R v Adam

[2010] NSWSC 1162

CITATION:	R v Adam [2010] NSWSC 1162
HEARING DATE(S):	11 and 12 October 2010
JUDGMENT DATE :	15 October 2010
JUDGMENT OF:	Garling J
DECISION:	Not guilty by reason of mental illness.
CATCHWORDS:	CRIMINAL LAW - Indictment charging one act of murder - Trial by judge alone. - CRIMINAL LAW - Defence of mental illness - Facts agreed by Crown and the accused - Psychiatric diagnosis of chronic Schizophrenia - Whether accused mentally ill under M'Naghten Rules - Whether accused knew that what he was doing was wrong.
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Mizzi v The Queen (1960) 105 CLR 659 Fleming v The Queen (1998) 197 CLR 25 R v Coles [2008] NSWSC 682 R v Huy Pham [2007] NSWSC 1313 R v M’Naghten (1843) 8 ER 718 R v Matusevich & Thompson (1976) VR 470 R v Winningham (unreported, NSWCCA, 10 May 1995) Regina v Matheis (1958) 58 SR(NSW) Stapelton v The Queen (1952) 86 CLR 358 The King v Porter (1933) 55 CLR 182
PARTIES:	Regina Suliman Nmir Adam
FILE NUMBER(S):	SC 2009/193568
COUNSEL:	T. Thorpe (Crown) M. Austin (Accused)
SOLICITORS:	Department of Public Prosecution (Crown) Legal Aid of NSW (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

GARLING J

FRIDAY, 15 OCTOBER 2010

2009/193568 R v Suliman Adam

JUDGMENT

1 HIS HONOUR: Suliman Adam is accused of the murder of his wife Fatima Kany on or about 31 August 2009 at Mount Druitt.

2 Mr Adam pleaded not guilty to the murder of his wife. His counsel submitted that I should return a special verdict in accordance with s 38 of the Mental Health (Forensic Provisions) Act 1990 upon the basis that Mr Adam was “… mentally ill, so as not to be responsible, according to law, for his … action, at the time when the act was done …”.

3 He has elected to be tried without a jury: s 132 Criminal Procedure Act 1986.

Trial by judge alone

4 Where an accused is tried without a jury, s 133 of the Criminal Procedure Act 1986 imposes certain obligations upon the judge in reaching a verdict. That section provides:

“(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

5 Section 133(2) requires me to expose in this judgment my reasoning process linking the principles of law with the facts found and justifying the latter and, ultimately, the verdict reached: Fleming v The Queen (1998) 197 CLR 250. This requirement however does not extend to publishing a judgment in the form a summing up would have taken had the trial been before a jury: R v Winningham (unreported, NSWCCA, 10 May 1995).

6 Section 133(3) requires me to set out any requirement on me to give a warning to the jury, had this trial been before a jury, as well as the reasons why, notwithstanding the warning or in consequence of it, I have reached a particular verdict: Fleming v The Queen (1998) 197 CLR 250.

Agreed facts

7 The Crown and the accused agreed on all of the relevant facts surrounding the death of Ms Kany. The full statement of agreed facts became Ex A. What follows is drawn from that statement.

8 Mr Adam was the husband of Ms Kany, the deceased. They resided together at Mount Druitt with their children who were 18 months’ old and 6 weeks’ old at the time of Ms Kany’s death. They had come to Australia together in 2006. They were both from Sudan.

9 There was a history of domestic disputes between the couple and the police had been called to deal with those disputes.

10 At about 10pm on 27 August 2009, Mr Adam and his wife were seen to be standing outside their home from which smoke was billowing.

11 Ms Kany was talking on a mobile telephone. Her neighbour, who was observing what had happened, took the phone, spoke to the telephone operator and gave the address so that the emergency services could attend.

12 Police were called to the scene. Ms Kany had extensive burns to most of her body. She was treated at the scene and taken to hospital by ambulance.

13 Before she was taken to hospital, Ms Kany was spoken to by police and told them that “He tried to kill me … he put oil on me, he put oil of the car, he smoke it”. At the time she was saying this to Constable Buttsworth, Ms Kany used her right hand to make a flicking motion with her right thumb and first finger.

14 Police spoke to Mr Adam at the scene. Mr Adam had only a limited facility with the English language. However, he admitted to the Police that he had set Ms Kany on fire. He was asked how the fire started and he told police that he had done it.

15 The fire damage to the house was largely confined to the bathroom area which was severely damaged. A cigarette lighter was found on the hallway floor outside the bathroom. There was a strong smell of petrol in the bathroom, and on the floor of the bathroom was what appeared to Fire Brigade officers examining the scene to be the melted remnants of a plastic container.

16 Mr Adam was arrested and taken to Mount Druitt Police Station. He underwent a lengthy electronically recorded interview with police officers and an interpreter. Immediately prior to undergoing the interview, he was asked by the police officers what had happened and he replied “I set my wife on fire”. He was then asked why he did that and simply repeated his earlier answer.

17 Although this was a verbal answer, and it was not electronically recorded, nor was a written record of it signed or acknowledged in writing by the accused, I am in no doubt as to its reliability. There are a number of reasons for this. First, it accords with the facts of what happened. Secondly, it is consistent with all of the accounts which the accused has given at various times in the course of the investigation. Thirdly, he, on the advice of counsel, has agreed that it is correct for the purpose of this trial. Fourthly, his counsel has expressly conceded that the accused set fire to his wife.

18 I note that s 165(1) of the Evidence Act 1995 provides that this evidence may be unreliable. The section provides that the judge, if requested by a party, is to warn a jury of that potential unreliability. Although there is no jury present, and I have not been requested by any party to take care about the unreliability of the answer, I bear in mind the terms of the section. Nevertheless, for the reasons set out immediately above, I am satisfied that the Crown has proved that the admission was made, and that the evidence is reliable.

19 Ms Kany was initially admitted to Nepean Hospital and was later transferred to the Royal North Shore Hospital. She was admitted there in a critical condition with mostly full thickness burn wounds covering approximately 90% of her body. The burns covered almost her entire body, except for small areas on the lower back, inguinal area, scalp, soles of the feet and hands. She received extensive treatment and was placed on a life support system. She remained relatively stable on supportive treatment but her prognosis was regarded as poor. A multidisciplinary team responsible for her condition reviewed her condition and concluded that her injuries were not survivable. Life support treatment was withdrawn on 31 August 2009 and shortly afterwards she died.

20 Dr I.G. Brouwer, the forensic pathologist who undertook the post mortem examination of Ms Kany expressed the view that that the direct cause of the death of Ms Kany was the burn wounds which she received on 27 August 2009.

21 Counsel conceded on behalf of the accused that, but for the argument which he advanced that a special verdict ought be returned on the basis of mental illness, the agreed facts and the evidence tendered, all combined, to prove beyond a reasonable doubt that each element of the offence of murder had been established by the Crown.

Factual Conclusions

22 I am satisfied that on 27 August 2009, Mr Adam, the accused, poured petrol over Ms Kany, his wife, in the bathroom of their Mount Druitt home. I am satisfied that he then intentionally activated a lighter and set fire to Ms Kany. I am satisfied that he then left the house with Ms Kany and waited on the footpath outside until help arrived. He had participated to some degree in the summoning of the emergency services.

23 I am satisfied that as a consequence of her burning injuries, Ms Kany died at Royal North Shore Hospital on 31 August 2009. The burning injuries which she received were the direct cause of her death.

24 But for the defence of mental illness to which I will now turn, I am satisfied, beyond a reasonable doubt, that all elements of the offence of murder which is the charge being faced by the accused, have been proved by the Crown.

The history of the accused’s mental state

25 The mental history of the accused was proved through the histories provided to the psychiatrists, Doctors Nielssen and Lewin, who examined the accused for the purposes of this trial, and also through the hospital notes which were tendered and which recorded previous incidents of mental illness of the accused.

26 I am satisfied that I should approach the histories provided to the psychiatrists, although admitted for the purpose of demonstrating the basis of their psychiatric opinions, as evidence of the truth of what the psychiatrists were told: s 60, Evidence Act 1995. Both counsel agreed that this approach was the correct one.

27 Mr Adam was born in a village in the western part of Darfur in the Sudan. His family earned its living through animal husbandry. They were cattle and sheepherders. He was the sixth of ten children, most of whom remain in the Sudan.

28 In the course of the extensive civil war in the Sudan, in 1999 or 2000, Mr Adam witnessed the murder of seven relatives. They were hacked to death, various body parts were removed with machetes, and he witnessed their burial in a mass grave just outside the village in which he lived.

29 As a consequence, he experienced recurrent images of the particular incident. He also witnessed other traumatic experiences before he was able to flee from the Sudan to Egypt in the north. He first travelled from Darfur to Khartoum, and then to Egypt in 2000. He lived there for six years before coming to Australia as a refugee.

30 In the Sudan, Mr Adam had four years of formal schooling. He has a limited ability to read Arabic, and is not able to read English. He is fluent in Sudanese Arabic but has only limited English.

31 Mr Adam sustained an onset of mental illness in 2000. In 2002, he was hospitalised in Egypt for a six month period and then attended weekly outpatient psychiatric clinics at that hospital.

32 When he was hospitalised in 2002, Mr Adam was symptomatic. He claimed that he had been subjected to witchcraft. He reported ongoing difficulties with sleeping. He reported hearing voices of various people (both alive and dead) which made reference to the killings in Darfur that he had witnessed. He experienced multiple male and female voices which at times spoke to him at normal volume, and at other times appeared to shout. He sustained a range of persecutory delusions, and disruption to his pattern of functioning. He was not at that point in time able to look after himself.

33 He was informed by his doctor in Egypt that he suffered from Schizophrenia. Whilst he was in hospital he was given injections on a fortnightly basis and also took oral medication. He experienced fluctuating symptomatology.

34 In 2005, Mr Adam met his wife Ms Kany, who was the daughter of a cousin. She came from a similar Sudanese background to him. Together they migrated to Australia in 2006. At the time of his arrival in Australia, Mr Adam was troubled by auditory hallucinations, delusions of reference with to the television set, and persecutory ideas. Those ideas were delusional. He was troubled by ideas about witchcraft and voices which told him to kill various members of his family, including a cousin, his brother and his wife.

35 Within days of arrival in Australia he attended at the Auburn District Hospital for psychiatric assessment. It is unclear precisely what happened in 2006 at the Auburn District Hospital.

36 However, during 2006 at some stage after being assessed at the Auburn District Hospital, Mr Adam attempted to commit suicide by taking an overdose of paracetamol tablets. He did that because the television told him to do so.

37 As a consequence of this overdose, Mr Adams was taken to Bungaribee House, which is the psychiatric unit attached to Blacktown Hospital. He was admitted there for a period of time.

38 On 14 September 2007 Mr Adam again attended at Bungaribee House. He was taken there by the police. The police became involved because his wife had taken him to the Blacktown Police Station seeking help and assistance. Upon his arrival at Bungaribee House, his private treating psychiatrist, Dr Karlim Attia-Soliman, was contacted. He confirmed that Mr Adam had a diagnosis of both depression and Schizophrenia and that, although he had been seen on 29 August 2007, he had reported at that time that Mr Adam had ceased to take any oral medication.

39 At Bungaribee House he was assessed. Reportedly he had had visual hallucinations and delusional thoughts. He did not trust anyone and it was thought appropriate to admit him as an inpatient. He remained as an inpatient at Bungaribee House until 11 October 2007 and was discharged, with a program of follow up consultations.

40 After that time, he had three further admissions to Bungaribee House, the last of which was from 17 October 2008 to 6 November 2008.

41 On 17 October 2008, he was taken to the Psychiatric Emergency Care Centre at Blacktown Hospital, having been brought in by his brother, in circumstances where had superficial lacerations to his arms and a deterioration in his mental state.

42 Upon examination it was observed that Mr Adam had a history of Schizophrenia, that he was non-compliant with medication, he presented with paranoid delusions, ideas of reference, auditory hallucinations, persecutory delusions, lacking insight. At the PECC, he refused initially to take his medication.

43 His wife had taken out an AVO against him before his admission. Whilst in the PECC, he was commenced on medication. He was transferred from the PECC to Bungaribee House on 20 October 2008 where he remained until 6 November 2008. On discharge he was in receipt of a Community Treatment Order which provided for his compulsory medication and attendance at specialist consultation.

44 He was seen by Dr K. Channi, a psychiatric registrar, on 20 November 2008. At that time it was noted that Mr Adam was in receipt of fortnightly intramuscular injections of Risperdal and daily oral medications, for both Schizophrenia and depression. He reported that he was compliant with his medication. Dr Channi formed the impression that Mr Adam then had a stable mental state.

45 Follow up consultations on 17 December 2008 and 14 January 2009 were uneventful.

46 In February 2009, Mr Adam ceased to take his medication which led to him consulting with doctors at the Bankstown Hospital on a couple of occasions. Medication was prescribed.

47 On 19 February 2009, there was a lengthy consultation. At that consultation, Mr Adam denied that he had ever been treated for Schizophrenia. He complained of disloyalty from and bizarre behaviour by his brother. He claimed that he had been subjected to physical violence by members of the police force and he gave a history of feeling unwell and feeling that there “….is something in my veins…” which he was unable to describe any further. He was provided with further medication and a good deal of social support.

48 He returned for consultation on 5 March 2009 and was seen by Dr Joshua, a consultant psychiatrist. He reported that his nightmares had decreased since he had been on his medication. He continued to complain of tactile hallucinations, namely that something was crawling under his skin. He gave an inconsistent history about his compliance with his medication regime. A follow up short appointment was booked for 18 March 2009.

49 On that day, he reported that he was hearing the voice of the devil encouraging him to go and obtain further medication. He reported delusional features in that he was wondering why other people were talking about him and generally seemed to be discontented.

50 On 30 March 2009, he attended and saw Dr Joshua. He reported that he was leaving Australia on the following day to return to Egypt for about two months. He was advised to continue to take his medication and was provided with a script to take with him.

51 He was next seen by Dr Pistilli, a psychiatric registrar, on 8 July 2009. He noted that upon his return from the Sudan, he had been jailed for a few days because of allegations which had been made against him by his sister-in-law of assault which allegedly occurred prior to his overseas departure.

52 He reported to Dr Pistilli that whilst in jail he had auditory hallucinations but that those symptoms had largely resolved. Dr Pistilli noted that the Community Treatment Order had expired in May 2009 and that compliance with his medication appeared to be difficult. He could detect no obvious signs of current relapse. He recorded that he observed a stable mental state with no acute risk issues.

53 On 26 August 2009, Mr Adam returned for further psychiatric consultation. It occurred at the Mount Druitt Community Health Centre and the consultation was conducted by Dr Gordon Sloss, a staff specialist in psychiatry. It was clear to the doctor that Mr Adam had ceased to take his medication, and that the duration of his non-compliance was unknown. He informed Dr Sloss that he was still intermittently hearing voices, usually of the devil, but that he had not heard anything for the past five days since the start of Ramadan. The doctor thought that although he was somewhat angry and irritable when talking about his past experiences, and hospital symptoms, he did not appear to be depressed or display any obvious signs of mania. The doctor concluded that his mental state did not appear to be markedly different from previous reviews, and whilst he continued to have concerns about his risk factors in the long term there was nothing special which he detected which could lead him to the view that there was an imminent risk of an adverse outcome.

54 The notes of Dr Sloss record that he received tangential responses from Mr Adam to his questions, that Mr Adam lacked insight into his mental illness as that was defined in the Australian culture, that Mr Adam had ongoing evidence of psychosis with suspicious irritability and that Mr Adam needed to continue to be monitored.

Expert opinions about the accused’s mental condition

55 Dr Nielssen, when giving evidence, expressed the opinion that he thought, having regard to Dr Sloss’s clinical notes and observations, that by 26 August 2009, Mr Adam was becoming unwell and it was not surprising that he would have had an acute psychotic episode soon afterwards. He said: (T 22.48)

“Q: Now that we know what has happened, we can look back at that note and see the harbingers of what in fact occurred?
A. Yes it is another contemporaneous confirmation of his mental state.”

56 On 27 August 2009, having been taken into custody, Mr Adam was formally interviewed by Police with an interpreter present. A copy of the transcript of that interview was made available to both Dr Nielssen and Dr Lewin.

57 Dr Nielssen said in respect of some of the answers that Mr Adam’s answers contained evidence of typical symptoms of Schizophrenia and were clear evidence of delusions and delusional thought. He also noted that one of the answers in which Mr Adam referred to people spying on his phone or talking to him on his phone demonstrated hallucinations of thought, which was a typical symptom of a psychosis arising from the condition of Schizophrenia. He thought that the answers to which he referred were important in understanding Mr Adam’s mental state.

58 Dr Lewin, an experienced forensic psychiatrist, was provided with much of the material which has been placed before the court. He had the benefit of a lengthy consultation with Mr Adam. In his report of 21 June 2010, he concluded that Mr Adam suffered a chronic Schizophrenic illness from at least 2002 and probably since 2000.

59 Dr Nielssen, who is also an experienced forensic psychiatrist, had the benefit of a consultation with Mr Adam. He concluded in his report of 9 February 2010 that Mr Adam suffered from, and was continuing to suffer from, chronic Schizophrenia.

60 I am satisfied from the history, some of which I have recounted, but which is contained in the evidence, that at all relevant times including on 27 August 2009, Mr Adam had a chronic mental illness which was Schizophrenia. I am satisfied that one of the acute symptoms of that chronic illness is the onset of delusional or persecutory psychoses and that Mr Adam was only intermittently compliant with his medication.

61 The issue to which I now turn my attention is whether that mental illness which I am satisfied beyond a reasonable doubt existed, was sufficient to satisfy the legal tests to enable a special verdict to be found.

62 Before I do so, I note that, had the proceedings been heard in a trial with a jury, there would have been an obligation on me to inform the jury of the legal and practical consequences of a special verdict. I bear all those matters in mind in considering my verdict in this case. In particular I note, and have regard to, the following matters:

(a) If my verdict is “not guilty by reason of mental illness”, I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community.

(b) If it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by due process of law. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes a forensic patient and falls under the supervision of the Mental Health Review Tribunal.

(c) The composition and functions of the Mental Health Review Tribunal, including its obligation to review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody, its obligation to review the patient at least once every six months, and its obligation not to release a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release.

Was the accused mentally ill at the time he killed Ms Fany

63 The real issue in this trial is whether the accused has available to him the defence of mental illness. The defence is a matter for the accused to establish, not beyond reasonable doubt, but on the balance of probabilities: Mizzi v The Queen (1960) 105 CLR 659.

64 Section 38(1) of the Mental Health (Forensic Provisions) Act 1990 provides:

“38 Special verdict

(1) If, in an indictment …, an act … is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his … action at the time when the act was done …, then, if it appears to the jury before which the person is tried that the person did the act …, but was mentally ill at the time when the person did … the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.”

65 That section, and the Act, does not provide any definition of the term “mentally ill”. That term is determined in accordance with the M’Naghten Rules: R v M’Naghten (1843) 8 ER 718 at 722:

“Every man is presumed to be sane; and to possess a sufficient degree of reason to be responsible for his crimes, unless the contrary is proven …; that to establish a defence on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the quality and nature of the act he was doing; or if he did know it, that he did not know what he was doing was wrong.”

66 It is necessary for Mr Adam to persuade me, on the balance of probabilities, that at the time he killed his wife, Ms Kany, as a result of a defect of reason from his Schizophrenia, he did not appreciate the nature and quality of the physical acts which he undertook to set alight to his wife or else that he did not know that those acts were wrong.

67 There is no suggestion in this case that the accused did not know the nature and quality of the act which he was doing when he set fire to his wife having tipped petrol over her. He was aware of what he was doing. Dr Nielssen expressed the opinion that the accused knew the nature and quality of his act. He said this in his evidence (T 19.9):

“Q. In relation to that opinion and the test for mental illness set out in the case of M’Naghten is it the case that you are of opinion that at the time he didn't know the nature and quality of his act?
A. My understanding of the interpretation of that, those words was that he did know the nature and quality of his act, he did know that he was pouring petrol on a person who may have died by him setting fire to it. What he didn't know was that he was doing that to an innocent woman, because of his deluded ideas he believed that she was plotting against him.

Q. He didn't understand the consequence of his action based on those delusional idea, is your opinion in relation to that aspect?
A. Yes that he would understood that she might well have died as a result of his action, yes.”

68 This opinion was not challenged. I am satisfied that Mr Adam did know the nature and quality of his actions. He has failed to satisfy me that the first part of the M’Naghten test applies to his case.

69 Consequently, the issue which requires careful consideration is whether the second part of the M’Naghten test has been satisfied, namely, did the accused know that what he was doing was wrong.

70 In The King v Porter (1933) 55 CLR 182 at 189-190, the test was formulated by Dixon J in the course of his summing up to a jury in these terms:

“The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression ‘disease, disorder or disturbance of the mind.’ That does not mean … that there must be some physical deterioration of the cells of the brain … you are dealing with a very different thing – with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.

Then I have used the expression ‘know’, ‘knew that what he was doing was wrong’. We are dealing with one particular thing, the act of killing, the act of killing at a particular time, a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by wrong? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.”

71 The terms of his explanation of the second part of the M’Naghten test has been judicially approved: Stapelton v The Queen (1952) 86 CLR 358; Regina v Matheis (1958) 58 SR(NSW) 321 at 322 per Owen J, Street CJ and Herron J agreeing; R v Matusevich & Thompson (1976) VR 470 at 477 per Young CJ, Starke and NelsonJJ.

72 It is appropriate that I regard what Dixon J said as a practical synthesis of the concepts involved, and have regard to it, in undertaking the task which follows.

73 It is clear that the relevant time at which the accused’s state of mind was to be assessed is at the time when he killed his wife. His actions before and after that can be considered in helping to make a determination of his state of mind at the relevant time.

74 The issue to which I must turn my attention in considering the evidence is whether at the time he killed his wife, Mr Adam did not know that what he was doing was wrong.

75 Dr Nielssen expressed the view in evidence that the accused did not know that what he was doing was wrong. He said (T 19.18):

“Q. He didn't understand the consequence of his action based on those delusional idea, is your opinion in relation to that aspect?
A. Yes that he would understand that she might well have died as a result of his action, yes

Q. But he didn't understand that it was wrong to do what he was doing?
A. Not morally wrong within his view of the world at that time.

Q. Because he was acting on a delusional belief that he was responding to a threat or a wider delusional danger, is that a fair way of putting it?
A. Yes.

Q. Because it is difficult to go back and work out exactly what the thinking was, given that it was thought disordered and delusional?
A. Yes.

Q. It might have been that he believed he was taking some action against the devil based on some things that he said to you, is that right?
A. Yes, it is not completely clear what he thought might happen but it was clear that he believed his wife was somehow collaborating in a conspiracy against him.

Q. And one of the factors that supports him being mentally ill and acting on a deluded thought pattern at the time is that there is evidence that he had been having auditory hallucinations, is that right?
A. Yes.

Q. And auditory hallucinations are a symptom of an acute phase of schizophrenia, is that right?
A. Yes.”

76 Dr Lewin, relying upon the psychiatric history with which he had been provided and his consultation expressed the view that Mr Adam was delusional at the relevant time and was not able to appreciate that his act was wrong. He said that he concluded that Mr Adam was acutely psychotic at the time of the alleged offence, and that the nature of his psychotic beliefs influenced his decision-making and impaired his judgment as to the likely consequences.

77 Both counsel for the Crown and for the accused submitted I should accept these opinions of Dr Nielssen and Dr Lewin and that I should be satisfied in all of the circumstances that the accused Mr Adam did not know that what he was doing was wrong.

78 As the tribunal of fact I am not bound by the opinion of any expert witness or any number of expert witnesses. However, this is a circumstance in which the expert witness engaged by the Crown, and whose evidence was not challenged by the accused, and the expert witness called by the defence, agree with each other. In those circumstances I should not reject the unanimous opinions of the expert witnesses unless there is evidence before me which would cast doubt on those opinions: R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Michael Grove J.

79 In all of the circumstances, I consider that I should accept the expert psychiatric evidence and I am satisfied on the balance of probabilities that at the time he killed his wife, Mr Adam, the accused, did not know that what he was doing was wrong. Accordingly, he was mentally ill and a defence under s 38 of the Mental Health (Forensic Provisions) Act 1990 has been established.

80 The consequence of finding in the accused’s favour on the defence of mental illness is that I return a verdict of not guilty on the ground of mental illness. One possible consequence of that is that the accused could be discharged, either conditionally or unconditionally, into the community. Mr Austin who appeared on behalf of the accused has submitted that in all of the circumstances of this case, this would not be appropriate. I agree.

81 What will happen in this case is that the accused will be detained in custody until he is released by due process of law. In other words, he will remain in custody and be held as a forensic patient and come under the supervision of the Mental Health Review Tribunal.

82 In coming to my decision as to the appropriate verdict, I have taken into account the composition and functions of that Tribunal and the fact that the accused will not be released until it is satisfied that the safety of the accused or any member of the public will not be seriously endangered by his release. His case will be reviewed by the Tribunal as soon as practicable and, if further detained, his case will be reviewed at six monthly intervals. If at some stage the accused is released, it may be on conditions that if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained.

83 My conclusions are:

(a) I am satisfied beyond reasonable doubt that the acts of the accused Suliman Adam on 27 August 2009 caused the death of Fatima Kany on 31 August 2009.

(b) I am satisfied on the balance of probabilities that at the time of those acts the accused was labouring under such a defect of reason from a disease of the mind as not to know that what he did was wrong.

Verdict

84 I find the accused not guilty by reason of mental illness.

Orders

85 I make the following orders pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990:

(1) I order that Suliman Adam be detained at the Psychiatric Ward, Long Bay Prison Complex Hospital, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.

(2) I direct the Registrar of the Court to notify the Minister for Health of this judgment and order.

(3) I direct the Registrar of the Court notify the Mental Health Review Tribunal of this judgment and order and to provide to that Tribunal the following documentation:

(a) A copy of these reasons for verdict and orders;
(b) A transcript of these proceedings;
(c) A copy of each of the documents tendered by the Crown at the trial being Ex A and Ex B.

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