would meet the s 74(b) criteria. But I must acknowledge that it is up to the court to be satisfied whether or not that criteria has been met. However, I indicated my opinion in that report.
In saying that his opinion extended to the alleged offending associated with both files, Mr Jacobs went on to state:
There’s slightly different symptoms…slightly different in their context, however perceptual difficulties, very clear in file ending 8768. Perceptual disturbances most likely in 4064. Both files very clear delusional material. Both files very clear lack of insight….
Both files, it would seem, that [the defendant] was experiencing cognitive difficulties, which again is an associated symptom of schizophrenia in the diagnosis and statistical …version five.
Mr Jacobs gave the following evidence during cross–examination.
Mr Jacobs agreed that a diagnosis of schizophrenia is a matter for a qualified psychiatrist. He also agreed that the approach he took in relation to his assessment of the defendant was “one of essentially bootstrapping the conclusions [he] drew on the different recorded diagnoses by a qualified psychiatrist in the documentary record”. Mr Jacobs stated that he did not have the qualifications to make a diagnosis. He stated that he relied upon the diagnosis of schizophrenia which had been recorded in CCIS since 2013.
Mr Jacobs stated that the defendant had an enduring diagnosis, with periods of psychosis secondary to his schizophrenia. He said that diagnosis was maintained by other non-psychiatric personnel who were looking after the defendant.
Mr Jacobs told the court that his reasoning process was “essentially to have regard to the timeframe of those different confirmed diagnosis and extrapolate from that the likelihood of [the defendants] mental state at particular times, in terms of proximity to those times of diagnosis”. He also relied upon the other associated assessments of the defendant.
Mr Jacobs said that he had not formally discussed the defendant’s file with Dr Kini. Nor had he based his opinions on any discussion with Dr Kini. However, he stated that he had included in his report “Dr Kini’s interactions with [the defendant]”.
When asked by the prosecutor whether he was calling upon his own judgment rather than the judgment of an associated psychiatrist in assessing the likely mental state of the defendant at particular times connected with the alleged offending, Mr Jacobs replied as follows:
I mean yes and no. I mean the psychiatrist that I discussed the case with was familiar with [the defendant], and was able to give me indication that he was someone with an enduring mental health condition, with ongoing symptomology.
That part was discussed with a psychiatrist. The psychiatrist was not actually involved as a clinician with [the defendant]. So I am basing, primarily my opinions, as a designated mental health practitioner, from reviewing the clinical information available in the clinical databases.
Mr Jacobs said that he had conducted multiple interviews with the defendant regarding the various criminal files.
The prosecutor took Mr Jacobs to the statement of facts relating to file number 21744064 and asked him a number of questions in relation to the texts that were the subject of the charges. When it was put to Mr Jacobs that there was nothing in the text messages that referred in any way to the matters that had been reported by the defendant during the interview, and they were simply of a sexualised nature, reflecting hostility and a belief as to the victim’s lack of continuing commitment and attraction to him, Mr Jacobs answered as follows:
Looking at the text, to me, I mean again I’m not some sort of text…analysis expert or something along those lines. But they seem to me to be indicative of a number of things.
It did seem to me to be…some sort of sexualised material. They also seem to be somewhat nonsensical as well. So I did ask [the defendant] about this and [the defendant’s] explanation was not included in the report was that there were other texts as well that haven’t been included in the statement of alleged facts. [The defendant’s] explanation also was that he believed that he wrote some of them, but not all of them. He felt that the victim in the matter may have altered or added information to the text that we see before us.
I was also drawn to the various assessments that both before and after, indicating a persecutory delusional belief of the victim. So to me it would seem like his anger and his animosity and hostility towards the victim could very much be congruent with someone experiencing a delusional – persecutory delusional belief. So I mean looking further through the texts, to me, again, all I can say is from my opinion, it does seem to be a mix of different things.
[The defendant’s] explanation when he was texting was the victim had injected him, which is delusional. And he believed that due to that injection, that he was confused. He was anxious. His memory was impaired. To me, all those cognitive deficits associated with his explanation which it made sense to me were very much fitting schizophrenia, rather than someone being injected with methamphetamines, which has been recorded throughout as delusional. It seemed to me these texts could very much meet someone experiencing, or someone exhibiting symptoms of mental illness, beyond simply just texting someone.
Mr Jacobs accepted that people breaking up in a relationship breach a domestic violence order for a number of reasons other than mental illness However, he went on to say:
To me it would seem though that the nature of the text, and you would seem to have a different view, but to me, looking at the text, to me they were somewhat incomprehensible at times. But primarily …[the defendant] has both prior to the alleged offence, and his admission is indicative, his inpatient admission prior to these alleged offence, was of a persecutory delusion that the victim in the matter had injected him.
So my opinion that [the defendant] was acting – on the balance of probability, on that delusion, due to his well –recognised enduring mental health condition, I thought that was more likely than [the defendant] acting on – just simply being responding to a domestic violence issue. I felt that it was his delusional beliefs. He was acting on such, which is associated with his schizophrenia.
When again asked why there was no reference to the defendant’s delusional belief in the texts, Mr Jacobs gave the following evidence:
[The defendant’s]explanation was that there were other texts, and that also some of these texts are not exactly as – they’re been altered by the victim. Again, I consider that delusional. From what I drew from this is [the defendant’s] acting in anger. Mr Moore’s acting in a way that fitted someone with a persecutory delusion.
The exact content may not be specific to the injection that be believed had occurred, however, in his mind that happened. That totally happened. So he would not need to be sort of guessing that with the victim. In his mind that was a fixed, false delusional belief that occurred.
Mr Jacobs added that the defendant’s delusional belief was well documented throughout the defendant’s history and did only emerge during the “index offence” interview. He also stated that because the defendant had an enduring symptomology “at times it [was] difficult to follow a logical, sequential explanation of why he did what he did”. Mr Jacobs said all things considered , he felt, on the balance of probability, “[the defendant’s] actions in regards to these texts, also his self-reports of confusion, loss of memory and anxiety, to me on the balance of probability, more likely would materially contribute to the alleged offence and the symptoms of such”.

In my opinion, the hypothesis that the defendant was simply under the influence of methamphetamines at the time he sent the text messages can be excluded. There is no evidence that the defendant was under the actual influence of a drug or other intoxicating substance at the material time, except for the defendant’s delusional belief that the intoxicating effects from the injections administered by the victim had caused him to send the text messages. The latter only goes to reinforce the hypothesis that the defendant was acting on a set of delusional beliefs at the time he sent the text messages.
I am reasonably satisfied on the balance of probabilities that due to his delusional belief system the defendant – at the time he sent the text messages - was unable to reason with a moderate degree of sense and composure that what he was doing was wrong by the ordinary standards of reasonable people. In accordance with that false belief system the defendant acted upon a set of “insane motives” for sending the text messages to the defendant. The defendant felt there was an “inexorable obligation” or “inescapable necessity” to send the messages in order “to help the situation. The “insane motives” that led the defendant to engage in the conduct clearly reflect an incapacity to know that the conduct was wrong according to the ordinary standards of reasonable people. The motives made no sense. Clearly the defendant would have also been suffering from an underlying thought disorder and impaired judgement at the time. The defendant’s reporting that “his capacity to know right from wrong was in fear at the material times” is particularly telling. This nonsensical self-report clearly shows that at the material times the defendant was unable to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong. Furthermore, the fact that the defendant now considers what he did was wrong is further indicative of his impaired judgment at the material time. Finally, but not least, the defendant reported that he had forgotten about the existence of the domestic violence orders. I consider this likely to have been the case due to the defendant’s severe mental impairment at the time. This is yet another circumstance that leads me to be satisfied that the defendant did not know that his conduct was wrong.
In conclusion I turn to the alleged offending on file number 21759965. Although I accept that the defendant is likely to have been suffering from a mental illness at the material time, I am not satisfied on the balance of probabilities that he did not know that the conduct constituting the offences was wrong.
DECISION
I dismiss the charges laid on file numbers 21744064 and 21758768, but decline to dismiss the charges on file number 21759965.
Dated 30 July 2018
………………………………..
Dr John Lowndes
Chief Judge of the Local Court of the Northern Territory

[1] See Mununggurr v Gordon & Anor, Mununggurr v Balchin & Anor [2011] NTSC 82 at [19] and [20] where Kelly J said in relation to s 77(4)(a):
“ …the Court must undertake its own assessment of those matters, which it can only do by considering relevant evidence…the subsection plainly requires the Court to be satisfied of the relevant matters; it does not require, or authorise, the Court to accept the certificate of the Chief Health Officer as determinative of those questions.”

[2] O’Neill v Lockeyer [2012] NTSC 10, p9.

[3] O’Neill v Lockeyer [2012] NTSC 10, p9.

[4] O’Neill v Lockeyer [2012] NTSC 10, pp 10-11.

[5] [2012] NTSC 10, p 8.

[6] O’Neill v Lockeyer [2012] NTSC 10, pp 13-14.

[7] S Odgers “Uniform Evidence Act” 11^th edition at [1.3.400).

[8] Alleged offences associated with file 21759965 occurred on 29 December 2017, 9 days after the defendant was discharged from the inpatient facility.

[9] Dr Kini was not the defendant’s treating psychiatrist.

[10] One of those matters concerns whether a person was suffering from a mental illness or mental disturbance at the material time.

[11] Odgers n 7 at [1.3.4260]

[12] Odgers n 7 at [1.3.4300].

[13] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.

[14] O’Neill v Lockeyer [2012] NTSC 10, p 8.

[15] HG v The Queen (1999) 197 CLR 414 at [39] – [44].

[16] P Shea “Psychiatry in Court” second edition p 95.

[17] (1970) 120 CLR 171 at 174.

[18] This is particularly the case where there is expert evidence of a causal link between the mental illness and the conduct constituting the alleged offending.

[19] D Howard and B Westmore “ Crime and Mental Health Law in NSW” 2^nd edition at [6.43].

[20] Howard and Westmore n 19 at [6.43].

[21] Howard and Westmore n 22 at [6.43].

[22] A Fairall “ The Exculpatory Force of Delusions – A Note on the Insanity Defence” 1994 Bond Law Review Vol 6 Issue 57 at 58 and 59.

[23] This statement was approved in R v Stapleton.

[24] Police v B (Local Court decision 7 November 2016, p 8).

[25] There is no evidence that the defendant was suffering from the effects of a voluntary injected drug.