R v Craig James GRANT

[2009] NSWSC 833

CITATION:	R v Craig James GRANT [2009] NSWSC 833
HEARING DATE(S):	17 August 2009
JUDGMENT DATE :	20 August 2009
JUDGMENT OF:	Harrison J
DECISION:	1. I find that the accused Craig James Grant is not guilty of the murder of Jasmine Bell by reason of mental illness. 2. I find that the accused Craig James Grant is not guilty of attempting to wound Andrew O'Grady with intent to murder him by reason of mental illness. 3. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990, I order that Craig James Grant, formerly referred to in these reasons for judgment as the accused, be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. 4. Pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990, I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of this order.
CATCHWORDS:	CRIMINAL LAW – murder – attempt to wound with intent to murder - accused found unfit to plead - special hearing pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 – defence of mental illness – where accused suffered from long history of schizophrenia and delusional psychosis – whether accused knew the nature and quality of his acts or that what he was doing was wrong - defect of reason from disease of mind – unanimous medical opinion of psychiatrists that elements of defence of mental illness made out – accused not guilty by reason of mental illness
LEGISLATION CITED:	Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171 Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v Falconer [1990] HCA 49; (1990) 171 CLR 30 R v Grant [2008] NSWSC 784 R v Kemp [1957] 1 QB 399 R v M'Naghten (1843) 8 ER 718 R v Pangallo (1989) 51 SASR 254 R v Porter [1933] HCA 1; (1936) 55 CLR 182 R v Stiles (1990) 50 A Crim R 13 R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584
PARTIES:	The Crown Craig James Grant (Accused)
FILE NUMBER(S):	SC 2007/5782
COUNSEL:	M M Hobart SC (Crown) J S Manuel (Accused)
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions (Crown) S O'Connor, Solicitor for Legal Aid Commission of New South Wales (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

20 August 2009

2007/5782 R v Craig James GRANT

JUDGMENT

1 HIS HONOUR: On 31 July 2008 the accused was found by Johnson J to be unfit to be tried for the offences of the murder of Jasmine Bell ("the deceased") on 30 July 2007 and of attempting to wound Andrew O'Grady with intent to murder on the same day: see R v Grant [2008] NSWSC 784. On 17 August 2009 the accused came before me upon a special hearing pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). Sections 19 and 21 of the Act provide relevantly as follows:

" 19 Court to hold special hearing after advice received from Director of Public Prosecutions

(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3), 45 (3) or 47 (5) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:


(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and

(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.

(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.



21 Nature and conduct of special hearing

(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

(2) At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation.

(3) At a special hearing:


(a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and

(b) the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and

(c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and

(d) without limiting the generality of subsection (1), the accused person is entitled to give evidence."

2 The procedures for a special hearing were considered in R v Zvonaric [2001] NSWCCA 505; (2001) 54 NSWLR. A special hearing should be conducted as nearly as possible as if it were a trial, including a formal arraignment and the proper reception of evidence: s 21(1) of the Act. Although the practice is not to be encouraged, the tendering of statements that are not read aloud during a special hearing does not infringe the section. A trial judge should expose his or her reasons for the findings that are made in respect of the elements of the offence.

Background

3 The facts are sufficiently recorded in the reasons for judgment of Johnson J and are as follows:

"[11] It is the Crown case that, in May 2007, the deceased, Jasmine Bell, and her partner, Andrew O'Grady, moved into a guesthouse in Harris Street, Fairfield. Also living in the guesthouse was the Accused.

[12] At around 11.30 am on 30 July 2007, Mr O'Grady woke to a knock at the door of their room. He sat up and saw Ms Bell (who was pregnant) standing in the doorway and the Accused trying to push his way into the room. He heard the deceased say "Go away Andrew is asleep" . Mr O'Grady then said "What are you doing, get the fuck out" to which the Accused replied "What cunt?" .

[13] The Accused then produced a knife and moved further inside the room. The knife was approximately 27 centimetres long with a single flat blade. The deceased saw the knife and screamed and tried to move backwards into the room. The Accused said to Mr O'Grady "Say sorry cunt" , to which he replied "Sorry" . The Accused then said "What are you sorry for, what are you sorry for?" and Mr O'Grady replied "I'm sorry for being rude" . At this stage, the Accused was holding the knife out towards both the deceased and Mr O'Grady. The deceased then tried to get around the Accused to get out of the room. As she did this, the Accused lunged forward and stabbed the deceased in the chest. The Accused then swung the knife towards Mr O'Grady who moved backwards to avoid being stabbed. The Accused again made a stabbing motion towards Mr O'Grady's stomach. Mr O'Grady then grabbed the knife and both men struggled over the knife until the blade snapped off in Mr O'Grady's hands. Mr O'Grady then chased the Accused outside the room with the knife blade.

[14] Once outside, Mr O'Grady saw the deceased lying on the ground not far from the front door of their room. The Accused ran passed [sic] the deceased, out the front yard and jumped the gate running up Harris Street towards Fairfield Railway Station. Emergency assistance was sought for the deceased. However, the treatment was to no avail and she was pronounced dead on arrival at hospital. The deceased died from a stab wound to the chest which pierced her lung and then entered the aorta and pulmonary artery. Mr O'Grady suffered five superficial cuts to his left hand. In addition, he suffered a superficial puncture wound to the left side of the upper chest.

[15] At about 12.30 pm on 30 July 2007, the Accused presented himself to Fairfield Police Shop Front and was conveyed to Cabramatta Police Station where he participated in an ERISP in the presence of his uncle. It is fair to observe that the ERISP, which formed part of the evidence at the present inquiry, revealed a significant level of thought disorder in the Accused shortly after the offences."

4 These facts were not in contest before me. There was no dispute about the evidence from which they were derived, all of which was tendered without objection. The evidence clearly established the facts from which the present charges emerge and was substantially to the following effect.

5 Mr O'Grady said that he and the deceased moved into the guesthouse in May 2007. A short time after that they met the accused who would occasionally ask Mr O'Grady for a cigarette. On occasions the accused would come to their room and knock on the door for that purpose. Mr O'Grady said that when the accused talked to him he often did not make sense. Mr O'Grady said that he would talk about many different things and it was difficult to understand what he was talking about. He gave evidence in a statement that contains the same details of what occurred referred to earlier.

6 Mr O'Grady later took part in a photographic identification procedure at the police station. He was able without difficulty to identify the accused as the person who had entered his room and stabbed the deceased.

7 Mr Majok was also a resident of the guesthouse. At about 11.45am on 30 July 2007 he was sitting in his car outside the guesthouse when he heard a woman and a man screaming. The sound was coming from the room of the deceased and Mr O'Grady. The next thing that occurred was that Mr Majok saw the deceased coming out of the front door of the house bent over holding her stomach with blood all over her hand. She fell down on the front lawn of the house near the mailboxes.

8 Mr Majok then saw the accused running out of the front door. He jumped over the fence and ran down the street and out of sight. Mr Majok was able to give a description of the clothes that the accused was wearing. He then saw Mr O'Grady emerge from the house holding a knife and start to chase the accused. Mr O'Grady gave up the chase and threw the knife to the ground. He saw that the knife was a kitchen knife with a broken handle. He said that Mr O'Grady described to him what happened. The description was consistent with the later version given to the police by Mr O'Grady.

9 Mr Majok also later took part in a photographic identification procedure at the police station and identified the accused as the person he had seen at the time of these events.

10 Mark Jackson was also a witness to these events and gave an account of what he saw and heard that was consistent with the evidence of other witnesses.

11 Alan Tranter also lived at the guesthouse. He said that he had seen the deceased and Mr O'Grady in the company of the accused on about half a dozen occasions before the incident on 30 July 2007. He had seen them all leaving the house together and walking along Harris Street. He formed the view that there may have been some connection or friendship among them. Mr Tranter said that he regarded the accused as a bit strange and he formed the opinion that he was "a bit weird'. The accused used to say odd things to him occasionally. Mr Tranter was also a witness to some of the events that took place outside the guesthouse that were described by Mr Majok and Mr Jackson.

12 Patricia Kelly gave a statement to police about the accused. The accused is Mrs Kelly's grandson. She described his early life and troubled and difficult background. His parents separated when the accused was about 11. He originally stayed with his mother but later moved to live with his father. However, when he was about 15 the accused's father asked Mrs Kelly if the accused could come to live with her. That is what happened. She described how the accused subsequently "went down hill". He became untidy in his appearance and would tell her stories that made no sense. He was eventually taken to Liverpool Hospital following a noisy domestic incident and was diagnosed with schizophrenia. He was placed on medication. She became aware that there were times when the accused was sleeping on the streets and was not taking medication as prescribed. The accused told her that there were also times when he would spend the night riding on trains. He occasionally stayed with her overnight.

13 Shortly before he was arrested Mrs Kelly said that she had become very concerned about the accused's behaviour. She said that she could tell that he was not medicated. On one occasion he stood on her porch and started yelling at a man in the street for no apparent reason. On the Monday prior to his arrest he turned up at her house unannounced. His behaviour was odd and Mrs Kelly said that she could tell he was not right.

14 Expert forensic medical evidence confirmed that the deceased died of the effects of a knife wound to the chest that penetrated the aorta and entered the pulmonary artery through the left pleural cavity. The depth of the wound was approximately 8.5 cm from the skin surface of the left anterior chest to the vertebrae.

Conclusion

15 I am satisfied on the limited evidence available that the deceased died as the result of injuries she sustained following an attack upon her with a knife by the accused. I am also satisfied on the limited evidence available that Mr O'Grady sustained injuries at the same time that were caused when the accused attacked him with a knife. I am therefore satisfied beyond reasonable doubt that it was the deliberate acts of the accused that caused the death of the deceased and the injuries to Mr O'Grady.

16 However, I am not satisfied on the limited evidence available that the acts causing the death of the deceased or the injuries to Mr O'Grady were done with an intention to kill the deceased or to inflict grievous bodily harm upon her or with reckless indifference to human life, or in an attempt to wound Mr O'Grady with intent to murder him. My reasons for forming this view are set out below.

Defence of mental illness

17 It is uncontroversial that every man and woman is presumed to be sane and to possess a sufficient degree of reason to be responsible for his or her crimes until the contrary is proven. In order to establish a defence on the ground of mental illness it must be clearly proved that, at the time of committing the act the accused was labouring under such a defect of reason, from disease of the mind as not to know the nature and quality 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.

18 In cases involving a jury the jury would not be required to consider the defence of mental illness until it were satisfied that the offence had been proved beyond reasonable doubt: R v Stiles (1990) 50 A Crim R 13. I also observe that in considering whether an accused person committed the offence(s) charged, a jury would be instructed to ignore the question of mental illness when determining whether the accused had the intent charged, relying upon the presumption of sanity. In this way they may acquit on the defence of mental illness if they find that the accused did not have the necessary intention as a result of the defect of reason. If there were evidence of mental illness, a jury would not consider the question of intention or voluntariness separate and distinct from the issue of mental illness.

19 A "disease of the mind" is any disease capable of affecting the mind, whether it has a mental or physical origin and whether or not the defect of reason is temporary or permanent: R v Kemp [1957] 1 QB 399. Whether the condition amounts to a disease of the mind is a question of law: R v Falconer [1990] HCA 49; (1990) 171 CLR 30 at 60. A "defect of reason" is the inability of the accused to think rationally: R v Porter [1933] HCA 1; (1936) 55 CLR 182 at 189-190; Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 367.

20 A person does not know the nature and quality of his (or her) act if he does not know the physical nature of what he is doing or the implications of it. A person does not know what he was doing was wrong when he does not know that it was wrong according to ordinary standards of right or wrong adopted by reasonable persons (see Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 367), or where the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing: Sodeman v The King (supra) at 215; R v Pangallo (1989) 51 SASR 254.

21 Medical evidence is not essential to prove insanity: Lucas v The Queen [1970] HCA 14; (1970) 120 CLR 171. The tribunal of fact cannot reject unanimous medical evidence unless there is evidence that can cast doubt upon it, but such evidence may be found in the behaviour of the accused. The tribunal of fact may decide between competing medical evidence. Medical witnesses may give evidence of their opinion as to whether the accused could appreciate the nature and quality of his acts or, if he could, whether he knew it was wrong: Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584.

22 The accused was born in 1979 and was therefore 28 years of age on 30 July 2007 when the events that give rise to the present charges occurred. The psychiatric medical history of the accused is long and significant. Its aetiology predates these events and must be considered in some detail. The medical opinions expressed concerning the accused and his mental condition are also unanimous. They are referred to in what follows.

Dr Nielssen

23 Dr Olav Nielssen is a psychiatrist. In his report dated 27 November 2007 he expressed the following opinion after examining the accused on 28 September 2007:

"Mr Grant was assessed to have a severe and disabling form of the chronic mental illness schizophrenia. The diagnosis was made on the basis of his account of typical symptoms of the illness and a pattern of treatment consistent with longstanding mental illness, and the gross disorganisation of thinking and the persecutory beliefs that were evident during the interview.

At the time of the offence Mr Grant was thought to have experienced an acute exacerbation of the illness as a result of having stopped antipsychotic medication about three months earlier. Although the history of recent substance abuse was unclear, recent use of cannabis may also have contributed to the exacerbation of illness.

The diagnosis of substance abuse disorder is based on Mr Grant's account of previous abuse of cannabis and amphetamine and the complications of that abuse, which most certainly include a contribution to the unstable nature of Mr Grant's mental illness and his previous homelessness and criminal charges. The disorder was described as being in remission because he reported having largely given up drugs several years before the offence.

I was unable to elicit a reliable history of the events that led to the offence. However it was quite evident that Mr Grant was acutely mentally ill and I believe he was mentally ill at the time of the offence. He has a severe form of the chronic mental illness schizophrenia, which is recognised in law to be a disease of the mind. His illness gave rise to a defect of reason in the form of persecutory beliefs about Ms Bell and her partner. His beliefs that he was being poisoned and the misidentification of Ms Bell as being present [at] other situations in which he believed he was in danger are delusional beliefs that are associated with serious violence by patients with mental illness.

I believe on the balance of probabilities Mr Grant would have the defence of mental illness open to him, as at the time of the offence he was deprived on [sic] his capacity to understand that his actions were wrong because of the faulty logic arising from his delusional beliefs. He was unable to reason with any sense of composure about the consequences of his actions because of the gross disorganisation of his thinking and impaired emotional regulation associated with acute psychotic illness.

Mr Grant's communication was so disorganised at the time of the recent assessment that I believe he would be unable to follow any proceedings in a meaningful way or give reliable instructions. However, he has only recently resumed treatment with antipsychotic medication after a long period without medication and he may eventually respond to treatment to the extent that he will become fit for trial. I would be happy to review Mr Grant again after a period of consistent treatment and also to review any medical records of his treatment in the community and since his arrest."

24 Dr Nielssen examined the accused again on 7 December 2007 and provided a further report dated 22 January 2008. His further opinion was in these terms:

"The history elicited and the observations made during the second interview confirms my opinion that Mr Grant has a chronic schizophrenic illness. His illness is relatively treatment resistant in the sense that he has persisting delusional beliefs despite four months treatment with high doses of antipsychotic medication. The further history elicited supports the opinion that Mr Grant has the defence of mental illness available to him.

As of 7 December 2007 Mr Grant was assessed to be fit to enter a plea and fit for trial. He was more coherent in his communication, demonstrated a reasonable understanding of the nature of the proceedings and was assessed to be able to follow the proceedings in a general sense and give reliable instructions to his legal representatives. In particular, he recognised that he had a mental illness, even if he was unable to recognise the symptoms of his illness, and did not object to his illness being raised in his defence.

He should remain fit for trial provided he continue[s] to receive treatment with an adequate dose of antipsychotic medication in the period leading up to the trial."

25 The accused was further examined by Dr Nielssen on 17 April 2008 and expressed the following opinion in his report dated 29 April 2008:

"After the most recent interview I am now of the opinion that Mr Grant is unfit to plead and is unfit for trial. His mental state has not continued to improve and if anything is worse than it was at the time of the interview in November. He expressed fixed delusional beliefs about the victim and the events surrounding the offence and appeared to be distracted by active auditory hallucinations during the interview. He initially said that he was willing to enter a plea of not guilty due to mental illness, but was unable to say how he was mentally ill and later contradicted himself by saying that he wanted to plead guilty to get a fixed term.

Hence I now believe Mr Grant is unfit for trial, as his interpretation of events is likely to be affected by ongoing auditory hallucinations and fixed and evolving delusional beliefs, and he would be unable to give reliable instructions while affected by acute symptoms of treatment resistant schizophrenia.

Mr Grant may become fit for trial within twelve months if he responds to treatment with the atypical antipsychotic medication clozapine. About thirty percent of treatment resistant patients have a significant response to clozapine treatment and Mr Grant should be referred to the psychiatric ward of Long Bay Hospital for a trial of this treatment."

Dr Roberts

26 Dr Samson Roberts is a consultant forensic psychiatrist who examined the accused on 5 June 2008 with a view to assessing his fitness to plead at that time. His opinion, set out in his report dated 16 June 2008, was as follows:

"Mr Grant is a 29 year-old man who provides an unclear account of himself so affected by delusional content that it is not possible to determine with certainty which aspect of his account is reflective of reality. It is evident that Mr Grant has a history of psychiatric illness which has led to hospitalisations in the past. Based on his account, his treatment has been characterised by a need for involuntary treatment both in hospital and in the community. His psychiatric condition has been compromised by non-compliance with medication and illicit substance use. During his incarceration he has been under the care of psychiatric services.

Despite being in receipt of supervised psychiatric treatment, Mr Grant continues to exhibit symptoms of his illness. If his account of the pharmacological treatment prescribed for him is an accurate reflection of fact, his condition is being treated aggressively. Based on the contents of Dr Nielssen's reports, it is apparent that despite a protracted period of supervised treatment, Mr Grant's symptoms have not improved over time.

In considering Mr Grant's fitness to stand trial, it is apparent that he has an understanding, albeit imperfect, of those issues outlined in Presser. The nature and severity of his illness however is such that delusional material continues to intrude upon his understanding of issues relating to the offences for which he is before the Court. Additionally, his conduct as demonstrated by the self-inflicted burn aimed at removing a tattoo, indicates that his psychiatric condition continues to impact upon his day to day life. It is therefore expected that his psychiatric illness will adversely impact upon his ability to follow Court proceedings and will intrude upon instructions given to his solicitor. Although he expresses a superficial understanding of the plea of Not Guilty by reason of mental illness and has expressed a desire to enter such a plea, he stated the perception that he will receive a fixed term of incarceration indicating limited understanding of the ramifications of such a plea.

In conclusion, it is my opinion that in the absence of improvement in Mr Grant's mental state, he will remain unfit to enter a plea and unfit to stand trial.

I concur with Dr Olav Nielssen's opinion with respect to the recommendation that a trial of Clozapine be instituted. Given the lengthy period that Mr Grant has remained unwell despite consistent treatment, it is expected that in the absence of a response to Clozapine, he will remain unwell for the foreseeable future and therefore is expected to be unfit to stand trial for in excess of a further twelve months."

27 Dr Roberts' report dated 27 May 2009 was to a like effect. He examined the accused on 15 May 2009 and reported his conclusions relevantly as follows:

"Based on the account provided by Mr Grant, it is considered that he would have available to him a defence of Mental Illness. Mr Grant gives an account of his belief that he was under the control of his uncle at the time of the commission of the offences. He acknowledges that he was intoxicated with alcohol and cannabis at the time. He stated that he was unaware that the conduct in which he was engaged had the potential to either kill someone or even injure someone. On this basis, it is my opinion that Mr Grant was so affected by his psychotic illness and the compounding effects of substances at the time of his commission of the offence, that he was entirely without understanding with respect to the nature of his conduct or the potential consequences of his conduct. It is evident that his ability to reason at the time of his commission of the offence was grossly impaired by virtue of the effects of his psychiatric condition."

Dr Wilcox

28 Dr Rosalie Wilcox is a general and forensic psychiatrist. She gave evidence before me that she has treated the accused since 2000. She has had occasion since he was taken into custody to examine him approximately on a weekly basis. She gave the following further evidence-in-chief:

"Q. Now, doctor, given your long history with this accused, what are able to say about his condition?
A. Mr Grant has unfortunately slowly deteriorated as far as his mental state. He has what we would classify as treatment resistant schizophrenia. His illness has responded quite poorly to traditional medication. And for this reason, he is now on a very high dose of the novel anti-psychotic drug known as clozapine, which is only used in cases where people have failed to respond to all other medications. He is now on a dose of 850 milligrams, which is considered to be quite high, but so far there has been minimal change in his mental state.

*********


Q. And, doctor, how would you assess him at the moment? Is he in relation to this matter before the court are you able to make any assessment as to his state of mental illness?
A. I think Mr Grant remains unfit. He continues to have a very disorganised way of formulating the whole thought process, and he remains mentally ill in relation to his understanding of everything that's gone on beforehand too in relation to the offence. But he also continues to experience symptoms of active mental illness. He experiences hallucinations on an almost daily basis and regularly expresses a whole range of delusions, or by that I mean false beliefs.

Q. What about any auditory hallucination at all?
A. Yes. He continues to have auditory hallucinations on almost a daily basis that often influence his behaviour. He incorporates people into his delusions at times. He has incorporated me into his hallucinations, believing I am influencing his actions, that I have caused him to wet the bed at night. And so he remains a concern.

Q. And as far as you are concerned, doctor, he is so unwell, so mentally ill, that he is, as far as you are concerned, not fit to be in anywhere other place apart from where he is now, is that right?
A. Mr Grant needs to be in a secure hospital, and until there has been any change in his mental state, he will continue to stay in a secure hospital.

Q. In 2000, when you treated him, he showed then signs of schizophrenia and definite schizophrenia and psychosis, did he not?
A. Yes. He showed signs in 2000 from schizophrenia. He had prominent thought disorder. He was responding to auditory hallucinations and was quite delusional.

Q. And his mental state has deteriorated even from that state back in 2000, is that right?
A. From my recollection, in 2000 he responded to treatment then and became less thought disordered and was less disorganised. But on this occasion, there has been virtually no change in his symptoms despite, you know, the medication. So this has been - this progressive deterioration, less response to medication, and overall he has become more treatment resistant.

Q. And, of course, given the situation he is in at the moment, that is the best place to treat a person such as him, because you can ensure that he takes the medication. Is that right?
A. That is correct. I mean, we - at one stage we were concerned that he may not have been taking his medication when it was changed, because the clozapine is given by a tablet, and it can be defaulted on in that patients can sometimes hide it in their mouths, spit it out. But the advantage of clozapine is that you can do blood levels, and we regularly test his compliance with the medication by doing a blood test to check that he is - the level is within the range that we would anticipate it to be within.

Q. And you are satisfied, having checked those blood tests, that he has been taking his medication?
A. That is correct.

Q. And despite the high dosages, there has been no improvement?
A. No, no improvement.

Q. Now, based on that, doctor, are you able to foresee that, given the clozapine has been taken for a considerable period of time now, that it is unlikely there will be an improvement?
A. I would hate to say there would never be an improvement, because I always remain optimistic in treating the patients. But I think with Craig we may have to go to quite extreme doses before we see any improvement, if ever, that we are - well, I am continuing to increase the dose as tolerated, and we - with clozapine, you have to watch the level, because as you go higher, you can lower the seizure threshold, and there is a risk that you can induce the patient to have a seizure and - if you go too high. So it's a balance between trying to get the dose high enough with not causing him to have an epileptic seizure.

Q. In terms of any relation to any mental illness defence, as indicated to you previously, Dr Roberts has indicated that there is such a defence. Would that accord with your general observation of this particular accused, would it not?
A. That is correct. Mr Grant has given a number of different accounts of why he committed the offence, but each of the accounts has been quite delusional and have consisted of a number of persecution beliefs. The most prominent belief he had is that the victim was somehow someone he knew through that her mother, when he was in Parklea Correctional Centre, had placed some device on his back, and this was controlling him, and that she - and he has given all these different accounts, but that was - that's been the most common version, and they have all been persecutionary in nature.

Q. And indeed, have you had a chance to read the record of interview that he gave to the police?
A. No, I have never had a chance to read that, but I understand that he did give a number of different accounts, and they were quite disorganised and bizarre in nature.

Q. Including the one you have just related?
A. Yeah."

29 Dr Wilcox was not cross-examined.

30 I note that evidence given by psychiatrists of statements made by an accused constitutes original evidence even where the statements are not confirmed by the accused in evidence at the trial. The psychiatrists and the tribunal of fact can permissibly use such statements in assessing the state of mind of the accused at the time of the alleged offences: see R vPangallo (supra). I have taken into account the statements of the accused made to the psychiatrists in forming the views I have formed.

Consideration

31 Regardless of who raises the defence, the onus lies upon the accused to prove the requisite mental illness on the balance of probabilities: Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659. In this case the defence was raised by the accused.

32 In the particular circumstances of this case I am satisfied on the balance of probabilities, on the limited evidence available, that the accused was suffering from a disease of the mind and that he was labouring under such a defect of reason as a consequence, that he knew neither the nature and quality of his actions nor that what he was doing was wrong. I consider that the evidence in this respect is overwhelming.

33 The medical opinions concerning the history and development of his condition and the contemporaneous lay evidence concerning his behaviour on and leading up to 30 July 2007 demonstrates that the accused was in an apparently florid and untreatable psychotic state associated with persecutional and delusional beliefs. The psychiatrists who examined him speak with one voice. The accused gave several different accounts of why he committed the offence, but each of the accounts has been quite delusional with irrational and unfounded beliefs of persecution. The experts agree that, having regard to the terms of their specialty as applied to the medical condition of the accused, a defence of mental illness has been made out.

Orders

34 It only remains for me in these circumstances to make the following orders:

1. I find that the accused Craig James Grant is not guilty of the murder of Jasmine Bell by reason of mental illness.

2. I find that the accused Craig James Grant is not guilty of attempting to wound Andrew O'Grady with intent to murder him by reason of mental illness.

3. In accordance with s 39 of the Mental Health (Forensic Provisions) Act 1990 , I order that Craig James Grant, formerly referred to in these reasons for judgment as the accused, be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law.

4. Pursuant to s 39(3) of the Mental Health (Forensic Provisions) Act 1990 , I direct that the Registrar of this Court notify the Minister for Health and the Mental Health Review Tribunal of the terms of this order.

Further matters

35 It is important that the tragic circumstances of this case do not pass without mention of the understandable grief that attends the loss of a loved one. The deceased was a young woman with the happy prospect of a future life with Mr O'Grady and their expected child. Her death was a cruel and unforeseen consequence of events that could not realistically have been prevented or anticipated. I extend my sympathy to those of her relatives and friends who are left without her.

36 It is also important to understand and appreciate that the system of criminal justice in this state does not provide for findings of guilt or punishment for crimes unless the accused person has been found to have committed the charged offence to the requisite standard of proof according to law. There can be a tendency, understandable in the extreme, for some of us to feel the need for vengeance, for punishment and for retribution when the acts of another have led to the death of an innocent person. Sometimes a defence, such as a defence of mental illness as in this case, will appear to many as some kind of inappropriate and artificial legal construct that permits the guilty to go free and victims to be left without answers. It is not. It is necessary at these times to understand that the particular events that occurred in this case are much like a catastrophic and unavoidable accident. The only significant difference in the end result is that it will usually be easier to come to terms with a death resulting from a cruel freak of nature, like a landslide or a bushfire, than those cases where another person has committed the physical acts that have caused the death. Unfortunately for the deceased in this case she was, through no fault of her own, in the wrong place at the wrong time, just as much as if she had perished in a natural disaster.

37 I also extend my sympathies and concern to the relatives and friends of Mr Grant. His long and troublesome mental affliction is a continuing and unfortunate fact of his life and of theirs. Hopefully some relief from its burden emerges for him and for them in the not too distant future.

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