R v Drummond-Murray

[2019] NSWSC 575

Supreme Court

New South Wales

Medium Neutral Citation:	R v Drummond-Murray [2019] NSWSC 575
Hearing dates:	13 May 2019
Date of orders:	16 May 2019
Decision date:	16 May 2019
Jurisdiction:	Common Law
Before:	Wright J
Decision:	1. In respect of count 1, a special verdict that the accused is not guilty on the ground of mental illness is returned. 2. In respect of count 2, a special verdict that the accused is not guilty on the ground of mental illness is returned. 3. In respect of count 3, a special verdict that the accused is not guilty on the ground of mental illness is returned. 4. In respect of count 4, a special verdict that the accused is not guilty on the ground of mental illness is returned. 5. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be returned to his present place of custody and detained there, or at such other place as is deemed appropriate according to law, until such time as he is released by due process of law. 6. The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders.
Catchwords:	CRIMINAL LAW – murder – alternatively, causing grievous bodily harm with intent to murder – assaulting a police constable in the execution of her duties – stealing – defence raised of mental illness –schizophrenia or schizoaffective disorder disease of the mind – unanimous opinion of experts that accused did not know actions wrong because of defect of reason from a disease of the mind – verdicts of not guilty on the ground of mental illness   CRIMINAL LAW – murder – alternatively, causing grievous bodily harm with intent to murder – causation of death – whether injuries and consequent tetraplegia caused death almost two years later
Legislation Cited:	Crimes Act 1990 (NSW) Evidence Act 1995 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Dunkley-Price v The Queen (2015) 73 MVR 450 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718 R v Drummond-Murray [2018] NSWSC 1870 R v Hadler (No 2) [2018] NSWSC 1804 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Zvonaric (2001) 54 NSWLR 1; [2001] NSWCCA 505 Radford v R (1985) 42 SASR 266 Reynolds v R [2015] NSWCCA 29 Robb v The Queen [2016] VSCA 125 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49
Category:	Principal judgment
Parties:	Regina Matthew Drummond-Murray (Accused)
Representation:	Counsel: A Robertson (Crown) L Brasch (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2018/166144

reasons for judgment

Introduction

1. The accused, Mr Matthew Drummond-Murray, has been charged on indictment with four counts, which can be summarised as follows:

1. the first count alleges that, on 16 August 2017 at Surry Hills, the accused murdered Mr Stephen Mottram, the deceased;

2. the second count, which was in the alternative to the first, alleges that, on 6 November 2015 at Surry Hills, the accused caused grievous bodily harm to the deceased, with intent to murder him;

3. the third count alleges that, on 7 November 2015, the accused assaulted Plain Clothes Senior Constable Hansen, a police constable, in the execution of her duty;

4. the fourth count alleges that, on 6 November 2015, the accused stole a knife the property of Woolworths Ltd.

2. The disparity in dates between the first and second counts is explained by the fact that life threatening injuries were allegedly inflicted on 6 November 2015 which rendered the deceased a tetraplegic. He did not, however, die until 16 August 2017.

3. The accused has been in custody, bail refused, since 7 November 2015.

Background to the Special Hearing

4. For present purposes, it is sufficient to note that, before the deceased died, there had already been a fitness hearing in the District Court in respect of the charges the subject of the second, third and fourth counts and, on 9 February 2017, Frearson SC DCJ had found the accused unfit to be tried.

5. On 6 December 2018, Button J found that the accused was unfit to be tried on the murder charge and the other charges in the indictment already referred to. [1] The accused was referred to the Mental Health Review Tribunal (the MHRT) and remanded in custody. [2]

   1. R v Drummond-Murray [2018] NSWSC 1870.

   2. Under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act).

6. On 26 March 2019, the MHRT determined that the accused would not become fit to be tried within 12 months of this Court’s finding of unfitness. The MHRT advised the Court and the Director of Public Prosecutions (the DPP) of its determination. [3]

   3. In accordance with s 16 of the MHFP Act.

7. By letter dated 28 March 2019, the DPP informed the court that he intended to proceed with the charges in accordance with the indictment containing the four counts already referred to. Consequently, the matter was listed for a special hearing. [4]

   4. In accordance with s 19(1) of the MHFP Act.

The Special Hearing

8. The special hearing took place on 13 May 2019.

9. The purpose of a special hearing is to ensure that, despite the unfitness of the person to be tried in accordance with the normal procedures, 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. [5]

   5. Section 19(2) of the MHFP Act.

10. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, [6] and the accused must generally be legally represented. [7] In this case, the accused was represented by Mr Brasch, of counsel.

    6. Section 21(1) of the MHFP Act.

    7. Section 21(2) of the MHFP Act.

11. Although at a special hearing an accused cannot, on his or her own account, enter a plea, the accused is taken to have pleaded not guilty in respect of the offence charged. [8] Consequently, a plea of not guilty was entered by the Court on the accused’s behalf in respect of each count, when he was arraigned on 13 May 2019, as follows:

    8. Section 21(3)(a) of the MHFP Act.

1. that the accused “on the 16th day of August 2017, at Surry Hills in the State of New South Wales, did murder Stephen MOTTRAM”, contrary to s 18(1)(a) of the Crimes Act 1990 (NSW)

2. in the alternative to count 1, that the accused “on the 6th day of November 2015, at Surry Hills in the State of New South Wales, did cause grievous bodily harm to Stephen MOTTRAM with intent to murder the said Stephen MOTTRAM”, contrary to s 27 of the Crimes Act

3. that the accused “on the 7th day of November 2015, at Surry Hills in the State of New South Wales, did assault Shanlee HANSEN being a Constable of NSW Police in the execution of her duty”, contrary to s 58 of the Crimes Act

4. that the accused “on the 6th day of November 2015, at Surry Hills in the State of New South Wales, did steal an Arcosteel brand knife the property of Woolworths Limited”, contrary to s 117 of the Crimes Act.

12. The matter proceeded to special hearing before me, as a judge sitting alone, as there was no election made by the accused, his representative, or the prosecutor to have the special hearing determined by a jury. [9]

    9. Section 21A(1) of the MHFP Act.

13. The verdicts available to a judge determining a special hearing without a jury are the verdicts which would be available to a jury under s 22 of the MHFP Act. [10] Those verdicts are set out in s 22(1) and they are:

“(a) not guilty of the offence charged,

(b) not guilty on the ground of mental illness,

(c) that on the limited evidence available, the accused person committed the offence charged,

(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.”

10. Section 21B(1) of the MHFP Act.

14. The verdict entered by the judge sitting alone has, for all purposes, the same effect as a verdict of a jury. [11]

    11. Section 21B(1) of the MHFP Act.

15. My determination in this special hearing must include the principles of law I have applied and the findings of fact on which I have relied. [12]

    12. Section 21B(2) of the MHFP Act.

The Crown case in outline

16. The Crown case was that, in November 2015, the accused was then aged 37 years and suffered from a longstanding schizophrenic condition. He had become infatuated with a woman who worked at Fraser Motorcycles, a shop in William Street, Darlinghurst. He called her Angie, although that was not her real name. On 5 November 2015, the accused was filmed on CCTV leaving flowers for her at the shop. That afternoon, the accused had been admitted to a facility operated by the Salvation Army as a shelter for homeless men. It consisted of two parts, Foster House and Knudsen House, but nothing turns upon this. For simplicity, I shall refer to the facility as Foster House.

17. The accused recounted that, on 6 November 2015, there was an incident at about 11am when a woman “brushed him off”, which upset him.

18. In the afternoon of that same day, Mr Mottram, then aged 27, had a sharp disagreement with his grandmother with whom he lived in Woolloomooloo. He was somewhat intoxicated. Police were called and he was taken to a police station.

19. On the evening of 6 November 2015, the accused stole a knife from the Woolworths store near Central Station and returned to Foster House.

20. Eventually, Mr Mottram was taken to Foster House at about 10:30pm, where he was admitted. There, Mr Mottram encountered the accused on a ramp outside the entrance to Foster House where Mr Mottram had gone to smoke.

21. It is alleged that, whilst the two men were on the access ramp to Foster House, the accused stabbed Mr Mottram. The CCTV footage of the ramp area recorded what occurred in the attack as well as the arrest of the accused and the attendance of ambulance officers shortly thereafter.

22. Early the following morning, the accused participated in an electronically recorded interview with police in which he made certain admissions and gave some explanation as to why he had stabbed Mr Mottram. Also on 7 November 2015, while a buccal swab was being taken, the accused is alleged to have assaulted a police officer by punching her. This was also recorded on CCTV.

23. The forensic psychiatrists qualified by the Crown and the defence were both of the opinion that the accused had available to him the defence that, as at 6 November 2015, he was not guilty of any offence on the ground of mental illness.

24. The Crown case was that Mr Mottram was rendered a tetraplegic as a result of the injuries inflicted by the accused on 6 November 2015, and died as a result of those injuries and that condition on 16 August 2017.

25. Both the Crown and the accused submitted that, in the circumstances of the present case, the appropriate verdict was one under s 22(1)(b) of the MHFP Act. In other words, they contended that the accused should be found not guilty on the ground of mental illness.

The evidence

26. The Crown approached the evidence in this matter by tendering two folders of documents, [13] which contained:

    13. Exhibit A.

1. a copy of the indictment and a chronology;

2. three reports of Prof David Greenberg, a forensic psychiatrist, dated 4 July 2016, 20 February 2018, and 23 September 2018;

3. four reports of Dr Richard Furst, forensic psychiatrist, dated 27 May 2016, 4 July 2016, 31 January 2017 and 1 September 2018. Dr Furst was retained on behalf of the accused but his were reports were included in the Crown’s tender bundle by agreement;

4. materials relating to the District Court fitness proceedings;

5. the MHRT determination of 26 March 2019 and the DPP’s letter of 28 March 2019;

6. 12 statements from lay witnesses, together with client notes concerning the accused, a death certificate of one of the lay witnesses and photographs taken by another of the lay witnesses;

7. 10 statements from police officers;

8. materials relating to the arrest of the accused including a transcript of the electronically recorded interview voluntarily given by the accused on 7 November 2015 (the ERISP) and a certificate of analysis of the accused’s blood and urine;

9. photographs of the crime scene including the photographs referred to in the statement of the crime scene investigation officer, Senior Constable Dews, and still images from relevant CCTV footage; and

10. medical materials relating to Mr Mottram, including a medical certificate of cause of death and his death certificate, expert statements from Dr Tran and Dr Shetty, an expert report from Dr Shetty, and medical notes from St Vincent’s Hospital concerning the deceased.

27. The only witness who was called to give oral evidence was Detective Senior Constable Lindner. He had attended the crime scene at Foster House on the evening of 6 November 2015 and reviewed the CCTV footage from that location. He also reviewed the CCTV footage from the Woolworths store, at which the accused acquired the knife used in the attack, and the CCTV footage of the accused leaving flowers at the motorcycle shop. In addition, Det Snr Cst Lindner conducted the ERISP on 7 November 2015 and reviewed footage from the CCTV in the DNA room where the buccal swab was taken from the accused.

28. Videos of the following were played in court and the discs containing the videos became exhibits in the proceedings:

1. the Woolworths store CCTV footage from 6 November 2015; [14]

   14. Exhibit B.

2. the 16 camera CCTV footage from Foster House on 6 November 2015; [15]

3. the ramp CCTV footage from Foster House on 6 November 2015; [16]

4. the ERISP given by the accused on 7 November 2015; [17]

5. the CCTV footage from the DNA room; [18]

6. the CCTV footage from Fraser Motorcycles from 5 November 2015. [19]

   15. Exhibit C.

   16. Exhibit D.

   17. Exhibit E.

   18. Exhibit F.

   19. Exhibit G.

29. There was no cross examination of any of the witnesses. All of the statements and other material were tendered without objection and, in effect, the Crown and the defence agreed to waive the rules of evidence.

30. Although the parties did not expressly seek an order under s 190 of the Evidence Act 1995 (NSW), it appeared to me to be appropriate to proceed in the manner proposed if I were satisfied that an order under s 190 would have been made, if sought. Section 190 relevantly provides:

“(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:

(a) Division 3, 4 or 5 of Part 2.1, or

(b) Part 2.2 or 2.3, or

(c) Parts 3.2–3.8,

in relation to particular evidence or generally.

(2) In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless:

(a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or

(b) the court is satisfied that the defendant understands the consequences of giving the consent.

…

(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account:

(a) the importance of the evidence in the proceeding, and

(b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding, and

(c) the probative value of the evidence, and

(d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.”

31. During the hearing, Mr Brasch of counsel, who appeared for the accused, took time to provide advice to the accused, as envisaged by s 190(2)(a), concerning the way in which the evidence was proposed to be adduced and to consent to what was proposed.

32. Having regard to the nature of the special hearing, the fact that both parties submitted that the appropriate verdict was not guilty on the ground of mental illness, what was and was not in issue in these proceedings especially given the extensive CCTV footage of relevant events, the significant probative value of the evidence in the folders tendered by the Crown, the fact that other orders or directions in relation to the evidence were not appropriate, and the advice received by the accused, I determined that it was appropriate to proceed as proposed, since I would have made an order under s 190(1), if that had been sought and was otherwise necessary. In my view, the procedure adopted by the parties was appropriate and efficient and was not inconsistent with s 21(1) of the MHFP Act. [20]

    20. R v Zvonaric (2001) 54 NSWLR 1 at 6; [2001] NSWCCA 505 (Spigelman CJ, Sully J agreeing).

Legal Principles

33. In reaching my verdicts in these proceedings, I have applied the following legal principles.

Presumption of Innocence

34. The accused is not required to prove his innocence. He is presumed to be innocent unless the prosecution proves, on the limited evidence available, that the offences charged were committed.

Onus and Standard of Proof

35. The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. Putting to one side for the moment the defence of mental illness, in relation to the offences charged, the onus remains on the Crown from beginning to end.

36. The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its important witnesses said in evidence. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of each of the offences charged.

37. When, as in this case, an accused relies on the defence of mental illness, [21] there is an onus on the accused to prove that he is not criminally responsible for his acts because of his mental illness. To this extent, there is an onus on the accused in this hearing, but the standard of proof is the lesser civil standard, on the balance of probabilities. [22] I shall discuss the defence of mental illness in more detail later.

    21. See s 38 of the MHFP Act.

    22. The Queen v Falconer (1990) 171 CLR 30 at 42 (Mason CJ, Brennan and McHugh JJ) and 61 (Deane and Dawson JJ); [1990] HCA 49.

38. That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter.

Expert Evidence

39. In the present case, the most significant expert evidence was that of the two forensic psychiatrists, Prof Greenberg and Dr Furst, in relation to the defence of mental illness.

40. The expert psychiatric evidence was not challenged and, in very large measure, the two psychiatrists agreed. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that do not accord with what I have found to have been proved on the evidence, if the experts were not briefed with all relevant material, if their conclusions were not adequately explained in the reasoning in their reports or if there were some reason to doubt that the witnesses had relevant expertise. In the present case, however, the experts’ opinions were supported by the evidence, which I accept. There was no suggestion that they did not have access to the necessary information when forming their opinions. Their reasoning, by which they reached their conclusions, was adequately exposed in their reports and there was no issue that they lacked relevant expertise.

41. It is well established that if medical evidence relating to the issue of mental illness is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it. [23]

    23. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme and Bellew JJ) and the cases there cited.

What the Crown has to Prove: Essential Elements

42. The essential elements of the murder charge, which the Crown must prove beyond reasonable doubt, are:

1. the accused caused the death of Mr Mottram;

2. this was by means of a voluntary or deliberate act; and

3. the act was done with an intention to kill or to inflict grievous bodily harm.

43. The essential elements of the alternative charge of causing grievous bodily harm with intent to murder, which the Crown must prove beyond reasonable doubt, are:

1. the accused caused grievous bodily harm to Mr Mottram;

2. this was by means of a voluntary or deliberate act; and

3. the act was done with the intention of killing Mr Mottram.

44. The essential elements of the charge of assaulting a police constable, PCSC Hansen, in the execution of her duty, which the Crown must prove beyond reasonable doubt, are:

1. the accused assaulted PCSC Hansen;

2. PCSC Hansen was a constable of police;

3. the accused’s conduct occurred while PCSC Hansen was executing her duties as a constable of police.

45. The essential elements of the charge of stealing a knife the property of Woolworths Ltd, which the Crown must prove beyond reasonable doubt, are:

1. the accused took and carried away the knife;

2. the knife was the property of another person, namely Woolworths Ltd;

3. the accused intended to deprive Woolworths Ltd permanently of the knife.

Causation

46. As has already been noted, the Crown alleges that the deceased was stabbed and suffered serious injuries, on 6 November 2015, which left him a tetraplegic. His death did not occur, however, until 16 August 2017, almost two years later. In these circumstances in relation to the murder charge, a significant issue arises as to whether the attack on 6 November 2015 caused the deceased’s death.

47. The question of causation is a question of fact. It is to be approached as an exercise of common sense and not by resort to philosophical or scientific theories. There may be more than one cause of death. It is not necessary that the conduct of the accused be the sole or even the principal cause of death. Nonetheless, in order for the accused to be found to have committed the offence of murder, the Crown must establish beyond reasonable doubt that the accused’s conduct on 6 November 2015 was a substantial or significant cause of Mr Mottram’s death in August 2017. The causal connexion must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. [24]

    24. Royall v The Queen (1991) 172 CLR 378 at 411 (Deane and Dawson JJ); [1991] HCA 27; Reynolds v R [2015] NSWCCA 29 at [40]-[44] (Hall J, Gleeson JA and Johnson J agreeing); Robb v The Queen [2016] VSCA 125 at [60] (Ashley, Osborn and Priest JJA quoting Kaye JA in Dunkley-Price v The Queen (2015) 73 MVR 450 at [38]-[41]).

Defence of mental illness

48. Where the defence of mental illness is raised, it is necessary first to consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts. [25]

    25. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Hadler (No 2) [2018] NSWSC 1804 at [203].

49. The principle to be applied is that persons are presumed to be sane, and to possess a sufficient degree of reason to be responsible for their crimes, until the contrary is proved. To establish a defence on the ground of mental illness in this case, it must be clearly proved that, at the time of the committing of the acts, the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the acts he was doing; or, if the accused did know their nature and quality, that the accused did not know that the acts were wrong. [26]

    26. M’Naghten’s Case (1843) 10 Cl & Fin 200 at 210; 8 ER 718 at 722.

50. In this context, “disease of the mind” means “mental illness”, and a temporary disorder or disturbance of an otherwise healthy mind, that is not prone to recur and is caused by external factors, is not to be regarded as disease of the mind. [27]

    27. The Queen v Falconer (1990) 171 CLR 30 at 53-54; [1990] HCA 49, Radford v R (1985) 42 SASR 266 at 274-5.

51. It may be concluded that an accused did not know that what was done was wrong if, as a result of mental illness, the accused could not reason about the matter with a moderate degree of sense and composure. “Wrong” in this context is to be judged according to the everyday standards of reasonable people. [28]

    28. See the jury direction quoted in The King v Porter (1933) 55 CLR 182 at 189-190; [1933] HCA 1.

52. In summary, for the defence of mental illness to be available to the accused in this case, he must establish on the balance of probabilities that, as a result of a defect of reason arising from mental illness:

1. he did not appreciate the nature and quality of the physical acts involved in cutting the deceased’s throat and severing his spinal cord, or doing the acts the subject of the other charges; or

2. he did not know that those acts were wrong, according to the everyday standards of reasonable people.

53. Section 38 of the MHFP Act provides for a special verdict, which is also the verdict in s 22(1)(b) of that Act, where an accused is not criminally responsible because of mental illness. It is in these terms:

“38 Special verdict

(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.”

54. There are consequences that flow from the return of a special verdict, as provided by s 39 of the MHFP Act, and by Div 2 of Pt 5 of that Act. I have taken these matters into account in reaching my decision.

Findings

55. None of the evidence was challenged during the hearing nor was there any issue as to what had occurred. Apart from minor discrepancies concerning dates in the evidence of Mr Muslu, the manager of Fraser Motorcycles, the evidence was credible and consistent. I have no reason not to accept generally, and I do accept, the evidence contained in the witness statements from the lay, police and expert witnesses, as well as the medical evidence concerning Mr Mottram’s injuries, treatment and death. The CCTV footage from the various locations is consistent with and confirms the witnesses’ evidence.

56. On the basis of all of the evidence, my relevant findings are as follows.

The accused’s recent psychiatric history

57. The accused was incarcerated between 15 June and 14 October 2015. He was admitted to an acute care ward at Long Bay Hospital in August 2015 because he was psychotic and self-harming. He was scheduled by the psychiatrists at that hospital on 13 October 2015 and transferred to Prince of Wales Hospital. There he was noted to be overtly psychotic with bizarre delusions, thought disorder and hallucinations. It was noted that he self-injured by piercing his eyebrow, was punching walls, had assaulted Corrective Services officers and had poor insight and judgement into his mental illness and behaviour. It was reported that he described erotomanic delusions that he was fixated on a female he referred to as “Ashley” from the pub.

58. On 14 October 2015, the accused was admitted to Prince of Wales Hospital. At this time, his primary diagnosis was schizophrenic disorder with a secondary diagnosis of mental and behavioural disorder due to stimulants. He was noted to be homeless. After being granted escorted leave on about 26 October 2015 he is described as having gone AWOL, or absent without leave, and was discharged.

59. For about a year prior to November 2015, the accused had been frequenting a motorcycle shop in William Street, Darlinghurst known as Fraser Motorcycles. This shop was sometimes described by the accused as the Ducati shop. Initially he had purchased a few items from the shop and, at times, he would sit and drink wine in front of the shop. As time went on his behaviour became stranger and he started to frequent the shop daily and appeared to be infatuated with a female who worked at the shop. He called her “Angie”, however that was not her name.

The accused’s activities on 5 November 2015

60. On 5 November 2015 on two occasions the accused left bunches of flowers just inside the front door of the motorcycle shop and left. This was captured on CCTV footage.

61. Later in the afternoon on 5 November 2015, the accused was provided accommodation at Foster House together with other general assistance and support.

Mr Mottram’s activities earlier on 6 November 2015

62. On 6 November 2015 in the afternoon and early evening, Mr Mottram, the deceased, had a violent and abusive argument with his grandmother with whom he lived in Woolloomooloo. He had been drinking alcohol and smoking cannabis with some of his friends. At about 8pm the police attended the house and took Mr Mottram to Surry Hills police station.

The accused’s activities earlier on 6 November 2015

63. On 6 November 2015, the accused presented at Foster House again at 4:50pm without any gear. He appeared highly intoxicated and tired but stated that he had been drinking wine only. He was offered a meal, clothes and toiletries for a shower at this time but he refused all of these and went straight to bed. He woke up at about 8:35pm and was given food.

64. Later that night at 10:09pm, the accused is recorded entering the Woolworths store near Central Station on CCTV. The CCTV also showed him taking an item from the store and leaving without appearing to pay for it. During the ERISP, the accused explained that the knife, used in the attack on Mr Mottram, came from Woolworths near Central and that he “petty theft it about 7 o’clock, 8 o’clock or something.” It can be noted here that another resident of Foster House found packaging for a knife of the sort used in the attack when he was walking back to Foster house from the park near Central Station, on 8 November 2015. He took photographs of the packaging where he found it, and then picked up the package and took it with him, and eventually gave it to police. The packaging for the knife matched the appearance of the item taken by the accused from the display in Woolworths as depicted in the CCTV footage. I am satisfied that the accused took the knife used in the attack from Woolworths at about 10:10pm on 6 November 2015 without paying for it.

65. Later on 6 November 2015 at about 10:25pm, the accused returned to Foster House. Another resident of Foster House, Mr Caldwell, was alone near the ramp which leads into Foster House from a gate opening onto Hands Lane. He saw the accused walking along the lane and saw him lean through the bars and place an item close to the rubbish bin on the ramp. He could not see what it was but he heard it land. The accused was let in through the remotely operated gate by Mr Pham, who was a support worker at Foster House. Mr Caldwell saw the accused go over to where the item had been put, pick it up and place it in his pocket. On the CCTV footage of the ramp, the accused can then be seen extending his arm and in his left hand is what appears to be a knife. I accept that the accused brought the knife he had taken from Woolworths into the ramp leading up to the entrance to Foster House in the manner described by Mr Caldwell.

Mr Mottram attends Foster House

66. On the same evening, the police took Mr Mottram to Foster House where a bed had been arranged for him for the night. He arrived at the reception desk at 10:37pm, as recorded on the CCTV for Foster House. Mr Mottram was booked in by Mr Pham. When Mr Pham had finished taking his details, Mr Mottram asked whether he could have a smoke before going to bed. Mr Pham indicated that he could go out onto the ramp, outside the entrance doors to the reception area, and have a smoke there and then come back. Mr Mottram went out onto the ramp.

67. The accused and Mr Caldwell were both on the landing of the ramp where it changed direction when Mr Mottram walked out. There were two plastic milk crates there on the landing together with a bin. Mr Mottram joined the other two men and said to Mr Caldwell “Do you want to smoke?” And he replied “Give him one”, pointing towards the accused. Mr Caldwell then walked back up the ramp into Foster House at 10:46pm.

68. Mr Mottram was smoking a cigarette sitting on the ground, with his head visible on the CCTV footage. The accused, who was sitting on or near the milk crates, could not be seen in that footage. The accused asked Mr Mottram for a cigarette but was not given one.

The attack

69. At 10:49pm, the accused pushed Mr Mottram over onto his left side then straddled him while holding the knife. The accused reached down towards the area of Mr Mottram’s neck, who did not appear to resist or attempt to defend himself. The accused continued to cut or saw at Mr Mottram’s neck. Mr Mottram’s body ended up lying down the ramp with his head towards the bottom. After the accused stood up and as he walked down the ramp, he threw the knife onto the floor. Mr Mottram did not appear to be able to move, and a significant amount of blood ran from his head and neck in two streams down the ramp towards the Hands Lane entrance gate. The accused then smoked a cigarette towards the bottom of the ramp. After a short while he walked back and retrieved the knife and attempted to throw it away but it hit the wall and fell back onto the ramp not far from the deceased.

Staff, police and ambulance response

70. At about this time, Mr Pham was completing his walk-through check of the dormitory and other rooms and eventually came to the bottom of the ramp where he noticed fluid on the ground. He looked up and saw Mr Mottram lying at the landing where the ramp changed direction. He could see that the whole head was covered in blood, and that blood was running down the ramp, and he saw the knife close to Mr Mottram. He looked further up the ramp and saw the accused, who was standing with his back leaning against the back wall and staring at the body. Mr Pham said “What has happened?” The accused said twice “I killed him”. Mr Pham then went back to summon staff assistance.

71. One of the staff who came to assist was Mr Damos. He ensured that the accused was disarmed and asked him where the knife was. The accused said “It’s already dropped” and pointed to the knife which was on the ramp about half a metre from Mr Mottram. Mr Damos then got the accused inside. Staff stayed with Mr Mottram until the ambulance arrived. Shortly after the police arrived, they retrieved the knife. It was an Arcosteel brand knife about 24 cm long with a blade length of about 13 cm. The accused was handcuffed and placed in the rear of a police vehicle.

72. A conversation between the accused and Det Snr Cst Lindner then took place in which the accused admitted that he caused the injuries to Mr Mottram with the knife because “he was getting under my skin” and “I sorted him out”.

73. The accused was taken to Surry Hills charge room, where among other things, blood and urine specimens were taken. Neither drugs nor alcohol were detected in those samples.

The ERISP

74. Early on the morning of 7 November 2015, the accused gave an electronically recorded interview. During the ERISP, the accused confirmed what he had said to Det Snr Cst Lindner the night before about causing the injuries with the knife and why he had done it. The ERISP also contained answers from the accused which gave significant insight into his mental state and ability to reason concerning whether his actions were morally wrong. These answers formed an important part of the material upon which the psychiatrists based their opinions. In these circumstances, it is worthwhile quoting from the ERISP at some length. Because of the length, however, the quotations from the transcript of the ERISP are included in an appendix to these reasons.

75. Having viewed the video recording of the ERISP, I am satisfied that the transcript quoted in the appendix is an accurate record of what was said.

The attack on PCSC Hansen

76. At about 8:40am on 7 November 2015, PCSC Hansen and another police officer escorted the accused to the DNA room to obtain a buccal swab. There was a CCTV camera monitoring the DNA room and what occurred was recorded in the CCTV footage, which I have viewed. At about 8:52am, the accused was sitting in a chair across from PCSC Hansen who was reading out the consent form when he leapt out of the chair and attacked her. There were two punches and at least one punch connected with her chest. As the two officers were wrestling the accused to the ground, he grabbed PCSC Hansen’s hair. Another officer came into the room to assist in restraining the accused and he was handcuffed. When asked what happened the accused said “I don’t know. I just snapped”.

Mr Mottram’s injuries, treatment and death

77. Mr Mottram was taken to St Vincent’s Hospital where he was attended by Dr Tran at about 11pm. On admission, he was suffering from a penetrating injury to the right neck and was in cardiac arrest secondary to bleeding from the neck wound. On examination, it was noted that there was an open right neck laceration of approximately 12 cm in length but the right carotid and internal jugular vein were on view and were intact. CPR was administered to maintain cardiac output and, upon return to spontaneous circulation, Mr Mottram was intubated to maintain the airway, and the bleeding from the neck wound was controlled.

78. On 7 November 2015, Mr Mottram was transferred to St George Hospital under the care of Dr Christine Bowles, a trauma surgeon. An MRI of the spine revealed a complete cord transection at the level C3/C4 vertebra. He was transferred to Prince of Wales Hospital ICU on 7 January 2016. On detailed spinal injury assessment, he was found to have a C3 AIS A (complete) tetraplegia. He initially required ventilation but he was weaned off this.

79. In his report of 25 April 2016, Dr Shetty, a spinal medicine and pain management specialist, who was also Mr Mottram’s treating specialist at Prince of Wales Hospital, noted that Mr Mottram’s spinal rehabilitation was complicated by numerous issues including:

1. aspiration pneumonia with right hemidiaphragm paralysis;

2. pseudomonas urinary tract infection;

3. neuropathic pain affecting the whole body;

4. spasticity;

5. bowel issues;

6. smoking and alcohol misuse with a background of foetal alcohol syndrome;

7. unresponsive episodes;

8. limited engagement in rehabilitation;

9. left proximal tibia fracture.

80. Dr Shetty was of the opinion that Mr Mottram would remain a tetraplegic for the rest of his life and the usual life expectancy for his level of injury was about 70% of normal.

81. In a later statement of 14 March 2018, Dr Shetty noted that Mr Mottram had had numerous admissions to Prince of Wales Hospital all through late 2016 and early 2017 with complications secondary to his spinal cord injury, primarily related to respiratory and urinary tract infections and pain issues. Mr Mottram finally succumbed to those complications secondary to severe cardio respiratory failure due to sepsis on 16 August 2017.

82. Mr Mottram’s death certificate stated that the cause of death and duration of illness were:

“(i)(a) Sepsis, days

(b) supra pubic catheter infection, days

(ii) C4 quadriplegic, foetal alcohol syndrome, aspiration pneumonia, Autonomic dysreflexia, years”

83. Based on all of this material and the evidence as a whole, I accept Dr Shetty’s opinion that Mr Mottram’s “cause of death [was] a direct relationship to the complications secondary to the spinal cord injury”.

Preliminary conclusions

84. Having regard to the evidence as a whole, including the CCTV footage, the absence of any contest concerning these matters and, in particular, to my findings referred to above, I am satisfied beyond reasonable doubt that the accused voluntarily or deliberately cut Mr Mottram’s throat and severed his spinal cord in the attack on the night of 6 November 2015, leaving him a tetraplegic. I am also satisfied beyond reasonable doubt that the injuries inflicted on that occasion and the resulting tetraplegia were a substantial and significant cause of Mr Mottram’s death in August 2017. Thus, the Crown has discharged its onus of proof in respect of the physical elements of the offence of murder, in count 1.

85. In the light of the findings concerning the murder charge and my other findings, I am also satisfied to the requisite standard that the Crown has discharged its onus of proof in respect of the physical elements of the grievous bodily harm offence, which is the subject of count 2.

86. Similarly, having regard to the evidence as a whole, including the CCTV footage, the absence of any contest and, in particular, my findings referred to above, I am also satisfied beyond reasonable doubt that:

1. the accused assaulted PCSC Hansen in the DNA room on 7 November 2015, that she was a constable of police and that at the time she was assaulted she was executing her duties as a constable of police; and

2. the accused took the knife in its packaging from the display at the Woolworths store near Central Station on 6 November 2015 without paying for it and kept it until after the attack on Mr Mottram.

87. It is necessary now to consider the question of whether the accused was criminally responsible for doing the acts which I have found occurred in relation to each of the offences charged, before dealing with the question of any specific intention required for those offences, should that be necessary. [29]

    29. Hawkins v The Queen (1994) 179 CLR 500 at 517; [1994] HCA 28, R v Minani (2005) 63 NSWLR 490 at [32]; [2005] NSWCCA 226.

The accused’s mental illness

88. The defence of mental illness relied on by the accused raises the question whether the accused can be held criminally responsible for his acts, having regard to the evidence before the Court of the accused’s mental condition at the time of the relevant acts in November 2015.

89. For the reasons I have already given, I accept the evidence of both the forensic psychiatrists, which was largely consistent.

Prof Greenberg

90. Prof Greenberg provided three reports dated 4 July 2016, 20 February 2018 and 23 September 2018. He first assessed the accused on 2 July 2016 at MRRC Silverwater in relation to unfitness, which was the primary focus of the first report. In this report, Prof Greenberg noted that the accused’s past psychiatric history included his first admission at the age of 19 years to Woden Valley Hospital in Canberra, that he was diagnosed with schizophrenia and spent two years in total as an inpatient in that hospital. Numerous subsequent admissions to psychiatric units or hospitals were also reported. His drug and alcohol history included binge drinking large amounts of alcohol from the age of 18 years, smoking cannabis from the age of 13 and, by the age of 17, smoking cannabis daily. He reported decreasing cannabis use from 2012, when he started using crystal methamphetamine, or Ice. There was also reported use of other illegal substances including cocaine, ecstasy, LSD, OxyContin and heroin. In addition, Prof Greenberg also reviewed mental health records from a number of sources and concluded:

“[The accused] has a long psychiatric history of having a Chronic Schizophrenic Disorder with a turbulent course due to his non-compliance with psychiatric medication, persistent use of alcohol and illicit substances and itinerancy with homelessness leading to difficulties with psychiatric follow-up by the local mental health services. On a few occasions [he is] noted to have an affective (mood) component to his psychiatric illness, but it is documented that this mood instability seems to be in the context of his use of crystal methamphetamines and other illicit substances (Substance Use Disorder).”

91. For the purposes of his second report of 20 February 2018, Prof Greenberg did not have an opportunity of conducting a further psychiatric assessment of the accused and the report was based on his previous assessment and a review of documentation. At the previous assessment, Prof Greenberg had asked the accused about what happened on 6 November 2015. The accused told Prof Greenberg that:

“he [the accused] was walking around, ‘flirting with girls’ and ‘one brushed (him) off’. He states he ‘wasn’t happy’ and ‘stabbed the guy’. He then states, ‘It was a shocking thing to do’.

… [H]e remembers stealing a knife from Woolworths supermarket and putting it down his pants. He states the lady at the checkout counter said, ‘Go for it’. He states in retrospect this was probably in his head as he was hearing voices that day. He claims that he hadn’t had his injection of Risperdal antipsychotic medication for a period of approximately a month because the clinic had shut down. I asked [the accused] why he had stolen the knife and he states a girl had ‘brushed (him) off’ and he was ‘embarrassed’. …

… [After talking about the knife, the accused] alleged that he wanted to kill someone at that time but does not know why. He claims the victim came outside and he asked him for a cigarette. He reports [he] never met the victim before.… [He] claims that he stabbed the victim in the neck because he was ‘frustrated and angry’. [Prof Greenburg] asked [the accused] who he was angry and frustrated with and he responded, ‘My life, the way things were going, with women, my children’. [The accused] reports he then took a few steps back and then he ‘had a second go’ where he ‘sawed at his neck’ with a knife. Asked [the accused] why he was doing this and he stated he was ‘trying to kill him’. He alleges that at the time he said to the victim, ‘Sh sh, its over’. He claims the victim lay there and ‘someone called out for help’. [The accused] claims he took off with the victim cigarettes approximately 20 paces away. He claims he then rolled two cigarettes. He states ‘an Asian looking guy’ said, ‘I’ll take the blame and ran off’. … ”.

92. Prof Greenberg also recorded that the accused had reported hearing voices, auditory hallucinations, one to two weeks prior to the alleged offences and the voices were saying “Carry out crime”.

93. As to what happened in the DNA room, the accused told Prof Greenberg:

“They said some heavy things to me. You will spend a lot of time in jail. I felt I had to. I punch. I didn’t connect. She was another woman who wanted to throw me off”.

94. Prof Greenberg’s relevant conclusions included:

“[The accused] is suffering from a serious mental illness and overall gives a poor account of his alleged offences, often with evidence of psychotic symptoms. … [He] has a Chronic Schizophrenic Disorder which is a serious mental illness with a long history of residual psychotic symptoms (paranoid delusions, auditory hallucinations, erotomanic delusions, delusions of reference and thought disorder). I am of the view that he likely had these acute psychotic symptoms at the time of the alleged offences.”

95. On this basis, he was of the view that the accused suffered from a disease of the mind. In addition Prof Greenberg was of the opinion that, at the time of the alleged offences, the accused was labouring under a defect of reason caused by disease of the mind. The basis for this opinion included:

“[The accused] likely was delusional and had auditory hallucinations at the time of the alleged offences. He claimed he was walking around ‘flirting with girls’ and ‘one brushed’ him off. [He] has a long history of erotomanic delusions where he believes that he has a special relationship with various women such as the American singer Taylor Swift amongst other women such as “Angie”. … Erotomanic delusions involve false beliefs that the other person is in love with them. He claims he was offended (embarrassed) by this rejection (brush off). He has a documented history of being sexually inappropriate and aggressive when acutely unwell. … He claimed he was angry or frustrated because ‘this woman’ hadn’t joined him ‘in a meeting’. He claimed that he intended to kill the victim and when the victim knelt down in front of him, he heard him say, ‘It’s on Facebook’ (likely an auditory hallucination). He also claimed that the checkout lady at Woolworths supermarket told him to, ‘Go for it’ (likely an auditory hallucination). He also appeared to have delusional beliefs that an ‘Asian looking man’ said to him, ‘I’ll take the blame and ran off’ after he attacked the victim. He claimed the voices told him to, ‘Carry out crime’ (auditory hallucinations). He also reported paranoid beliefs that people were staring at him and cutting in front of his path. With regard to the alleged assault on the police officer, he reported paranoid beliefs that the police officer whom he allegedly assaulted was open ‘another woman who wanted to throw (him) off’.”

96. Prof Greenberg also drew support for his opinion that the accused was labouring under a defect of reason from the answers given by the accused during the ERISP. All of this material also provided, according to Prof Greenburg’s report, support for the opinion that the accused likely did know the nature and quality of his acts at the time of the alleged offences and that those acts were legally wrong.

97. However in relation to the question of whether the accused knew that his acts were morally wrong at the time of the alleged offences, Prof Greenberg was of the opinion that the accused did not. This was on the basis that:

“[The accused] was likely acting on his paranoid delusional belief psychotic system involving ‘Angie’. There likely were elements of anger and despair overlying these psychotic beliefs. For example, Detective Senior Constable Lindner alleges that he asked the accused what happened and the accused replied: ‘He was getting under my skin’…… ‘I sorted him out’. He also likely was hearing voices (auditory hallucination). He likely believed he was justified in his actions based on his psychotic belief system. During the police interview he claimed he reckons that the attack served the victim bloody right and serves both of them right.”

98. On 19 September 2018, Prof Greenberg conducted a further psychiatric assessment of the accused and provided an updated report on 23 September 2018. Prof Greenberg confirmed his previous opinions. In particular, concerning the issue of whether the accused knew that his acts were morally wrong, he maintained the view that the accused did not know that they were morally wrong at the time of the offences and wrote:

“Based on my most recent psychiatric assessment, I am of the opinion that [the accused] likely incorporated the victim, Mr Mottram into his delusional belief system. He has had a long-standing delusional belief about erotomanic beliefs. These romantic delusional beliefs have involved various women including women he named Ashley, Angie, and a famous singer, Taylor Swift. He likely had a delusional belief immediately before the incident that the victim had sexual intercourse with his girlfriend or wife Angie. I noted during the police interview on the 7 November 2015, several hours after the alleged offence, he mentions ‘a girl’ (Angie) brushing him off in the wrong way, out in front of the Ducati motorbike shop. I note that he stated that he took it the wrong way and that he was angry at the time. He also stated that it served them both bloody right. He also claimed that he had the knife with the intention of using it because of a girl (question 99) who was ‘just a street rat’ and was using her body language to annoy him and brush him off. He claimed that she was flashing her tits to a truck driver. He claimed he didn’t speak to her but then states when he spoke to her, [he] got into his mind walking next to her … so she brushed off (loosening of association of his thoughts and likely delusional thinking) (question 103 – 118). He told the police that Angie was his wife and that they had met through the love of bikes. He claimed that he met Angie every night and the last night was at his flat in Redfern Street. He claimed been married to her for 13 days (question 137 – 138). He also claimed that both he and Angie owned a ‘monster’ Ducati during this police interview.”

Dr Furst

99. Dr Richard Furst, consultant forensic psychiatrist, was retained on behalf of the accused to perform an assessment and provide reports on the accused’s mental state. Dr Furst assessed the accused on 6 April 2016 and provided a report dated 27 May 2016. This report dealt principally with fitness issues. In that report, Dr Furst gave his diagnosis as follows:

“[The accused] meets criteria for the following diagnoses:

• Schizoaffective Disorder

• Substance Use Disorder (cannabis, amphetamines)

The diagnosis of schizoaffective was made on the basis of reported and observed symptoms and signs of paranoid thinking, auditory hallucinations, mood disturbance, thought disorder and impaired psychosocial function over several years.

Schizoaffective Disorder is a chronic psychotic illness often characterised by delusional beliefs, auditory hallucinations, disorder of thought form, difficulty processing information, severe mood instability, and bizarre behaviour as a consequence of the illness. Frequent symptoms include paranoid beliefs, self-referential thinking, grandiose delusions and thought disorder.

Schizoaffective disorder is thought to be biologically driven because of abnormalities in dopamine transmission, differences seen in brain volume and genetic transmission. It usually runs a chronic course requiring hospitalisation during acute episodes and the need for longer term treatment with antipsychotic medication (tablets or injections).

…

[The accused] also has a lengthy history of substance dependence, periods of non-compliance with treatment and relatively poor insight into his psychotic illness.” (Emphasis in original)

100. Dr Furst provided a second report dated 4 July 2016, which addressed the particular issue of whether the accused had a mental illness defence available to him. Dr Furst repeated his diagnosis given in his first report and gave his opinion concerning the availability of a mental illness defence as follows:

“The available history and mental state features of [the accused] indicate he suffers from a chronic mental illness in the form of schizoaffective disorder, having paranoid delusions, delusions of reference, thought disorder, affective blunting, poverty of thought content and intermittent auditory hallucinations. I note that he has also experienced command hallucinations over recent months telling him to harm himself and others. His behaviour has been erratic when unwell.

Schizoaffective disorder has been recognised at law as a disease of the mind. He was probably mentally ill at the time of the alleged offence, as he was not taking his medication at the time, had an infatuation and told police he was married to Angie, representing apparent erotomanic delusions about a stranger working in a store in Darlinghurst. He was also blunted in affect and illogical in his responses to police.

There was no obvious rational reason for [the accused] to attack the victim and attempt to kill the victim, especially as the victim was a stranger. He appears to have linked the victim in some way to a woman [another stranger] who ‘brushed him off’ earlier in the day and also called the victim a ‘dog,’ likely evidence of delusional thinking.

In my opinion, [the accused] was aware of his actions but was unable to reason about the wrongfulness of his actions at the time of the alleged offence by virtue of this delusional thinking, being a defect of reason by virtue of his disease of the mind. …

…

[The accused’s] chronic psychotic illness and his paranoid illogical thinking at the time of the alleged offence are most likely reasons for his obviously excessive and violent actions on 06/11/15, as outlined above.

His relapse was most likely triggered by his non-compliance with medication at the time of the offence. He remained mentally disturbed the following day in police custody, allegedly assaulting a police officer without provocation. … Those factors make it likely he lacked the capacity to appreciate the wrongfulness of his actions at the time in question on 06/11/15 … ”.

101. In his report of 31 January 2017, Dr Furst stated that he remained of the opinions given in his early reports. Dr Furst’s last report of 1 September 2018 principally concerned the accused’s fitness in the light of the murder charge he faced as a result of the death of Mr Mottram in 2017. Nothing in that report was inconsistent with Dr Furst’s opinions in his earlier reports but it was noted that his “schizophrenic/schizoaffective illness … is treatment resistant”.

Mental illness defence – consideration

102. It can be noted that there is a slight difference in the diagnoses of the two psychiatrists. Prof Greenberg adopted the diagnosis of Chronic Schizophrenic Disorder but noted that “[o]n a few occasions [the accused is] noted to have an affective (mood) component to his psychiatric illness”, associated with Substance Use Disorder. Dr Furst opined that the diagnoses were Schizoaffective Disorder and Substance Abuse Disorder, although in his last report he did use the expression “schizophrenic/schizoaffective illness”.

103. In the light of the accused’s symptoms and psychiatric assessments, and the fact that neither psychiatrist drew a strict line between schizophrenic disorder, with an affective component, and schizoaffective disorder, or provided any reason to doubt that their conclusions would be the same whichever way the diagnoses were expressed, I am of the view that the slightly different terms used by each psychiatrist in their diagnoses are of no significance in this matter.

104. From the accused’s answers in the ERISP and the reasoning of Prof Greenberg, in particular, it is clear that the accused’s mental illness affected his reasoning and his capacity to reason in respect of his actions related to each of the offences of murder, causing grievous bodily harm, assaulting a police officer in execution of her duty and stealing the knife. Dr Furst’s evidence is consistent with, and supports, this conclusion.

105. Having regard to the evidence as a whole and, in particular, the unchallenged and consistent opinions of the psychiatrists, I am satisfied to the requisite standard that the accused did not know that what he did in cutting the deceased’s throat and severing his spinal cord, assaulting PCSC Hansen or in taking the knife from Woolworths without paying for it was wrong, as judged by everyday standards of reasonable people. This was so because his delusional and illogical paranoid thinking, including erotomanic delusions and auditory hallucinations, prevented him from reasoning about those matters with even a moderate degree of sense and composure. This defect of reasoning was the result of his “schizophrenic/schizoaffective illness”, which, I am satisfied, is a mental illness or disease of the mind.

106. Accordingly, the defence of mental illness has been made out in respect of each count. In these circumstances, it is not necessary to consider further whether any requisite intent has been established for any of the offences charged.

107. The appropriate verdict is, therefore, in each case the verdict available under s 22(1)(b) of the MHFP Act.

Additional remarks

108. Before announcing the orders of the Court it remains to acknowledge the death of Stephen Mottram as a human tragedy, rather than it being treated only as the object of a criminal proceeding by way of a special hearing. Mr Mottram’s death in such horrifying circumstances would have devastated those who loved him. They have the Court’s sympathy for their loss.

Verdicts and orders

109. The orders of the Court are:

1. In respect of count 1, a special verdict that the accused is not guilty on the ground of mental illness is returned.

2. In respect of count 2, a special verdict that the accused is not guilty on the ground of mental illness is returned.

3. In respect of count 3, a special verdict that the accused is not guilty on the ground of mental illness is returned.

4. In respect of count 4, a special verdict that the accused is not guilty on the ground of mental illness is returned.

5. Pursuant to s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused is to be returned to his present place of custody and detained there, or at such other place as is deemed appropriate according to law, until such time as he is released by due process of law.

6. The Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of these verdicts and orders.

**********

appendix to the reasons for Judgment in r v DRUMMOND-MURRAY

Quotations from the ERISP conducted with the accused on 7 November 2015

“Q21   Yes. All right. What can you tell me about what happened last night?

A   Just a freak of events - - -

Q22   Yeah.

A   - - - leading up to a stabbing. A girl brushed me off the wrong way out the front of Ducati shop and I took it the wrong way and took it out on that bloke.

Q23   When you say, The Ducati shop, you mean down on William Street there?

A   Yeah.

Q24   O.K. So a girl brushed you off?

A   Yeah - - -

Q25   And that - - -

A   - - - pretty severely.

Q26   - - - that’s caused you to become angry?

A   Yeah.

Q27   O.K. And you took it out on that bloke, do you mean, did, did you know that bloke?

A   No, not at all.

Q28   You don’t know him at all. O.K. Was there a disagreement between you and him over a cigarette, were you requesting a cigarette?

A   I would have liked a cigarette, yeah but - - -

Q29   O.K.

A   - - - not in this town.

Q30   [06:59:27] So when you say you took it out on that bloke, what do you mean?

A   Well I just decided to kill him.

Q31   So was that what you were trying to do, you were trying to kill him?

A   Yeah.

Q32   It, it was. O.K. And your attempts to kill him were by stabbing him in the throat?

A   Yeah.

Q33   O.K. Can I ask you, the knife where did that come from?

A   Woolworths.

Q34   Woolworths?

A   Yeah.

Q35   When did you buy that?

A   I petty theft it about 7 o’clock, 8 o’clock or something.

Q36   That night?

A   Yeah.

Q37   Which Woolworths?

A   Central.

Q38   Is that the one on the corner of George and Park Street?

A   It’s the new one opposite Central railway station.

Q39   I’m with you now, on Elizabeth Street there?

A   Yeah.

Q40   [07:00:34] O.K. No worries. Is, is this a normal thing for you to get angry, I mean obviously you’ve been brushed by a girl?

A   Well serves him bloody right I reckon.

Q41   Serves him right?

A   Yeah, serves the both of ‘em.

Q42   O.K. Yeah. No, fair enough. What makes you say that?

A   Just because I’ve had enough of the pair of ‘em.

Q43   When you say, The pair of them, you mean the girl in front of the Ducati shop - - -

A   Yeah.

Q44   - - - and the male at Foster House?

A   Yeah.

Q45   O.K. Are you, did they know each other?

A   I suppose they did.

Q46   O.K. All right. What makes you say that?

A   Well through my crash when I was at ….. ….. these things happen I guess.

Q47   All right. When you stole the knife what was the purpose, what made you feel the need to have a knife on you?

A   Just so I could get a beer or something, or lack of, just get my own way.

Q48   O.K. Do you know roughly what time you would have spoken to the girl down in front of the Ducati shop?

A   About 11.00 this morning.

Q49   At 11.00 this morning. All right. So it be fair to say you were angry for most of the day after that were you?

A   Yeah I was, yeah.

Q50   [07:02:28] All right. No worries. What else can you tell me about that incident?

A   Not much, she had a size C cup ….. ….. not much else I could say.

Q51   All right. How, you mentioned to the custody manager earlier that you’ve suffered from schizophrenia?

A   Yes.

Q52   Are you medicated for that at the moment?

A   No.

Q53   No. When did you stop taking your medication?

A   When I got out of gaol.

Q54   When was that?

A   About a month ago, 2 months ago.

Q55   So you’ve been off, off it for quite some time?

A   Yeah.

Q56   Do you know what you were taking?

A   I was taking Zyprexa.

Q57   Zyprexa is it?

A   Yeah.

Q58   It’s a Z is it or - - -

A   Yeah Z, Z-Y-P-R-E-X-A.

Q59   All right. When you’re taking the medication does that alleviate the symptoms of your schizophrenia - - -

A   No, not really.

Q60   [07:04:03] - - - does that help?

A   Not really.

Q61   No. all right. What about when you’re off the medication?

A   Yeah, I feel much better.

Q62   You feel better, right.

A   Yeah.

Q63   I don’t mean to sound rude but do you self medicate at all, do you take anything else?

A   No I don’t.

Q64   No. No alcohol, no, no drugs, you mentioned you don’t you do drugs earlier so?

A   I don’t do drugs but I do alcohol.

Q65   O.K.

A   Maybe a bit of Ice.

Q66   Maybe a bit of Ice. O.K. When was the last time you would have used Ice?

A   About a week ago.

Q67   About a week ago. O.K. What about alcohol?

A   Just last night actually.

Q68   Last night. A beer, I think you told me one beer?

A   A bottle of wine and a beer.

Q69   Bottle of wine and a beer. Where would that have been mate?

A   It wasn’t at any place, it was just on the street, I picked it up off the ground.

Q70   [07:05:00] O.K. All right. No worries. Do you know roughly what time?

A   No I - - -

Q71   No.

A   - - - haven’t got the foggiest.

Q72   In, in terms of the time before the incident at, at Foster House, how long since you had the drinks do you think until that happened?

A   About 3 hours.

Q73   Three hours. O.K. You said when you were booked into custody that you had only stopped taking your medication on Thursday, so 2 days ago and now you’ve mentioned that it was 1 or 2 months ago, is that, which one is right?

A   Probably the second one.

Q74   The, the got out of gaol - - -

A   Yeah.

Q75   - - - one? O.K. No worries. What made you get off the medication?

A   I can’t tell you at the moment.

Q76   No. Fair enough. Yeah. You mentioned to me earlier that when you stabbed this, this person on the, on the back, at the back of Foster House there you wanted to kill him. When did you formulate that idea, what, what, what brought that on?

A   After he got up talking to the old man like a dog I realised he’s just a dog and I’m gunna kill him.

Q77   The, the old man is that Robert?

A   Yeah, I think so.

Q78   Robert, Robert Caldwell?

A   Yeah.

Q79   And you didn’t like the way he spoke to, to Robert?

A   No.

Q80   [07:06:56] All right. Do you remember what he said?

A   No, not really but it wasn’t very nice.

Q81   All right. Mate, you don’t have to answer this but is, is that something that you feel frequently, need to kill someone?

A   Yeah, yeah.

Q82   Yeah. Is that, is that something that you would relate back to your schizophrenia or is this just some part of your - - -

A   Yeah, yeah, my drug induced schizophrenia.

Q83   The drug induced schizophrenia?

A   Yeah, which is separate from the schizophrenia.

Q84   All right. So what’s the drug induced schizophrenia, is that from Ice?

A   No, that’s from marijuana and cocaine and - - -

Q85   O.K. And you don’t do those anymore?

A   No.

Q86   All right. So is that something that you developed some time ago was it?

A   Yeah.

Q87   Does that stay with you or does that go and only comes back when you cocaine or cannabis?

A   It comes and goes.

Q88   Comes and goes. And what about present time, have you …..

A   I managed to, to manage it.

Q89   Yeah. O.K. So you, you formulate or you, you decided to kill this bloke after he spoke to Robert Caldwell and you didn’t like the way he spoke to Robert Caldwell?

A   Yeah.

Q90   [07:08:25] O.K. Was there an exchange about a cigarette or - - -

A   Yeah, he said he didn’t have the durries.

Q91   He didn’t have any?

A   Yeah.

Q92   O.K. So you asked him for a cigarette?

A   Yeah.

Q93   O.K. Did you want a cigarette or were you just - - -

A   No I didn’t want one.

Q94   You didn’t. so was that just a, you asked him just so that you could get him in a position that you wanted to or - - -

A   No, not really just - - -

Q95   No because you had cigarettes on you in your property when, when you were arrested?

A   I wish, I had bumpers.

Q96   O.K. Two, yeah.

A   Yeah.

Q97   All right. What, when you said the knife gave you a sense of power, well you could get what you want - - -

A   Yeah.

Q98   - - - was that, is that something that you, you’ve, you, you took it with the intention of using it?

A   Yeah.

Q99   Yeah. All right.

A   ‘Cause of the girl.

Q100   [07:09:26] Because of the girl?

A   Yeah.

Q101   O.K. Do you know what, roughly what time you would have taken the, the knife from the supermarket?

A   About 9.00, 8 o’clock.

Q102   8.00 or 9 o’clock. O.K. Anything you want, like to ask?

DETECTIVE SENIOR CONSTABLE BEDFORD

Q103   Just while we’re on the topic, the girl, who, who is this girl that you’re talking about?

A   Just a street rat, couldn’t really give you much more of a description than jeans and a t-shirt.

Q104   O.K. And is it someone that you’ve seen previously, do you know her or was it just someone that you’ve met today?

A   It’s just someone I met today.

Q105   O.K.

A   Just rattin’ around and being real scruffy person.

Q106   What do you mean by that?

A   Just using her body language to annoy me.

Q107   O.K. What, what exactly did she do mate?

A   Just brushed me off.

Q108   O.K. Did you, did you try and talk to this, this lady?

A   No, not really, no, yeah.

Q109   And how did she brush you off?

A   Just by flashing her tits to the truck driver.

Q110   [07:10:37] What’s that, sorry?

A   Just by flashing her tits.

Q111   To a?

A   To another driver.

Q112   O.K. So - - -

A   They all seen her do it to me.

Q113   Was this a, a, do you think it was a prostitute.

A   No, wasn’t a prostitute.

Q114   No. O.K. How - - -

A   Maybe she should be.

Q115   How long were talking to this lady?

A   About 2 minutes.

Q116   Yeah. And what did you speak - - -

A   Or 2 seconds.

Q117   What did - - -

A   I didn’t speak to her, I just, when I say I spoke to her, I got into her mind by walking next to her - - -

Q118   O.K.

A   - - - so she brushed me off.

Q119   O.K. All right. And, and how did she brush you off, so, so she flashed her breasts to?

A   To a driver.

Q120   [07:11:25] Yeah. And how did that make you feel?

A   Desperate and lonely.

Q121   O.K. So what did you do after that?

A   I walked around mostly, I went and saw Angie.

Q122   Yeah. And who is Angie?

A   Angie is my wife.

Q123   O.K. And where does Angie live?

A   She lives in Kings Cross.

Q124   Yeah. O.K. Do you know her address?

A   No.

Q125   No. Whereabouts in Kings Cross?

A   The far end.

Q126   Far end from William Street?

A   Yeah.

Q127   So towards the police station?

A   Yeah, around the police station.

Q128   O.K. Do you know the name of the street?

A   No, I haven’t been to the house yet.

Q129   O.K. So how did you meet Angie?

A   Through our love of bikes.

Q130   [07:12:15] No, O.K. But tonight, how did you meet up with Angie or last night, sorry?

A   Yeah, I meet up with every night but, where do you want me to go with that?

Q131   But whereabouts did you meet Angie last night?

A   At my flat.

Q132   At your flat?

A   Yeah.

Q133   Well where’s that?

A   4/11 Redfern.

Q134   4/11 Redfern Street?

A   4/11 Young Street or Morehead Street, you never know.

Q135   O.K. Do you know Angie’s surname?

A   No.

Q136   No. And Angie is your wife?

A   Yes.

Q137   O.K. How long have you been married for?

A   About 13 days now.

Q138   O.K. And did you have a ceremony?

A   I had a little one, yeah, at Redfern.

Q139   O.K. Was there a celebrant?

A   No, there was just some boys and couple of chicks.

Q140   [07:13:20] O.K. So it’s not, it’s not registered?

A   No.

Q141   O.K.

A   But it works.

Q142   O.K. And how long have you known Angie for?

A   Thirteen days.

…

Q144   O.K. And why did you stop taking your medication?

A   Because I feel much better off it.

Q145   O.K. How does it make you feel when you’re not taking it?

A   Free as a bird, normal as I was a kid and - - -

Q146   Yeah. O.K.

A   Yeah.

Q147   All right. And you do you get the symptoms when you’re not taking it?

A   Yeah I get symptoms.

Q148   Is there any side effects or anything like that?

A   Yeah, a bit of rough sleep and - - -

Q149   Yeah. Is there anything else?

A   No.

Q150   [07:14:46] No. Just, just rough sleep?

A   Yeah.

Q151   O.K. And who is your, who is your doctor?

A   Dr Foo.

Q152   Dr Foo?

A   Yeah.

Q153   O.K. Where’s, where’s he work?

A   He’s at Woolloomooloo at the moment.

Q154   Yeah. And when was the last time you saw him?

A   Before I went into gaol.

Q155   Yeah. And how long ago was that?

A   A year, 2 years.

Q156   O.K. That long ago?

A   Yeah, a while ago.

Q157   Right. And is Dr Foo still at Woolloomooloo?

A   Yeah, I think so, I went in there to see him just yesterday.

Q158   Yeah.

A   Yeah.

Q159   And what did he, what did you see him about?

A   Just to say hi, just catch up.

Q160   [07:15:30] O.K. Did he give you any medication at that, at that time?

A   No.

Q161   O.K. So it was just a, just a check up?

A   Yeah.

Q162   O.K. O.K. When you mentioned that later this evening that you stole the knife from, from Woolies at Central - - -

A   Yeah.

Q163   Yeah. You mentioned, So I could get a beer?

A   Yeah.

Q164   What do you mean by that?

A   Well they won’t sell me any beer.

Q165   They wouldn’t, what was that, sorry?

A   They won’t give me any beer ….. I dunno, just, I just sitting there wanted a beer and you get beer off the street if you got a weapon or something.

Q166   So you’re gonna rob someone, was that the plan or - - -

A   Yeah.

Q167   Yeah. O.K. That’s all for me at the moment.

DETECTIVE SENIOR CONSTABLE LINDNER

Q168   Just one last question from me, you’ve, you’ve been very upfront with us - - -

A   Yeah.

Q169   - - - appreciate that, what’s, what’s your motivation for being so honest with us?

A   I just ….. ….. I'm a liar.

Q170   [07:17:07] O.K. All right. Is there anything you want to, anything else you want to say or - - -

A   No.

Q171   No. Anything you want to ask of us?

A   No, not at all.

Q172   O.K.

A   Can I, can I get another coffee?

Q173   Yeah, course you can mate, of course.

DETECTIVE SENIOR CONSTABLE BEDFORD

Q174   Just quickly to finish off this, so just to clarify when you, how long have you been staying at Foster House for?

A   Two days.

Q175   Just the 2 days?

A   Yeah.

Q176   O.K. When you went initially to Foster House, when you first stayed there, that first night - - -

A   Yeah.

Q177   - - - did you have to fill out any paper work or anything like that?

A   No, the woman filled it out.

Q178   O.K. And I’ll bring you back to tonight, what you said, that you didn’t like the way that the, that the guy spoke to the old man - - -

A   Yeah.

Q179   - - - how did he speak to him?

A   He just subtlety and dog coherently.

Q180   [07:18:19] Yeah, like what, give me, give me an example if - - -

A   I can’t give you an example - - -

Q181   O.K.

A   - - - I’m not an expert on this sort of - - -

Q182   No, no, if, O.K. Was he, was he yelling at the old man?

A   Yes.

Q183   Yeah. And do you remember what he was saying exactly?

A   No I don’t remember exactly.

Q184   Yeah. Do you know roughly what it was about?

A   No.

Q185   O.K. And how long was he talking badly towards the man?

A   About 2 minutes.

Q186   O.K. And was, was it at that point that you decided to kill him?

A   Yeah I think so.

Q187   O.K. Now I’ve, I’ve reviewed some footage from the incident and during that footage it looks like that you’ve thrown a knife inside the back gate prior to the incident.

A   Yeah.

Q188   - - - is that correct?

A   Yeah.

Q189   And why did you do that?

A   ‘Cause I was gunna hunt down the girl but I can’t be bothered so I just killed the guy.

Q190   [07:19:30] O.K.

DETECTIVE SENIOR CONSTABLE LINDNER

Q191   Mate if there’s nothing else you want to say I’ll go and get the senior officer, he’ll just come in and have a quick talk to you about how this interview was conducted, all right?

A   Yeah.

Q192   And that will only take a second sir, just, Detective Senior Constable Lindner leaves the room.

DETECTIVE SENIOR CONSTABLE BEDFORD

Q193   Just to let you know mate it’s still recording O.K.

A   Yes.

Q194   All right.

A   Hello Angie, how you going?

Q195   Pardon?

A   I’m just talking to the camera right now

Q196   Where did you and Angie meet?

A   We, we met through chance, a lightning storm.

Q197   Really?

A   Mmm.

Q198   You said you have a love of bikes?

A   Yeah we do.

Q199   Yeah, what sort of bikes?

A   Triumphs and BMW’s and - - -

Q200   [07:20:35] Is that why you got your tattoos?

A   Yeah, ‘cause of the bikes, yeah.

Q201   Yeah. How long you been into bikes for?

A   About, on and off 10 years, 7 years.

Q202   Have you ever owned a bike?

A   No, not a good one.

Q203   No.

A   Like Angie’s bike.

Q204   Where, what bike does Angie have?

A   A monster.

Q205   A monster?

A   Yeah.

Q206   Is that the brand, I don’t know much about bikes.

A   It’s a monster Ducati.

Q207   O.K. Is that hers, does she own it?

A   We both own it.

…”

**********

Endnotes

Decision last updated: 16 May 2019