R v Cottam

[2019] NSWDC 738

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Cottam [2019] NSWDC 738
Hearing dates:	11, 12 November 2019
Date of orders:	25 November 2019
Decision date:	25 November 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Count 1 - not guilty by reason of mental illness. Count 2 - not guilty by reason of mental illness.
Catchwords:	Criminal – trial by judge alone - wound with intent to murder – in the alternative - wound with intent to cause grievous bodily harm – defence of mental illness
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007
Cases Cited:	Mizzi v The Queen [1960] HCA 77 R v M’Naghten (1843) 8 ER 718 R v Porter (1936) 55 CLR 182 R v Tumanako 64 A Crim R 149 Thomas v The Queen (1960) 102 CLR 584
Category:	Principal judgment
Parties:	Regina (Crown) Robert David Cottam (Accused)
Representation:	Counsel: Ms Tennant (Crown) Mr De Brennan (Accused)   Solicitors:
File Number(s):	2018/313719
Publication restriction:	Nil

Judgment

1. On 11 November 2019 Robert Cottam (the “accused”) appeared before the Gosford District Court for trial.

2. A judge alone election had been filed on 11 October 2019. The Crown consented to the election. Accordingly, the trial proceeded as a judge alone trial on 11 November 2019 the Court having been satisfied that the accused, before making such an election, sought and received advice from a legal practitioner.

3. The accused was arraigned on the following counts:

Count 1 - On 14 October 2018, in Colongra in the State of New South Wales, did wound Peter James Richards with intent to murder the said Peter James Richards (s27, Crimes Act).

And further in the alternative to count 1, that

Count 2 - On 14 October 2018, in Colongra in the State of New South Wales, did wound Peter James Richards with intent to cause grievous bodily harm (s33(1)(a), Crimes Act).

4. The accused pleaded not guilty to each count.

5. Ms Tennant, Crown Prosecutor appeared on behalf of the Director of Public Prosecutions. Mr De Brennan of Counsel appeared on behalf of the accused.

6. It is alleged that the accused wounded Peter Richards (“the complainant”) with a knife causing a neck wound (5 cm deep), 2 chest wounds (superficial), stomach wound (superficial) and a laceration to his finger. At the time of the alleged offending the accused and the complainant both worked as security guards.

7. At the commencement of the trial, I was advised that the only issue at the trial is whether the accused is not guilty by reason of mental illness.

8. Both the Crown and Mr De Brennan on behalf of the accused, agree that is the appropriate verdict had regard to the available evidence.

9. It remains a matter for me to consider all the evidence and return my verdicts according to the evidence.

The Crown evidence at trial

10. There were no witnesses called in the trial. The Crown tendered the following documents.

Exhibit A – Agreed Facts

Exhibit B – Crown Bundle including:

1. Indictment

2. Agreed facts

3. Transcript of the Triple-0 call by Peter Richards dated 14 October 2018

4. Transcript of Recorded interview of Peter Richards at John Hunter Hospital dated 14 October 2018

5. Expert Certificate of Dr Daman Bhatia dated 19 January 2019

6. Expert Certificate of Dr Nicholas Blefari

7. Transcript of Recorded Interview of accused dated 14 October 2019

8. 7 Photographs of injuries

9. Psychiatric Report of Dr Anthony Samuels dated 30 May 2019

10. Psychiatric Report of Dr Stephen Allnutt dated 6 February 2019

11. Psychiatric Report of Dr Stephen Allnutt dated 10 April 2019

12. Psychiatric Report of Dr Richard Furst dated 12 October 2019

13. Psychiatric Report of Dr Richard Furst dated 25 October 2019

14. Psychiatric Report of Dr Stephen Allnutt dated 31 July 2019

15. Psychiatric Report of Dr Stephen Allnutt dated 6 August 2019

16. Justice Health Records

17. Notes from the accused’s family and accused’s diary entries

18. DVD of Triple-0 call by Peter Richards

19. DVD of recorded interview of Peter Richards taken at John Hunter Hospital

20. DVD of recorded interview of accused.

11. During the trial, Exhibit B (18) (19) and (20) were played.

Agreed Facts

12. The accused is Robert David Cottam, born in 1986 (33 years old).

13. The complainant is Peter James Richards.

14. As at 14 October 2018 both the accused and the complainant were employed as security guards by a security firm known as “SecurityWorx”.

15. The accused and the complainant are not well known to each other, having only met each other on one or two previous occasions through their work at SecurityWorx.

16. On 14 October the accused was required by SecurityWorx to perform security guard duties between 8:00am and 3:00pm at the Munmorah Power Station at Colongra, which was undergoing demolition at the time.

17. The complainant was required to relieve the accused at 3:00pm.

18. At about 2:40pm the complainant arrived at the front gates of the Site to relieve the accused and commence his shift. The complainant waited in his vehicle about 5 minutes and then alighted from his vehicle and walked up to the gate. At the same time, the accused also walked up to the gate from the other side.

19. The complainant asked the accused something to the effect: “How was your shift?” and the accused responded.

20. The accused then opened the gate.

21. Once the gate was fully open the accused produced a short-bladed folding knife and stabbed the complainant in the throat.

22. The complainant staggered backwards and the accused tried to stab the complainant again.

23. The complainant said to the accused something to the effect of: “Why did you do this?” The accused responded something to the effect of: “We are all bunched up”.

24. The complainant then staggered back towards his vehicle in an attempt to escape. The accused blocked the complainant’s path and continued to thrust the knife towards the complainant in a stabbing motion and in the process stabbing the complainant several times.

25. The complainant then started walking back towards the main gate.

26. The accused kept on repeating works to the effect of: “I need to do this because it’s the only way I am going to get a girlfriend”.

27. About half way between the complainant’s car and the main gate the complainant and became light headed and sat on the ground.

28. As the complainant sat on the ground the accused asked the complainant what his zodiac sign was, and the complainant told him that it was the Ox.

29. The accused told the complainant, “This is because of the Monkey”.

30. The accused then said to the complainant something to the effect of, “I’m going to finish you” to which the complainant replied to the following effect, “Please just let me die quietly”.

31. While the complainant was walking from the vicinity of his car towards the main gate the complainant kept on saying to the accused something to the effect of, “Why?”

32. The accused then watched the complainant for about 20 minutes.

33. During this time the complainant initially tried to play dead. The accused said to the complainant, “I know you’re still alive”. The complainant responded, “Just let me die”.

34. The accused also said to the complainant that he should go to heaven and kept repeating, “There is no God”.

35. The accused also said to the complainant that he didn’t have any money, he only had $500.00 in his account.

36. Also during this time the accused told the complainant that he reminded the accused of someone from his past who had wronged him and was fat like him and that he needed to kill the complainant in order to get a girlfriend.

37. After 20 minutes the accused said to the complainant that he was going down to the office to wash his hands and call an ambulance. He then walked off in the direction of the Site office.

38. The complainant then got up off the ground and moved as quickly as he could to the security gate and attempted to open it. The gate however did not open and the complainant moved behind some trees which were located near the gate and called 000.

39. While the complainant was on the phone with the 000 operator the accused drove out of the Site in his vehicle. About 5 minutes later Police and Ambulance arrived and rendered assistance to the complainant.

40. As a result of the attack the complainant sustained the following injuries:

• Neck wound mid line neck 5cm deep, with small venous bleeding vessel near thyroid gland. There was no evidence of the complainant’s trachea being involved.

• Left upper chest wall – 2.5cm deep, superficial wound.

• Right chest wall – 6cm deep, superficial wound in fat and subcutaneous tissue only.

• Epigastric region – 3cm deep, superficial wound.

• A laceration across the right middle finger on the surface involving the flexor tendon.

41. On 14 October 2018 the complainant underwent surgery and his chest and epigastric wounds were washed and sutured. A drain was also inserted into his neck.

42. On 16 October 2018 the drain was removed. The sutures were removed a week later.

43. The accused was apprehended by police at approximately 4:10pm on 14 October 2018 at a Caltex Service Station adjacent to the south bound lanes of the M1 Motorway. The accused was arrested and taken to Wyong Police Station where he participated in a record of interview with Police.

ERISP conducted on 14 October 2018

44. The accused told police that he was currently employed as a security guard at Colongra Power Station.

45. In relation to the events of 14 October 2018 he told police that at approximately 2.40 pm the complainant arrived at the Power Station. He opened the gate for him, “it’s a bit like self defence I guess…I believe I was provoked to defend myself”.

46. He told police he had previously had problems with the complainant, “Therefore I was ready for him when he came onsite from my perspective”. He then described what he regarded as an offensive gesture, namely that the complainant had previously pulled his keys out and “waved his arms around”. He also described that the complainant would, “pull faces which he found quite disturbing”. He told police, “… the first day I met him he pulled faces at me”. He demonstrated to police during the interview what he meant by “pulling faces”. He said the complainant was pulling faces at him the previous shift.

47. In relation to what happened after the complainant arrived at work, he told police, “I got my knife out and stabbed him in the throat”. He explained that he realised he was still standing so he, “used it a few more times”.

48. He told police he then got worried at what he had done and described it as a “random situation of us two being bunched up together in my opinion is definitely not a good idea”.

49. He described that at one stage whilst the complainant was sitting down he was contemplating, “finishing him off”. He was asked whether when he stabbed the complainant his intention was to kill him. He replied, “Yes”.

50. He said that before he stabbed the complainant he did think that what he was doing was wrong. He was asked, “Why was it wrong” and he replied, “Because you wouldn’t like that to happen to you, I guess.”

51. He agreed that he had said to the complainant, “I need to do this. It’s the only way I’m going to get a girl.” He was asked what he meant by that and he said, “I cant really say”. He also agreed he had asked the complainant about his zodiac sign and had also said, “This is because of the monkey”. He said this was “out of aggravation”.

52. Police asked him to explain what he meant by that answer and he said:

“… Well, that may have something to do with, why I possibly struck him because of it being personal. Ah, it goes quite deep and it is, I’d rather not say. In a nutshell, he reminds me of someone else and it’s like that film The Waterboy. You see that other person in that person and, ah, so perhaps if, and you can’t really, say if that hadn’t have happened you wouldn’t have seen that person or, like, if I hadn’t have met that person, then maybe I would not have done anything at all. I may have gone on with it but because I see so much of something previous has nothing to do with anything work-related, ah, and has possibly been projected onto the victim, it made me say things like, so, yeah, because I cannot believe why I am bunched up with the wrong people all the time from my view.”

53. After the completion of the ERISP the accused was charged and remanded in custody.

Evidence of the accused’s family in relation to the accused’s mental health

Mary Cottam (the accused’s mother)

54. The accused mother described that as a small child there were a number of incidents when he displayed stubbornness. She described a normal adjustment to junior school and that the accused seem to be doing well until he was 10 years of age. Around this time one of his friends passed away which the accused’s mother said he took badly.

55. At 12 years of age his mother described that the accused was medicated for severe acne. In her opinion, that time was the beginning of his change of character. By 15 years of age he was described as very reserved and always staying in his room. By 16 years of age he wanted to leave school. Ultimately, he went to TAFE before the family moved to Dubai where he studied at a local Art Institute.

56. Upon the family’s return to Australia the accused was accepted at Southern Cross University at Lismore where he studied art and art teaching.

57. After completing university the accused stayed with his parents for the next 4 years. He undertook employment as a teacher and also as an actor. He also joined local acting groups. At one stage, he decided to join the army. He was rejected because of a shoulder injury. The accused had told his mother that he asked interviewers about what would be happening while he was in the army and asked if they would be putting a small monitor in his head to track his movements.

58. The accused finally commenced employment with a security company. His mother thought he enjoyed it and seemed more settled.

59. Subsequently, she described an occasion when accused “raged” at her and accused her of trying to break into his unit (she had attended to check on the welfare of his cat). After that incident she described that the accused was always swearing at her and telling her to go away.

Tom Cottam (the accused’s father)

60. The accused father also outlined the deterioration in the accused mental health from his teenage years. He also described that his years at University were turbulent.

61. Since returning from University the accused lived with his parents but in a “virtually separate existence”. His father described that it was very noticeable that his mental health was getting worse. He described one occasion when he assisted the accused changing a tyre, and the accused suddenly shouted at the top of his voice “ I’m going to kill you one day…. I’m going to kill you”. Shortly after this incident the accused moved away. His father described that after that time he lived a reclusive lifestyle. He described that his wife contacted a health facility at Gosford on 2 occasions, the firstt time 4 years ago and again in January 2018. It was explained that they were unable to help unless the accused voluntarily attended the facilities. He described that the accused had always denied that he has any problem.

Kathryn Blaschek (the accused’s sister)

62. Kathryn Blaschek (the accused sister) is 17 years older than the accused. In her opinion, the decline in the accused mental health began around the age of 15 years when he had a serious condition of chronic acne. She described the accused became very depressed and introverted and his mental health caused a lot of disruption to his senior years of schooling.

63. She also described that whilst the accused was attending university at Lismore she observed that the accused appeared to have “no life skills in the real world” which was demonstrated by an inability to take care of himself.

64. In 2013 or 2014 she described an incident when she took a meal to the accused. Halfway through eating the meal he pulled a herb from the meal and asked whether she was trying to kill him. She described that she realised the accused was not joking and he quickly became withdrawn and sinister. She considered this a complete change in his personality.

65. Also in 2014 she described that he displayed strange behaviour at a family celebration at Terrigal.

66. Her parents sought to obtain professional assistance for the accused. They were unable to engage any assistance at that stage. Since 2015 she has resided in Germany. The last time she spoke with the accused was by phone in 2018.

Thomas Cottam (the accused’s brother)

67. Thomas Cottam (the accused brother) is 22 years older than the accused.

68. He described that the accused had been brought up in a stable family environment attending a private school. However, he was of the view that from the accused late teenage years, his academic results have been poor and, since then, he has not been able to complete simple tasks such as report writing.

69. He described that during the accused adult years it seemed that he had a severe social phobia and that his mental instability was causing difficulties.

70. He described the accused as suspicious of all people including himself. On one occasion he tried to persuade the accused go to a doctor with respect to his mental health. The accused indicated he was not mentally ill.

71. He described that over the last 10 years the accused has become totally isolated from others. Whilst he lived in a room at his parents house he never want to see or talk to them. After leaving their house he continued to be isolated from the outside world. He described the accused as being totally disorganised with his affairs.

Diary entries

72. After the arrest of the accused, the accused’s father located a diary kept by the accused in the unit where the accused lived immediately prior to his arrest.

73. The diary had entries dated from 8 November 2016 to 13 October 2018.

74. The entries include the following:

• 15/1/17 – “I’ve been having really strange thoughts lately. Is it a reaction of disbelief. Dunno? But I’m winning battles, winning the fight.”

• 15/4/17 – “I’ve been getting really disturbing imagery recently. I’ve not intended those thoughts, but my imagination just runs wild. Meditate.”

• 17/4/17 – “Strange, I’ve been getting a familiar feeling, the same as 2013 when I was with Craig Wiles. Spooky, ghostly, demonic, visionary. But, nothing too serious yesterday and today. A bit child-like.”

• 28/5/17 – “I’ve detected bad things. It’s not quite the imagination….it’s something else. And it’s as if other people can see it too. Very, very, bad.”

• 29/5/17 – “New symbol: Evil 3rd eye” (followed by drawing of eye).

• 9/7/17 – The badness have gone: like a (illegible)….demon has been present for a few months. Crazy shit. How can my imagination do that? Or did it come from somewhere else? Continue my research??

• 25/7/17 – “I want to leave Earth and go to another planet….if it is possible.

• Funny, I’m not as disturbed as I was before…(I’ve got ichy feet).

• 7/10/17 “Fat people must be eliminated.”

• 11/10/17 – “…If you see a fat person, kill them!”

• 13/11/17 – “I’ve been getting all these strange, weird thoughts and daydreams since living hear (sic). Living hear (sic) is like mouldy toast.”

• 25/11/17 – “Are things starting to go wrong?”

• 1/1/18 – “I’ve never been so isolated in all my life…I can’t go outside. I can’t speak with anyone who I can relate to. My family are irritating – Being alone, seems to be the only option.”

• 14/1/18 – “How much Adolf Hitler hated Jews is the way I hate fat people.”

• 14/9/18 – “It’s like I’m living in a whole new different world. I guess it’s the Age of Aquarius. It’s as if everyone’s brain has sped up and everything does seem more connected.”

• 3/10/18 – “It is a lovely thing to live with courage and die, leaving behind everlasting renown “Alexander the great.”

• 5/10/18 – “Whoever put a camera on me, will die…if that is true.”

• 8/10/18 – “The strangest thing since living in Gosford is that I have developed communicating with people without speaking. It can be alright, it can be very bad and something difficult to control out in public.”

• ”It’s as if people can hear my thoughts…”

• 13/10/18 “There is a black car parked in my parking spot. How unusual. Forewarning Central.”

General directions of law

75. In compliance with section 133 (2) and (3), Criminal Procedure Act, I remind myself of the following principles of law.

76. As the accused has pleaded that he is not guilty to each count and elected trial by Judge alone, it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of these charges and to return my verdicts according to the evidence in the trial.

77. I direct myself on the onus of proof. This is a criminal trial and the burden of proof of the guilt of the accused is placed upon the Crown. That onus rests upon the Crown in respect of every element of the charges.

78. The accused is presumed to be innocent, unless and until he is proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charges beyond reasonable doubt, then the accused must be found not guilty of the charges.

79. The words “beyond reasonable doubt” are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration all the evidence, I am not satisfied that the Crown has established any one of the essential matters beyond reasonable doubt, then it is my duty to bring in a verdict of not guilty because the Crown will have failed to do what the law requires it to do.

80. The accused has not given any evidence in response to the Crown case. I remind myself that although an accused person is entitled to give evidence in a criminal trial, there is no obligation upon him to do so. I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt of the elements of the offences charged. I remind myself that the accused is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.

81. I remind myself that the accused decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence in the trial.

Elements of the offences

82. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charges.

83. In relation to count 1 – wound with intent to murder, the Crown must prove beyond reasonable doubt that:

1. The accused wounded the complainant;

2. With the intent to murder the complainant.

84. “Wound” is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient.

85. “Intent” Intent and intention are very familiar words. In this legal context they carry their ordinary meaning.

86. Intention may be inferred or deduced from the circumstances in which the alleged offending occurred, and from the conduct of the accused before, at the time of, or after did the specific act. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was, in fact, at the relevant time.

87. In relation to count 2 – wound with intent to cause grievous bodily harm, the Crown must prove beyond reasonable doubt that:

1. The accused wounded the complainant;

2. With intent to cause grievous bodily harm to the complainant.

88. “Grievous bodily harm” means really serious bodily injury.

89. I remind myself that count 2 is in the alternative to count 1.

90. Having regard to the Agreed Facts, I am satisfied beyond reasonable doubt that the accused wounded the complainant with intent to murder the complainant or, in the alternative, to cause grievous bodily harm.

Defence of mental illness

91. Having found each of the elements established beyond reasonable doubt, I next have to consider whether, at the time the act was done, the accused was mentally ill, so as not to be responsible according to law.

92. Section 38, Mental Health (Forensic Provisions) Act provides as follows:

(1) If, in an indictment or information, an act or omission 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 or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.

93. The onus with respect to this issue is on the accused. It is sufficient if the accused establishes on the balance of probabilities, that is to say, that it is more likely than not that he was mentally ill at the time of the doing of the act constituting the alleged offence (Mizzi v The Queen [1960] HCA 77, (1960) 105 CLR 659 at 664-665). If so, then he is entitled to a verdict of “not guilty by reason of mental illness”.

94. There is no statutory definition of a defence of mental illness. The relevant test is as set out in R v M’Naughten [1843] 8 ER 718 (the “M’Naughten Rules”).

95. In order to discharge his onus the accused must prove to the requisite standard that:

“…at the time of committing 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”: R v M’Naghten (1843) 8 ER 718

96. A “defect of reason” is some diminution or malfunction of the normal capacity for rational thought. In R v Porter (1936) 55 CLR 182 at 185 Dixon J spoke of the “prisoner’s faculties” being “disordered”. Dixon J at 190 said:

“…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 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.”

97. The defect of reason must be caused by a “disease of the mind”. The aetiology of the disease of the mind is a matter to be determined by expert evidence. It is open to the tribunal of fact to reach a conclusion different from the express medical experts, but only where there is other evidence displacing or throwing doubt upon it, or where the medical evidence is not unanimous (R v Tumanako 64 A Crim R 149 at 160 per Badgery-Parker J).

98. Evidence of “mental illness” may be found in the behaviour of the accused and medical witnesses may give evidence of the opinion as to whether the accused could appreciate the nature and quality of his act, or if he could, whether he knew it was wrong (Thomas v The Queen (1960) 102 CLR 584).

99. I am required to inform myself of the findings which may be made at the trial and the legal and practical consequences of those findings including a reference to the existence and composition of the Mental Health Review Tribunal and its relevant functions (see section 37, Mental Health (Forensic Provisions) Act.

100. The available verdicts are at trial in relation to each count are as follows:

1. not guilty;

2. not guilty by reason of mental illness; and

3. guilty.

101. If the verdict is “not guilty on the ground of mental illness”, then 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.

102. On the other hand, 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 what is called “due process of law”. The accused then falls under the supervision of the Mental Health Review Tribunal.

103. I remind myself of the composition and functions of this Tribunal.

104. The Mental Health Review Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office.

105. The Tribunal is required to review the cases of all persons found not guilty by reason of mental illness as soon as practicable after the findings made and must make orders as to the person’s care, detention, treatment on release: section 44(1), Mental Health (Forensic Provisions) Act,1990.

106. After reviewing a person’s case, the Tribunal must make an order as to the person’s care, detention or treatment, or as to the person’s release (either unconditionally or subject to conditions): section 44(2), Mental Health (Forensic Provisions) Act,1990.

107. After that time, the Tribunal conducts regular 6 monthly reviews: section 46, Mental Health (Forensic Provisions) Act.

108. The Tribunal may, after reviewing the case of a person under section 46, make an order as to the patient’s continued detention, care or treatment in a mental health facility, correctional centre or other place, or the patient’s release (either unconditionally or subject to conditions).

Medical Evidence in relation to mental illness

Reports of Dr Allnutt dated 6 February, 10 April, 31 July and 6 August 2019

109. Dr Allnutt, Forensic Psychiatrist conducted a clinical examination of the accused by audio visual connection on 14 November 2018, 4 December 2018, 4 February 2019 and 26 June 2019.

Interview with the accused on 14 November 2018, 4 December 2018

110. At that time the accused reported that he “possibly” had paranoid thoughts and that “possibly” someone was out to get him.

111. Dr Allnutt stated as follows:

“When I asked him to explain, he said “It’s a difficult thing to explain. Possibly it’s the reason why I’m here… that one of my workmates, reasonably new to the job, may have planned that”. When I encouraged him to continue, he said “To try to, in a sense, harm me and get me to leave the job I was in, as part of a clever set up”. He said that this particular person was the “complainant”. He had known the person for a few months and found him offensive and rude, “being arrogant, indicating that he may have been not satisfied with me being there”. He said, “In the past but in more recent shifts the person got his keys out near me and his car and waved his arms around” (as if forcing your client to leave early). He thought he was trying to take over, saying “I’m coming in and you must leave” and said this angered him.”

112. Dr Allnutt asked the accused to tell him about his concerns with respect to obese people. The accused said, “as far as I’m concerned most of them are offensive and maybe it’s my problem. I just can’t stand them. I have a big problem with overweight people. Many of them were bullied at school, therefore later in life it comes out on someone possibly me. Anyone’s a target... They tried to do a reversal on myself. It can really get on my nerves” , “things like harassment and things like that”.

113. When Dr Allnutt asked him to clarify and be more specific, he said, “pulling faces and taunts”. He did not know why they picked on him and said this behaviour had been happening since about 2012, saying, “I’ve been in a situation where I was with a very sinister character in a drama group. When you are caught up in a rut with a person; when they appear, I feel a sense of humiliation, there is nothing you can do about it, if you make a move you lose”… They are out to get me. All I have to do is get rid of them, like a reversal of someone being bullied at school; mannerisms… I can detect their intention that they are trying to piss you off… If you have an overweight person he would, as we are doing the interview, try to harass me”.

114. The accused told Dr Allnutt that he believed that obese people were possibly interfering with his ability to get a girlfriend.

115. The accused denied having used any illicit or recreational drugs whilst in custody.

116. In relation to being charged with attempted murder he said, “to me it’s like I feel it was self-defence”. He understood he had stabbed the complainant, saying, “I made a move before he could, that’s my perception, before he did the same thing-a similar move to what I made”.

117. When Dr Allnutt asked him to clarify what he expected the complainant was going to do he said, “something to do with his keys on that he may possibly have got a knife or little by little crafted my death”.

Previous psychiatric, family medical and substance abuse history

118. The accused was unaware of a family history of mental illness.

119. There was no significant medical history. There was no significant substance abuse history.

Background history

120. The accused reported to Dr Allnutt that he was born in London and came to Australia in 1987 at the age of 1 year. He attended school until year 10. He described himself as an average student. He reported that he sometimes engaged in truancy and was also disruptive. He was asked to leave school because of missing school and his behaviour.

121. He reported that he was the youngest of 3 children in his family. He reported a complicated relationship with his parents in his teenage years.

122. After leaving school he studied fine arts for about 2 years. He went to Dubai with his family returning to Australia to study a degree in visual arts with the intention of becoming high school teacher.

123. He finished that degree in 2010 and then did casual work on the Central Coast for about 4 years.

124. He commenced his job as a security guard from 2016.

125. Dr Allnutt stated as follows:

“He said he had come across similar people to the complainant over the years. In his new job at first, he was “okay”; he found work okay and enjoyed it, but when the complainant came along, he said, “It’s as if my world went upside down… as I perceived it, when they (people with obesity) appear it’s like a dark cloud just goes over everything. All of a sudden it all goes wrong. It’s as if their presence makes everyone not like you. It’s as if they chase everyone into thinking that you are bad. By the end of it all they have outdone you, really angered you and made you not want to return to that place. The more you fight against it, the worse it is. It’s all deliberate to make that happen because they were bullied at school and are getting it off their chest to put their badness in someone. Maybe it’s just psychological… My best option is to leave.”

126. Dr Allnutt reviewed the diary entries written by the accused. He also reviewed the documentation prepared by the family.

127. Dr Allnutt noted that there were general practitioner notes dated 28 May 2016 noting that the accused was aggressive and paranoid and had schizoid personality. He did not want to be compliant with his parents and noted the parents lives might be at risk.

128. Dr Allnutt also reviewed the record of interview conducted between the accused and police. It was noted that the accused manifested slow responses during the record of interview.

Interview with the accused on 4 February 2019

129. Dr Allnutt noted that since the accused had last seen him he had been taking medication at night (Aripiprazole). He was also seeing a psychiatrist who is said had diagnosed him with schizophrenia.

130. During this interview Dr Allnutt sought clarification from the accused in relation to his mental state at the time of the alleged offending.

131. Dr Allnutt stated as follows:

“…He stated in the few years prior to the alleged offending he had first seen a demon. His car had broken down and he saw a demon in the passenger seat. In his mind at the time, he had said to the demon that he did not want to see him again. This experience at that stage had reminded him of a Bruce Lee movie where it had been suggested that Bruce Lee was also haunted by demons his whole life. He said every year since, leading up on the alleged offending, on occasions he would see a different kind of a demon from a videogame around the time he was going to sleep.

He said at the material time preceeding the incident and more proximal to the incident, while at work, a demon at work “twirled” into his body and took control of his body around the time that he opened the gate for the complainant and then he heard a voice of the demon saying “get your knife out” twice and then he heard the demon say “do it”. He said at that point “I lost control of anything and did it”. When I asked him why he had not told me about the demon during my last interview with him, he said that the last time he spoke to me he was too embarrassed to open up to anyone about it.

At the material time of the incident, almost immediately after striking the complainant with the knife, he said he felt sorry for the complainant and the demon vanished.”

Dr Allnutt noted that the accused said he had a problem with people who had been mean to him. Specifically, in relation to the complainant he said, “he had a history in the past of being abused by a person that had been rude to him and he saw this person in the complainant.” The accused reported that the complainant was “psychologically bullying me on every shift”, he said it “built up each time I saw him”, “it felt like he was stirring me up and standing over me”. He said that this must have “triggered the demon”.

132. In relation to the “demon”, Dr Allnutt noted that the accused told him as follows:

“…“it was already armed because I was armed, I had bought a weapon for self-defence “.

Further, he had told Dr Allnutt:

“He said when the demon was in him, he knew someone was coming but was not sure who it was and when he opened the gate, he realised it was the complainant. The demon voice then said, “get your knife out”. The demon voice then said, “do it” and he stated, “I struck his throat”. He said “it seemed like a way of getting my revenge on how much he was bullying me. The demon was defending me. I lost control of my innocence. It was my way of vengeance”. At the time he felt that the (sic) lacked control of his behaviour.”

133. Dr Allnutt further noted that the accused reported that he had difficulty going to sleep, he had reduced energy and motivation and self-esteem, he had suicidal thoughts that occurred on a daily basis but denied any particular plan or intent. He was not experiencing any significant voices, visions, tastes or smells. Dr Allnutt stated:

“…He still believed that the complainant had been bullying him, but he added that there was a small chance that this belief was based on a misperception and if it was, he was sorry for that. He stated that it seemed like at the time of the alleged offending he may have hallucinated, but he was not sure about this. He stated that his concern about obese people had “blown over” but it was “still there, that feeling if the person is bullying me”.

Mental status examination

134. Dr Allnutt noted that on the first occasion he saw the accused, he maintained “odd beliefs relating to obese people conspiring to harm him”, which, given the nature of his beliefs, Dr Allnutt considered were probably delusional in nature .

135. On the second occasion Dr Allnutt saw the accused he indicated that he reported depressive and anxiety symptoms and there was suicidal ideation but not aggressive. It was further noted, “His odd beliefs relating to obese people conspiring to harm him, had attenuated but persisted. He denied auditory or visual hallucinations.”

Opinion

136. Dr Allnutt was of the opinion that the accused suffers from paranoid schizophrenia. The differential diagnosis would include a schizoid or schizotypal personality disorder. Specifically, Dr Allnutt stated as follows:

“He describes a belief that people who have obesity have deleterious effect on his ability to pursue intimate relationships, intentionally seek to cause him distress, harass him. This belief system is fixed, and held with conviction, his reasons for holding this belief lack rationality and it is my view consistent with a delusional belief. He also describes unusual auditory experiences related to music. His diary entries, while difficult to read, refer to unusual thought content of persecutory nature, he describes loud thoughts and referential ideas. His family members describe poor self-care, poor social judgement, social withdrawal, concern about his mental state, and observing him appearing to respond to auditory hallucinations.”

Mental state at the time of the alleged offending

137. In relation to the accused mental state at the time of the alleged offending, Dr Allnutt stated as follows:

“In my view, at the material time of the alleged offending your client was suffering from a “disease of the mind”, that is that he was suffering active symptoms of a paranoid schizophrenia in the form of a psychotic mental state characterised by delusional beliefs of experiences of external control, and ideas of reference, persecutory ideation of a delusional nature and auditory hallucinations.

As a consequence of his psychotic symptoms he was experiencing a “defect in reason” in that he was incapable of distinguishing between external reality and his internal psychotic experiences which then impacted on his reasoning and judgment with regard to what he perceived was the complainant’s intent and behaviour towards him.

As a consequence of his defect of reason, in my view he was “unable to know the wrongfulness of his actions” in a moral sense. He had incorporated the complainant into a delusional belief system which would have affected his capacity to rationally interpret the motivations behind behaviours on the part of the complainant, believing his (sic) complainant to be purposefully persecuting him and posing a threat to him. At the material time he also describes feeling as if he was being controlled by a demon that twirled into him, that in my view would have undermined capacity for self-control and along with this, capacity for rational thought and moral thought in relation to the alleged offence. He would have been incapable of “reasoning with a moderate degree of sense and composure” in relation to wrongfulness’ of the alleged offending behaviour. He would have maintained capacity to know the nature and quality of his actions however.”

Additional report of Dr Allnutt 10 April 2019

138. Dr Allnutt was specifically requested to consider QA166 and 167 in the accused ERISP. Those questions are as follows:

Q 166 - Prior to stabbing Peter today did you think what you were about to do was wrong?

A 166 – Sure.

Q 167 – Alright, and why do you think it would’ve been wrong?

A 167 – well, because you wouldn’t like that to happen to you, I guess.

139. Dr Allnutt stated that those questions did not lead him to alter his opinion with regard to wrongfulness. Specifically, he stated as follows:

“Based on information provided to me your client had incorporated the complainant into a persecutory delusional belief system. He believed that at the time his alleged offending behaviour was self-defence; also, at the time he described something twirling into him. He would have been compromised in his capacity to rationally interpret the motivations and intentions behind the behaviours on behalf of the complainant. As a result of his delusional belief that the complainant was persecuting him, he applied an irrational interpretation to the situation and distorted his perception of events; this distortion of the reality to the situation would have influenced his decision making with regard to eh (sic) his behaviour towards the victim including moral decision making and as a result he found justification in acting in the manner that he did at the material time that the alleged offence occurred.”

140. Dr Allnutt concluded as follows:

“I am of the view that despite the comments you refer to in the ERISP-that (as) a result of his illness (he) would have been unable to reason about the matter of wrongfulness with a moderate degree of sense and composure, at the material time of the alleged offence”.

Additional report of Dr Allnutt 31 July 2019

141. Dr Allnutt conducted a further examination of the accused on 26 June 2019. He was of the opinion that there had been an improvement in the accused mental state.

142. Dr Allnutt stated as follows:

“He has rescinded his delusional conviction about obese people and conspiracy by the victim against him. He experiences intermittent and vague brief auditory phenomena. He does not manifest his difficulties with communication as he did before and demonstrates insight into his mental condition.

I believe your client has responded to antipsychotic medication, but continues to manifest mild residual psychotic symptoms which are relatively fleeting. Importantly, my impression is that he has rescinded attachment to those beliefs or conviction about those beliefs or need to act on any aspect of those beliefs.

I would now confirm a diagnosis of paranoid schizophrenia.”

143. Dr Allnutt included a proposed Management plan for the treatment of the accused should he be released from custody.

Additional report of Dr Allnutt 6 August 2019

144. In his final report Dr Allnutt clarified his position in relation to ongoing risk with respect to the accused. Dr Allnutt stated as follows:

“Given the reduction in his symptomology, having regard to the loading of risk factors, I would have regarded him as being in a group of mentally disordered offenders currently at low moderate risk of future aggression, assuming he adheres to his management plan including complying with his medication regime.”

Report of Dr Samuels dated 30 May 2019

145. Dr Samuels, Consultant Psychiatrist conducted an examination of the accused by audiovisual link on 20 May 2019.

146. Dr Samuels reviewed the report of Dr Allnutt dated 6 February 2019. Relevantly, in addition to the observations of Dr Allnutt, he was of the following opinion:

1. That during the ERISP “..the accused appeared to be quite thought disordered at times e.g. when asked in question 176 about the reference to, “monkey” and to express frank delusions of reference e.g. “pulled out keys in an offensive gesture” (question 40) and “opening his mouth and raising his eyebrows” question 58. He also in question 178 alluded to the film Waterboy, his thought processes were hard to follow but he did conclude with the statement, “I cannot believe why I am bunched up with the wrong people all the time from my view”.”

2. That during the ERISP “…the striking features are his odd affect, poor eye contact, mannerisms, facial twitching, posturing, his slow deliberate answering of questions, monotonous tone to his voice and at times frank thought disorder e.g. at 48 minutes (question 178) “…in a nutshell… he reminds me of someone else… like that film Waterboy… see that person is another person…. perhaps you cant really say if I had not met that other person… I may not have done anything at all…”

3. Justice Health notes reveal that the accused “…was psychotic at the time of reception (18/10/2018) and that his symptoms really did not settle until 8 March 2019 when symptoms of psychosis are noted to be resolving.”

4. “On 23 October 2018 he was seen by a psychiatrist. Consideration was given to psychosis and Autism Spectrum Disorder. Corroborative history from his father revealed traumatic childhood events, prescription of Roaccutane for acne and possible personality change in early adolescence and a pattern of increasing isolation.”

5. “On 31 December 2018 the accused was seen by A. Simmonelli. Depression and delusional beliefs around obese people were noted and Abilify (aripiprazole) antipsychotic increased to 15 mg.”

7. “He was then transferred to the Mental Health Screening Unit on 19 February 2019 and acknowledged referential delusions from television. Eye contact was still noted to be poor.”

8. “On 1 March 2019 Dr Smith noted psychosis to be resolving.”

147. In relation to the accused report of his psychiatric history, Dr Samuels noted the following:

“He said that when he was living in Gosford, he was hearing voices and seeing “evil spirits”. He said, “I didn’t want to tell people about it. I grinned and beared it, it was a scary period.” Mr Cottam said he did see his GP in 2013 or 2014 but Mr Cottam did not believe that he was mentally ill. He said that his parents told him the local GP thought he might have had schizophrenia.

Mr Cottam feels that his problems really began in 2016. He said nothing really set it off: he had just gotten a job as a security guard and he quite liked the job.”

148. The accused reported to Dr Samuels that schizophrenia runs in the family. His father’s mother had it, as did one of her sisters. I note that when examined by Dr Allnutt in November and December 2018, the accused reported that he was unaware a family history of mental illness at that time.

149. The accused told Dr Samuels that at the time of the offence he had a psychotic episode. He said:

“I saw a demon enter my body. Only when stabbing him I realised what happened. I felt sorry for him and went to wash my hands, I was going to call an ambulance. I can only stress how sorry I am to Peter and his family and all the grief I caused. I’m angry that I wasn’t diagnosed and on medication and that incident wouldn’t have happened.”

150. He further said:

“I was paranoid, I thought he was going to kill me. When he got the key I thought he was going to stab me. I didn’t know you weren’t allowed to carry a knife…”.

151. Upon mental state examination, Dr Samuels noted the following:

“His affect was blunted but he spoke quite freely and coherently. He said his mood was fine although some days he feels a little depressed. He said he is sleeping and eating well. He denied current hallucinations or seeing demons. He said, “I’m fine now”. He said, “It really only takes one tablet to change everything. If I had been on medication, the incident wouldn’t have happened.”

Opinion

152. Dr Samuels noted that the accused had been diagnosed with a psychotic illness, most likely chronic paranoid schizophrenia.

153. Dr Samuels stated as follows:

“Mr Cottam now acknowledges that from around 2016 he began having frank hallucinations of the Grim Reaper and was hearing voices that gave him various commands. He also acknowledged that he had had some concerns about obese people and he continues to believe that, because of bullying experiences they are likely to have experienced at school, when they get older, “their badness would come out”.

154. Dr Samuels was of the opinion that the diary entries reflect a deteriorating mental state.

155. In the opinion of Dr Samuels there is evidence from the accused presentation in the ERISP that support a conclusion that he was:

“…quite thought disordered and had frank delusional ideation involving obese people with associated delusions of reference. His poor eye contact, twitching, mannerisms and posturing are supportive clinical indicators of a psychotic state operating at and around the time of the offence.”

156. Dr Samuels was further of the opinion that the Justice Health notes are further clinical evidence that he was psychotic at the time of reception and that it took many months to resolve. Dr Samuels concluded as follows:

“It is my view that at the time of the offence, the accused was labouring under a defect of reason from a disease of the mind, with a disease of the mind most likely being a form of Paranoid Schizophrenia which started with prodromal symptoms some time after 2008 and manifested as a florid psychotic illness around 2016.”

157. Further, Dr Samuels indicated he agreed with Dr Allnutt that, at the time of the offence on 14 October 2018 the accused was suffering from a disease of the mind, labouring under a defect of reason and did not understand the nature and quality of his act nor its wrongfulness and that he has the defence of mental illness open to him. Further, that he would not have been able at the time of the offence to conduct himself with a “moderate degree of sense and composure”.

158. I note that whilst Dr Samuels indicated he agreed with Dr Allnutt that the accused did not understand the nature and quality of his act, Dr Allnutt was, in fact, of the opinion that the accused would have maintained capacity to know the nature and quality of his actions.

Reports of Dr Furst dated 12 October 2019 and 25 October 2019

159. Dr Furst, Forensic Psychiatrist, examined the accused via audio visual link on 9 October 2019 for a period of approximately 60 minutes.

160. In relation to the decline of the accused mental health, Dr Furst noted as follows:

“He described an onset of mental health symptoms from the end of 2016 or the beginning of 2017. He said he was ‘hallucinating’ and was ‘hearing voices’, but did not tell anyone about this, hoping his symptoms would go away. He described both visual and auditory hallucinations in the following terms:

“I would see an evil spirit. It would twirl and go into my body. I could feel its presence. It would morph and turn into something else. One hallucination would tell me keep standing… a deeper male voice. The other one would say ‘sit down’, like a cheeky girl’s voice.”

161. Dr Furst noted that the accused reported hearing multiple different voices, often voices that would talk about him and would talk to him.

162. The accused reported to Dr Furst that his auditory hallucinations continued throughout 2017 and 2018 including the time of the alleged offending. The accused also reported, “I felt like people could see my thoughts”. He also reported experiencing apparent delusions of reference when watching television. Further, after attending a laser eye surgery centre to get his eyes checked he said, “it was like people could see what I could see…I thought they put something in there (in his eyes)”.

163. In relation to the events of 14 October 2018 the accused told Dr Furst:

“As soon as I saw Peter Richards at the gate, it triggered off the demons again. I had a psychotic episode. I heard things. On previous shifts when I met him, I thought he was harassing and bullying me. He got his keys out [one week prior to the morning in question] and I thought he was taunting me and might try to kill me.”

164. In relation to the morning of the alleged offending the accused told Dr Furst:

“A demon went into my body and controlled me… and before I knew it, I had cut him a few times…”.

165. Further, he told Dr Furst:

“The demon wanted me to kill him. It commanded me to get my knife out and ‘do it’… I realised at some point what I was doing and felt bad about it, so I stopped.”

Recent progress

166. Dr Furst was of the opinion that the accused symptoms had “now largely resolved, apart from the occasional “quiet” hallucinations, describing these as ‘tiny’”.

167. Dr Furst conducted a mental state examination and noted that there were no acute symptoms of mental illness and he was not paranoid at the time of the assessment nor was he hallucinating. Dr Furst was of the opinion the accused now had insight into being unwell at the time of the offending.

Review of relevant documentation

168. After reviewing relevant documentation, Dr Furst made the following observations:

1. In circumstances where the ERISP interview indicates there was no apparent logical motive for his alleged conduct, it points towards psychotic motivations for his actions.

2. In relation to the diary entries, there were numerous entries which are relevant in relation to both the duration of his apparent psychotic illness and the quality of his thought content. In the opinion of Dr Furst the entries indicate that the accused was showing signs of mental illness in 2017 and that he became increasingly irrational throughout 2018 “coinciding with the more acute phase of his schizophrenic illness”.

3. There are a number of entries in the Justice Health medical records indicating that the accused was suffering from acute signs of schizophrenic illness in the weeks and months after his arrest.

Opinion

169. In the opinion of Dr Furst the accused meets the criteria for the diagnosis of schizophrenia.

170. In relation to the availability of the defence of mental illness, Dr Furst noted as follows:

“The available history from Mr Cottam, as relayed to police in his ERISP, previous assessing psychiatrists Dr Allnutt, Dr Samuels and myself, police evidence, and the extensive entries contained in his Justice Health medical records in the weeks/months following his arrest and his diary entries he wrote are indicative of Mr Cottam suffering from a disease of the mind in the form of schizophrenia for a period of approximately two years leading up to the events in question before the court on 14/10/18. His illness also persisted for several months after his arrest in an attenuated form following active treatment with antipsychotic medication.

Of greatest significance in relation to the mental illness defence, apart from the presence of his schizophrenic illness, was the lack of any logical motive or provocation prior to his alleged actions of stabbing his fellow security worker in the neck and the chest, apparently without saying anything to the victim prior to the attack and then making bizarre comments/asking bizarre questions, specifically telling the victim “I need to do this, it’s the only way I’m going to get a girlfriend” and asking the victim what his Zodiac sign was.

Those observed actions and words, coupled with his own description of having a demon coming to this body and telling him to ‘do it’ [kill the victim] make it highly likely he was driven to commit the offence in question by virtue of his delusional thinking and/or bizarre hallucinations he was experiencing at the time, constituting a defect of reason in the M’Naghten’s sense.

Therefore, I am firmly of the opinion that Mr Cottam was aware of his actions at the time of the alleged offending on 14/10/18 at the Munmorah Power Station construction site in Colongra; however, he was not aware of the wrongfulness of his actions because of his undiagnosed and untreated schizophrenic illness, with associated bizarre delusional thoughts and hallucinations driving his offending behaviour and making him believe that he was doing the right thing at the time. He was also unable to reason about the wrongfulness of his actions, according to the standards of ordinary people, with a moderate degree of sense and composure, as a consequence of his acute psychosis and belief a demon of some type had taken over his body and was telling him to kill the victim. Therefore, I am also firmly of the opinion that Mr Cottam has the mental illness defence available to him, within the meaning of the so-called M’Naghten Rules.”

171. Dr Furst also made recommendations in relation to the future treatment of the accused should he be released from custody.

Report of Dr Furst dated 25 October 2019

172. Dr Furst was asked to further consider Q A166-167 in the accused’s ERISP (in which the accused appears to indicate an awareness of the wrongfulness of his actions).

172. In relation to those questions, Dr Furst stated as follows:

“…I remain in no doubt that Mr Cottam was psychotic at the time of the alleged offence at his workplace and that his actions and stabbing his work colleague were driven by irrational thoughts and psychotic beliefs in particular, such that he has the mental illness defence available to him.

In my opinion, it is likely that Mr Cottam’s responses to the police [Q/A166, 167] at the time of his ERISP where the product of one or more of the following possible explanations:

•   An effort to ‘please’ or agree with the interviewer, Mr Cotton being a vulnerable and mentally ill person at the time;

•   A lack of insight into being a mentally ill person, therefore not being aware of and/or disclosing the extent of his delusional beliefs to the interviewing police;

•   An error in his responses to Question 166 and 167, i.e. he may not have actually been aware or felt that his actions were wrong at the time of the offence earlier that morning, then incorrectly stated he was aware of the wrongfulness of his actions later that evening when interviewed by police;

•   Being aware that his actions were wrong at law, such as because he had been arrested and/or a general intellectual understanding of his actions, but still believing that his actions were morally justified at the time of his alleged offending.”

Consideration

174. Having regard to the medical evidence, I am satisfied that there is overwhelming evidence that the accused was suffering from schizophrenia at the time of the alleged offences. It would appear that his mental health had been deteriorating from as long ago as his teenage years to the extent that his family had serious concerns in relation to his mental health.

175. I am further satisfied he was suffering active symptoms of schizophrenia at the time of the alleged offending having regard to his behaviour towards the complainant, his answers and demeanour in the ERISP and his presentation in the weeks and months after the alleged offending as reported in the Justice Health records.

176. Having regard to the opinions of Dr Allnutt, Dr Samuels and Dr Furst, I am satisfied on the balance of probabilities that:

1. At the time of the alleged offending the accused was suffering from a disease of the mind, namely schizophrenia; and

2. at the time of the commission of the alleged offences he was labouring under a defect of reason from that disease of the mind and, whilst he did know the nature and quality of the act he was doing, he did not know what he was doing was wrong.

177. To the extent that Dr Samuels opines that the accused did not know the nature and quality of his act, I prefer the opinion of each of Drs Allnutt and Furst having regard to the available evidence.

Verdicts

178. Accordingly, the verdicts in accordance with section 38, Mental Health (Forensic Provisions) Act are as follows:

1. In relation to Count 1 - I find the accused not guilty by reason of mental illness.

2. In relation to Count 2 - I find the accused not guilty by reason of mental illness.

3. Pursuant to section 38 (2), Mental Health (Forensic Provisions) Act Mr Cottam is remanded in custody until 29 November 2019 for the making of an order under section 39, Mental Health (Forensic Provisions) Act.

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Amendments

19 December 2019 - Remove typographical error (duplication in p 178(1))

Decision last updated: 19 December 2019