R v Fineanganafo (No 1)

[2024] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fineanganafo (No 1) [2024] NSWSC 1400

Hearing dates:

4 November 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Common Law - Criminal

Before:

Davies J

Decision:

In relation to each count on the indictment, I return a special verdict of act proven but not criminally responsible.

Catchwords:

MENTAL HEALTH – criminal proceedings – defence of mental illness – where the accused was charged with six offences, including the murder of Steven Tougher - where the parties agreed that the proposed evidence established a defence of mental health impairment –– enquiry under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 - whether the proposed evidence established a defence of mental health impairment – where there was no doubt the accused committed the physical acts – where two psychiatrists agreed that the accused suffered from a mental health impairment, namely schizophrenia – where both experts agreed that the accused did not know that this acts were wrong – where there was nothing to cast doubt on the opinions of the psychiat-rists – accepted that the accused suffered from a mental health impairment and that as a result he did not know that his acts were wrong – special verdict of act proven but not criminally responsible returned

Legislation Cited:

Crimes Act 1900 (NSW) ss 18, 23A, 33B, 117, 195

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Evidence Act 1995 (NSW) s 191

Mental Health Act 2007 (NSW) s 14

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 14, 28, 31, 33, 34

Cases Cited:

Da-Pra v R; R v Da-Pra [2014] NSWCCA 211

R v Iusi Afele [2014] NSWSC 366

R v Jackson [2021] NSWSC 1404

R v Siemek (No. 1) [2021] NSWSC 1292

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Crown
Jordan James Fineanganofo (Accused)

Representation:

Counsel:
K McKay SC & B Allison (Crown)
A Karim (Accused)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Sydney Criminal Law Specialists (Accused)

File Number(s):

2023/120648

Publication restriction:

Nil

JUDGMENT

1. The accused is charged with six offences committed on 13 and 14 April 2023. The offences charged are these:

That the accused Jordan James Fineanganofo:

Count 1: on 13 April 2023, at Campbelltown intimidated Lavinia Simpson with the intention of causing her to fear physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Count 2: on 13 April 2023, at Campbelltown intentionally damaged a Mitsubishi Eclipse Cross, NSW registration CY80NH, the property of Jamie Howe contrary to s 195(1)(a) of the Crimes Act 1900 (NSW).

Count 3: on 14 April 2023, at Ingleburn used an offensive weapon with intent to commit an indictable offence namely intimidation contrary to s 33B(1)(a) of the Crimes Act 1900.

Count 4: on 14 April 2023, at Ingleburn stole a Billabong branded cooler bag containing three two-way radios, the property of Phillip Appleyard contrary to s 117 of the Crimes Act.

Count 5: on 14 April 2023, at Raby used an offensive weapon with intent to commit an indictable offence namely intimidation, contrary to s 33B(1)(a) of the Crimes Act.

Count 6: on 14 April 2023, at Campbelltown murdered Steven Tougher contrary to s 18(1)(a) of the Crimes Act.

2. The accused was committed for trial to this Court on all the charges because of the murder charge. On 5 April 2024 he was arraigned before Wilson J. He pleaded not guilty to all counts and the matter was fixed for trial by jury on 4 November 2024 to be presided over by me.

3. At directions hearings leading up to the trial both Wilson J, then the Criminal List Judge, and I were informed that the accused suffered from mental health issues. Arrangements were made for pre-trial issues relating to the accused’s mental health issues to be dealt with in the first week set aside for the trial. Psychiatric reports were to be obtained by both parties and consideration was to be given whether, at least in relation to the charge of murder, reliance would be placed by the accused on s 23A of the Crimes Act 1900 (NSW) to demonstrate substantial impairment or whether an enquiry under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) would be sought in relation to all charges.

4. On 4 November 2024 I was informed that the parties agreed, in terms of s 31, that the proposed evidence established a defence of mental health impairment. An application was made to the Court under that section for an enquiry to be held before a jury was empanelled. This judgment is a consideration of the evidence to ascertain whether the defence of mental health impairment is established. It needs to be stressed that this is not a judge-alone trial. If I do not find that the defence of mental health impairment is established, the matter will proceed to a trial before a jury. If I find that the defence of mental health impairment is established then I may enter a special verdict of acts proven but that the accused is not criminally responsible.

Legislation

5. The Act relevantly provides:

28 Defence of mental health impairment or cognitive impairment

(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person -

(a) did not know the nature and quality of the act, or

(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4) In this Part, act includes -

(a) an omission, and

(b) a series of acts or omissions.

…

31 Special verdict where defendant and prosecutor agree on impairment

The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if -

(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

(b) the defendant is represented by an Australian legal practitioner, and

(c) the court, after considering that evidence, is satisfied that the defence is so established.

…

33 Effect of special verdict

(1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders -

(a) an order that the defendant be remanded in custody until a further order is made under this section,

(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,

(c) an order for the unconditional or conditional release of the defendant from custody,

(d) other orders that the court thinks appropriate.

(2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.

(3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release.

Note -

A person for whom a special verdict of act proven but not criminally responsible is entered is a forensic patient unless unconditionally released and is to be dealt with under Part 5.

34 Referral of defendant to Tribunal

The court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned or entered and an order is not made for the unconditional release of the defendant.

6. Section 4 of the Act defines “Mental health impairment” as follows:

4 Mental health impairment

(1) For the purposes of this Act, a person has a mental health impairment if -

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons -

(a) an anxiety disorder,

(b) an affective disorder, including clinical depression and bipolar disorder,

(c) a psychotic disorder,

(d) a substance induced mental disorder that is not temporary.

(3) A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by -

(a) the temporary effect of ingesting a substance, or

(b) a substance use disorder.

Legal principles

7. The procedure in relation to an enquiry under s 31 was discussed by Johnson J in R v Jackson [2021] NSWSC 1404 as follows:

[7] A hearing under s.31 of the Act is not a trial. No trial date has been fixed. Accordingly, there is no need for the Accused to elect to be tried by Judge alone under s.132 Criminal Procedure Act 1986: R v Sands [2021] NSWSC 1325 at [3]. The s.31(c) procedure has been described as an “evidentiary inquiry”: R v Gough [2021] NSWDC 180 at [13].

[8] If the Court is satisfied that the defence of mental health impairment is established for the purpose of s.31(c) of the Act, the Court is required to enter a special verdict under s.31 of “act proven but not criminally responsible”. The Court must then consider what consequential orders should be made under ss.33 and 34 of the Act.

[9] In the absence of s.31, a criminal trial would take place for the purpose of determining whether the defence of mental health impairment had been established. A criminal trial is conducted as adversarial litigation where an accusatorial process is involved, in which the prosecutor bears the onus of proving the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In this case, if the matter proceeded to trial, it would be for the Crown to prove that the Accused committed the act in question and the other elements of the crime of murder (apart from the question of intention) and it would be for the Accused to establish, on the balance of probabilities, the defence of mental health impairment under s.28(2) of the Act.

[10] Section 31 is a statutory modification of these usual procedures and permits the Court to consider the agreed position of the parties without the need for a criminal trial. In R v Siemek (No. 1) [2021] NSWSC 1292, reference was made (at [19]) to the origin of s.31 as explained in the second reading speech:

“In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 ‘aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found’ (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added ‘extra safeguards’ in that ‘the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established’. This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, ‘People With Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibility and Consequences’, 2013, paragraphs 3.159-3.160.”

[11] The operation of s.31 has been considered in cases which had been fixed for trial and where, following an election for Judge-alone trial, the trial proceeded but culminated in a special verdict by way of s.31: R v Tonga [2021] NSWSC 1064; R v Siemek (No. 1). In those cases some consideration was given to the interaction between s.31 of the Act and ss.132 and 133 Criminal Procedure Act 1986.

[12] However, that analysis has no application to the present case where s.31 has been engaged before any trial date has been fixed, let alone any election for Judge-alone trial.

[13] It remains the case, however, that the Court is required to provide reasons for a decision to return a special verdict under s.31. In R v Siemek (No.  1), the Court said in this respect at [21] and [22]:

“21 However, the Court’s decision fulfills another important purpose. It provides reasons for the verdict of the Court announced in open court on a serious charge where there is a strong public interest in the community understanding the basis upon which the verdict has been returned. The provision of reasons for a decision is an expression of the open justice principle. The importance of a public explanation for final decisions has long been recognised: Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [54]-[58].

22 In addition, where the Court returns a special verdict of act proven but not criminally responsible under s.31 MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s.33 in circumstances where the Court must refer an accused person to the Mental Health Review Tribunal under s.34 MHCIFP Act if such a special verdict has been returned. The reasons of the Court for reaching the verdict, and for making consequential orders, serve an important role in the discharge by the Mental Health Review Tribunal of its functions with respect to a person in relation to whom such a special verdict has been returned: cf Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 at [17] (concerning the giving of reasons where the parties signed consent orders in civil proceedings under rule 36.1A Uniform Civil Procedure Rules 2005).”

The offending

8. For the purposes of this enquiry, the accused, on the advice of his lawyer, has agreed with the Crown upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):

9. Jordan Fineanganofo (the accused) was born on 17 May 2001 in Sydney.

10. The accused is the youngest son of Vika and Toketa Fineanganofo.

11. The accused resides with his parents in the family home at 49 Halifax Way, Raby. Also living at the address are the accused’s siblings, John-Victor, Jacquelin, and her husband, Peato Halahifi.

13 April 2023 – Bunnings Warehouse, Campbelltown

12. Shortly after noon on 13 April 2023, the accused drove away from his home address in Toketa Fineanganofo’s blue Honda Jazz, NSW registration AZL57N (“the blue Honda Jazz”). He drove to Bunnings Warehouse located on Blaxland Road, Campbelltown and parked in the underground carpark.

13. The accused exited the car and went into the store. He had a knife in his front right pants pocket.

14. Inside the store, the accused purchased a length of rope.

Count 1

15. After purchasing the rope, he walked into a nearby elevator that allows access to the underground carpark. Initially the accused was alone in the elevator. However, as the elevator doors began to close, Lavinia Simpson (a customer of Bunnings) tried to enter the lift whilst pushing her 5-month-old son in a pram.

16. As Ms Simpson approached the lift the accused blocked her from entering it by deliberately standing in the centre of the doorway.

17. Ms Simpson looked at the accused and noticed that he had a blank look on his face. The accused said “get the fuck out”.

18. Ms Simpson tried to manoeuvre the pram around the accused at which point the accused said “get the fuck out” and pushed the front of the pram sideways so that it was no longer facing the lift.

19. The accused said “get the fuck out, I’m taking this lift” at which point his facial expression went from blank to angry.

20. Ms Simpson took a few steps backwards at which point the accused closed the lift door and travelled down to the underground car park.

21. As the lift was going down the accused laughed and stuck his middle finger up at Ms Simpson who could still see him through the glass doors of the lift.

22. Ms Simpson went back into the store and reported the incident to the Bunnings Store Manager, Debbie Easton. Ms Simpson was scared and needed to be chaperoned to her car.

Count 2

23. After the incident involving Ms Simpson, the accused walked back towards the blue Honda Jazz. As he approached it, he took out his knife from his front right pants pocket and caused damage to a parked Mitsubishi car with NSW registration CY80NH.

24. The car belongs to woman by the name of Jamie Howe. At the time, Ms Howe was inside the nursery area of Bunnings with her mother and two young children.

25. The accused damaged the car by deliberately running the blade of his knife along the boot and driver’s side doors so as to cause a number of long deep scratches to each of the panels.

26. Later, Ms Howe returned to the car park and immediately noticed the damage. She reported the matter to Ms Easton.

27. Ms Easton reported the incidents to police later that day.

14 April 2023 – 7 Eleven, Ingleburn

Count 3

28. Shortly before 4am on 14 April 2023, the accused drove away from his home address in the blue Honda Jazz.

29. At about 4:20am Phillip Appleyard drove away from his home address in a white work utility car bearing NSW registration BGF39R. He drove to the 7 Eleven Service Station, Ingleburn.

30. During this trip, whilst driving along Ben Lomond Road, Minto, the accused drove up behind Mr Appleyard and began flashing him with his headlights.

31. The accused then followed Mr Appleyard’s car all the way to 7 Eleven, Ingleburn. As he followed Mr Appleyard, the accused beeped his horn and repeatedly flashed his headlights.

32. Mr Appleyard drove into 7 Eleven, Ingleburn and parked his car at bowser #1. This is the bowser nearest the night counter window at the service station.

33. The accused followed closely behind Mr Appleyard and parked the Blue Honda Jazz at bowser #3, directly behind Mr Appleyard’s car.

34. At about 4:44am Mr Appleyard got out of his car and walked towards the entry doors of the 7 Eleven. At about the same time, the accused got out of the blue Honda Jazz and walked towards Mr Appleyard. The accused was armed with a knife in his right hand.

35. The accused walked towards Mr Appleyard with the knife in his right hand and pushed Mr Appleyard in the chest with his left hand. Mr Appleyard said “Fuck off, don’t touch me. I don’t even know you!”. The accused said “You’re a man. You’re a man”. Mr Appleyard then noticed that the accused was armed with a knife and backed away from the accused.

36. The accused pursued Mr Appleyard at a walk. He repeatedly said to Mr Appleyard “You’re a man. You’re a man”. Mr Appleyard continued to retreat away from the accused who was still armed with the knife. At some point the accused spun the knife around in his hand and put it into his right pants pocket.

37. Mr Appleyard eventually decided to run away from the accused. By this point he had already been pursued out of the service station and across the road. Mr Appleyard ran behind a nearby school and called the police.

38. When Mr Appleyard ran away, the accused stopped pursuing him and walked back towards the service station.

39. As he walked back into the grounds of the service station, the accused struck a car that was stopped at the service station exit on Oxford Street. Driving the car was a male by the name of John Ince. Mr Ince was preparing to exit the service station when the accused struck his car.

40. The accused then opened the front passenger side door of Mr Ince’s car. Mr Ince asked the accused three times, “What’s up mate?”. The accused didn’t answer but laughed in what Mr Ince describes as a “sadistic laugh”. The accused then leaned into Mr Ince’s car at which point Mr Ince, fearing for his safety, put his foot on the accelerator and drove away from the area.

Count 4

41. The accused then walked towards the bowsers. At about 4:49am the accused walked up to Mr Appleyard’s car that was still parked at bowser #1. He opened the driver’s door and stole Mr Appleyard’s “Billabong” brand cooler bag that was on the front passenger seat. The bag contained 3 two-way radios and some bills addressed to Mr Appleyard.

42. The accused then got back into the driver’s seat of the blue Honda Jazz and drove towards the service station exit on Cumberland Road. As he approached the exit, another car entered the service station from Cumberland Road. The driver of that car was a man by the name of Jamie Ross.

43. As he passed the blue Honda Jazz, Mr Ross met eyes with the accused and they looked at each other. The accused yelled “Fuck you” to Mr Ross. Mr Ross drove into the service station and parked at bowser #6. Mr Ross got out of his car and looked towards the accused. The accused was looking at Mr Ross and said “You wanna fight”. Mr Ross said “Nah man, it’s all good, have a nice day”.

44. Mr Ross then walked towards the front doors of the 7 Eleven at which point the accused reversed the blue Honda Jazz a few metres before coming to a stop just before the exit onto Cumberland Road.

45. The accused then got out of the Blue Honda Jazz and walked towards the front doors of the 7 Eleven. By the time he arrived at the front doors, Mr Ross was already inside the store. Upon Mr Ross entering the store, the 7 Eleven attendant locked the front doors to prevent the accused from entering.

46. The accused banged on the front door and mouthed something that could not be heard by Mr Ross. The accused grinned and nodded as he did this. Mr Ross described the accused as having “an angry smirk on his face”.

47. The accused was at the front door for slightly less than two minutes before he walked back to the blue Honda Jazz, got inside and drove onto Cumberland Road, initially heading north-east and away from the service station.

14 April 2023 – Spitfire Drive, Raby

Count 5

48. On 14 April 2023, Mr Jaspreet Singh was working as a delivery driver for Nonna’s Bakery. He was driving a white Ford Transit Van with NSW registration EBY11U.

49. Shortly after 5am, the accused drove the blue Honda Jazz up behind Mr Singh’s van on St Andrews Road, Raby. The accused began following Mr Singh’s van, repeatedly flashing his high beam lights at him.

50. Mr Singh turned left onto Spitfire Drive, Raby. Not knowing why the accused was flashing his lights at him, Mr Singh assumed there was an issue with his vehicle so he pulled over to the side of the road on Spitfire Drive, at which point the accused also pulled over to the side of the road.

51. Mr Singh got out of his car and inspected it to see if anything was wrong. The accused walked towards Mr Singh. The accused was holding a knife in his right hand which he had held up behind his back, concealing it from Mr Singh’s line of sight. As he walked towards Mr Singh, the accused said “Are you all right”? Mr Singh responded, “Yes”.

52. The accused continued walking towards Mr Singh until he was no more than one metre away from Mr Singh at which time the accused raised the knife above his head and brought it down towards Mr Singh.

53. Mr Singh saw the accused lift the knife above his head and as the accused brought the knife down Mr Singh pushed the accused to the chest.

54. The knife struck Mr Singh on the left side of his chest piercing the puffer jacket that he was wearing but not the jumper underneath. The knife did not make contact with Mr Singh’s skin.

55. Mr Singh fell backwards onto the road.

56. The accused then got into Mr Singh’s van and sat in the driver’s seat. The accused then picked up Mr Singh’s iPhone. Mr Singh saw this and pleaded with the accused “Please don’t do this. You can get what you want but please give my phone back”.

57. The accused looked and Mr Singh, smiled and put Mr Singh’s iPhone down. He then got out of the van and walked towards Mr Singh. Mr Singh backed up. The accused got within about two metres of Mr Singh at which time he held the knife out towards Mr Singh and waved it around. Mr Singh describes the accused as having a “calm” look on his face while he waved the knife around. Mr Singh thought he was going to be stabbed. The accused did not say anything while he was doing this.

58. The accused then stopped walking towards Mr Singh and instead walked to the blue Honda Jazz and got inside it. Mr Singh ran to his van, got inside it and drove away. The accused did not follow Mr Singh any further.

59. The accused drove in a southerly direction on Spitfire Drive before turning right onto Sunderland Drive, Raby at about 5:09am.

60. Between about 5:10 and 5:15am the accused stopped the blue Honda Jazz at a red light at the intersection of Raby Road and Spitfire Drive. When the light went green, the accused remained stationary for some time. The cars behind the accused repeatedly beeped their horns in an effort to get the accused to move forwards. Eventually, traffic manoeuvred around the accused.

61. The accused then began following one of the cars that had manoeuvred around the blue Honda Jazz. The accused flashed his lights at the car and beeped his horn. He followed it along Campbelltown Road until they reached the intersection of Campbelltown Road and Rose Payten Drive, Minto. When they reached the intersection, the other car turned right onto Rose Payten Drive and the accused continued in a southerly direction along Campbelltown Drive.

14 April 2023 – McDonalds Carpark, Queen Street, Campbelltown

Count 6

62. Steven Tougher (the deceased) was a Paramedic employed by NSW Ambulance.

63. At about 7:45pm on 13 April 2023 the deceased commenced a shift with his rostered partner, Nateisha Allison at Camden Ambulance Station.

64. The deceased was the driver for the shift and Ms Allison was the treating paramedic. They attended various jobs throughout the night driving marked Ambulance 1810.

65. At about 5:11am the deceased drove the Ambulance into the Campbeltown McDonalds carpark located on Queen Street, Campbelltown.

66. Ms Allison and the deceased went into the McDonalds Restaurant and they each placed an order for food. They each received their orders and returned to the Ambulance at about 5:21am.

67. Ms Allison sat in the front passenger seat, closed the door behind her and began eating her food.

68. The deceased placed his food on the front driver’s seat and stood outside the Ambulance within the front driver’s door which was ajar. He then began eating his food.

69. At 5:26am, the accused drove into the McDonalds carpark on Queen Street in Campbelltown. He then parked the blue Honda Jazz in the parking space closest to the driver’s side of the Ambulance. As the accused manoeuvred into the parking space he beeped his horn at the deceased.

70. After bringing the blue Honda Jazz to a stop, the accused got out and went to the rear of the car at which time he opened the boot. He then went to the passenger side of the car and opened the rear passenger side door. The accused was armed with a knife.

71. The accused then approached the deceased and without saying anything, drew his attention towards him. The accused then began stabbing the deceased with the knife.

72. The deceased said, “What are you doing?” and “Stop stabbing me mate”. The deceased tried to defend himself by pushing the accused away but he could not. The deceased could not do anything to escape because he was trapped between the Ambulance door and the accused.

73. The accused stabbed the deceased no less than five times before the deceased fell to the ground.

74. The accused then continued stabbing the deceased whilst he lay prone on the ground.

75. Ms Allison called for assistance over the Ambulance radio.

76. At one point Ms Allison tried to pull at the accused in an effort to assist the deceased. Her efforts were ineffectual so she ran back into the McDonalds to seek help.

77. At about this time, a man by the name of James Arthur ran over to the accused and tried to help the deceased. He yelled “Stop, Stop” as loud as he could. He then kicked the accused a number of times in an effort to get him to stop attacking the deceased. Mr Arthur yelled at the accused “Stop, stop, stop… you’re going to kill him” and “Fucking leave him alone”.

78. The accused did not stop stabbing the deceased at this point.

79. Another man by the name of Daniel Nia approached the accused and put the accused in what he described as a “bear hug”. This caused the accused to stop stabbing the deceased. Mr Nia then noticed the accused was armed with a knife and so he walked away from the accused.

80. The accused, having stopped stabbing the deceased for the time being, then walked to the back of the blue Honda Jazz and closed the boot. He then paced around in that area for a brief period of time.

81. During that period of time, the accused said, “I want to die”. He also walked back towards the deceased at which point a man by the name of Tuli Lugai yelled at the accused “No, don’t. Don’t do it, no”. The accused said, “I’m going to jail anyway, I may as well kill him” and/or “I gotta to kill him because I gotta go to jail.”

82. Shortly after this, the accused said to the deceased “Say you’re sorry to me, say you’re sorry to me”. The deceased, who was still conscious, said “I’m sorry mate, for whatever you think I’ve done”.

83. The accused then resumed stabbing the deceased who remained laying prone on the ground. The accused screamed “I’m going to fucking kill you, I’m going to fucking kill you”.

84. The accused intended to kill the deceased.

85. At some point the accused stopped stabbing the deceased. On at least one further occasion, he threatened to continue stabbing the deceased but did not.

86. The period of time between the first stabbing and the last was about 3 minutes and 47 seconds.

87. After he stopped stabbing the deceased, the accused remained in the area, moving backward and forward between the rear of the blue Honda Jazz and where the deceased laid. During this period of time, another NSW Ambulance arrived at the location at approximately 5:33am.

88. At approximately 5:34am police arrived at the location and tried to negotiate with the accused to drop the knife he was still holding. The accused didn’t say anything to police and refused to drop the knife.

89. Police then detained the accused by force. The deployment of a police taser was necessary in order to subdue the accused. The accused did not let go of his knife until he was tasered by police and brought to the ground.

90. The knife was later seized by police.

91. While the Police were trying to negotiate with the accused, NSW Ambulance officers secured the deceased and began attending to him. The deceased was transported by Ambulance to Liverpool Hospital. En route to Liverpool Hospital the deceased suffered cardiac arrest and died. Ambulance officers and hospital staff tried to resuscitate the deceased for next 1 hour and 40 minutes with no success. Further resuscitative efforts were terminated.

Post-Mortem Findings

92. On 18 and 19 April 2023, Dr Jennifer Pokorny (Pathologist) conducted an autopsy of the deceased and confirmed the cause of death to be the result of multiple stab wounds.

93. In total Dr Pokorny identified at least 55 stab wounds and 20 incised wounds including to the following areas:

Chest/Abdomen

i.   11 stab wounds (5 of which were gaping); and

ii.   4 incised wounds

Head

iii.   3 incised wounds

Neck

iv.   1 stab wound (extending into the right internal jugular vein)

Left arm

v.   7 incised wounds

Right arm

vi.   23 stab wounds (19 of which were gaping);

vii.   2 wounds; and

viii.   5 incised wounds

Left leg

ix.   16 stab wounds (4 of which were gaping)

Right leg

x.   7 stab wounds (each of which were gaping); and

xi.   1 incised wound

The Knife

94. The knife used by the accused at 7-Eleven, Ingleburn; Spitfire Drive, Raby; and at the McDonalds Carpark, Campbelltown was the same knife, namely a kitchen knife approximately 28.5cm in length with a 15.5cm blade.

The accused’s background

95. The accused had a psychiatric history that predated these offences. For an offence of assault against a neighbour in May 2021, a magistrate made an order under s 14 of the Act discharging the defendant on condition that he engaged in mental health treatment for 12 months. An assessment subsequently at Campbelltown Hospital considered that the accused was psychotic and required involuntary admission. His mother informed a nurse who assessed him that he had been isolating in the house for a year and had become increasingly paranoid of others including family members. She said he had been responding to possible auditory hallucinations. It was concluded that this constituted his first episode of psychosis.

96. Following his arrest for the present offences the accused was assessed by Dr Gerald Chew, a consultant psychiatrist at Justice Health and Forensic Mental Health Network, for the magistrate before whom the accused came in September 2023. Dr Chew noted the accused’s first episode of documented psychosis in 2021 at the time of the earlier assault charge. He noted that the accused had 12 months of Court ordered treatment, and that he was started on Aripiprazole 400mg long acting depot and also Acuphase, both anti-psychotic drugs used to treat schizophrenia and mania. When he was discharged from the Macarthur Youth Team in November 2022 he ceased compliance with his treatment including his medication.

97. Dr Chew diagnosed the accused as suffering from a chronic severe psychotic mental illness with the most likely diagnosis being schizophrenia. Dr Chew said that the accused was a mentally ill person within the meaning of s 14 of the Mental Health Act 2007 (NSW). Dr Chew was also of the opinion that the accused was acutely psychotic at the time of the present offences.

98. When assessed by Justice Health on 14 April 2023 after his arrest, a PACER MH Current Assessment disclosed:

Reported current auditory hallucinations in the form of various voices and his own voice telling him to kill himself and others. Reports this has increased in intensity over the past month.

Reported this morning he was unable to cope with these voices any more and therefore engaged in the fatal stabbing of a random member of the community.

Reports in the lead up to this, there “was a lot of hating” towards him but could not elaborate on same….

Jordan reports that he feels he gets a thought from the voices, he can’t think of anything else and then acts on it even when it involved harming someone today. Feels he is unable to stop himself when these thoughts enter his mind, his body follows.

Expert reports

99. Subsequently reports have been prepared by the psychiatrists Dr Kerri Eagle for the Director of Public Prosecutions, and Dr Olav Nielssen for the accused.

100. Those psychiatrists are in agreement as to the accused’s mental health impairment and in their assessment of the accused generally. Both Dr Eagle and Dr Nielssen are very experienced forensic psychiatrists.

Does the accused suffer from a mental health impairment?

101. Both psychiatrists considered that the accused had a mental health impairment at the time the offences were committed.

102. Dr Eagle said:

C.   Mr Fineanganofo had a mental health impairment within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 around the time of the alleged Index Offences. He displayed signs and symptoms of a psychotic episode, including hallucinations, delusions, and disorganisation of thought form, that were consistent with a relapse of schizophrenia. Schizophrenia is a severe chronic psychotic illness and considered a neurodevelopmental disorder characterised by relapses of psychosis, negative symptoms (deficits such as reduced motivation, affective blunting, anhedonia and abolition) and functional impairment.

D.   Mr Fineanganofo reported hearing voices from demons that tapped on his body to give him commands and talked to him in a derogatory manner during the weeks on the 13 April 2023 and 14 April 2023. The experiences are consistent with auditory and tactile hallucinations. He said he believed demons were present around him, consistent with a bizarre delusion. He thought others were part of the demons, for instance at Bunnings, consistent with referential ideation or delusions (misinterpreting benign experiences as having personal significance). During the weeks leading up to the Index Offences he was isolating in his room at home, had trouble connecting his thoughts and felt afraid that there were cameras, that demons were trying to humiliate him, that they were coming into his room at night and doing things to him (such as violating him). He said the voices had returned about 12 months after he had ceased his antipsychotic medication and gradually increased in intensity after that.

E.   During the week prior to the Index Offences, Mr Fineanganofo reported not sleeping or eating. He remained awake all night and slept for a few hours during the day. He believed the demons wanted him to kill himself. He said he (scil. they) were commanding him to do things. He described he felt unable to control himself in the context of the voices. He said the demons put thoughts into his head. He said he saw a dog in his eyes. He had trouble connecting his thoughts.

F.   On 13 April 2023, Mr Fineanganofo said he went to Bunnings to buy a rope because the demons wanted him to kill himself. He said he believed the cashier was a demon who said to him "hope you hang yourself dog." He said he felt out of control. He remained awake that night. He said he was hearing the voices and seeing the dog in his eyes.

G.   On 14 April 2023, Mr Fineanganofo said he went out with the intention of killing himself. He took a rope but the voices made him forget a chair. He was never supposed to take a knife. He said he went to the forest to find a tree but did not have a chair. He reported ongoing auditory hallucinations. He started driving. He reported auditory hallucinations at the 7 Eleven. He said he felt it hard to control himself. He said the votes (scil. voices) were telling him to “kilI someone."

H.   Witnesses reported Mr Fineanganofo as looking like he was in a trance, calm, mumbling, grinning and odd, which is consistent with a person experiencing symptoms of a psychotic illness in the context of the other information and Mr Fineanganofo's self report. Mr Fineanganofo's family described him as isolating in his room, not sleeping at night, losing weight and reporting being scared something was going to happen in the week prior to the incident.

I.   At the time of his arrest, Mr Fineanganofo was assessed by PACER mental health clinician who identified him as experiencing symptoms of psychosis including auditory hallucinations that he could not stop himself acting on. He was assessed by mental health staff at Campbelltown Hospital on 14 April 2023 and identified as experiencing command auditory hallucinations, perplexed, thought disordered, suspicious, experiencing passivity phenomena (delusions of control). He was detained at MRRC, Silverwater Correctional Facility on 15 April 2023 and identified by Justice Health staff as likely psychotic. He was commenced on antipsychotic medication. He was treated for identified symptoms of psychosis for several weeks. On 1 June 2023, 6 weeks following the alleged Index Offences he was felt to have clinically improved and had a diagnosis of schizophrenia with residual symptoms of psychosis.

J.   Video footage at the time of his arrest and subsequently at the police station also demonstrates Mr Fineanganofo appearing still quiet and perplexed. His presentation is not inconsistent with a person experiencing a psychotic episode.

103. Dr Nielssen diagnosed the accused as suffering from Persistent Psychotic Illness (schizophrenia) and went on to say:

From the available information, I believe Mr Fineangonofo has the defence of mental impairment set out in Section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act open to him for these offences. He has a severe form of mental impairment in the form of a chronic form of psychotic illness, which during acute episodes presents with vivid auditory hallucinations and a range of delusional beliefs arising from the content of hallucinated voices, as well as delusions of reference from events in his surroundings. A feature of acute psychosis is the loss of capacity to think in a logical way, which around the time of the offences resulting in impairment in Mr Fineangonofo's ability to recognise that those experiences were a manifestation of acute mental illness.

Did the accused know that his acts were wrong?

104. Both psychiatrists were of the view that the accused understood the nature and quality of his acts but did not know that the acts were wrong. With regard to the latter conclusion, s 28(1)(b) of the Act explains what it means that a person did not know that their act was wrong – “the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong”.

105. Dr Eagle said:

K.   Mr Fineanganofo appeared capable of knowing the physical nature and quality of his actions at the time of the alleged Index Offences.

L. In my opinion, due to a severe mental health impairment Mr Fineanganofo was not capable of reasoning with a moderate degree of sense and composure about whether his alleged actions, as perceived by reasonable people, were wrong at the time of the Index Offences on 13 April 2023 and 14 April 2023. On that basis, from a psychiatric perspective, I am of the view the defence of mental health impairment under section 28 of the MHCIFPA could [be] available to him.

M.   Mr Fineanganofo was acutely psychotic and this caused him to be preoccupied with and act in response to intense auditory hallucinations, likely passivity phenomena (thought insertion), disorganised thought processes and persecutory delusions of demons controlling his behaviour. Collateral information is consistent with a person experiencing a relapse of psychosis due to schizophrenia. The intensity of the symptoms Mr Fineanganofo reported and appeared to be experiencing caused him to appear in a trance (likely due to internal preoccupation), incongruent in affect and odd. It is likely he was acting in response to symptoms, but also incapable of coherent and logical thought processes such that he could reason with composure about his actions at the time.

N.   Mr Fineanganofo has acknowledged he wanted to kill himself and his actions were initially motivated by this suicidal behaviour. He said the suicidal behaviour was driven by auditory hallucinations of demons telling him to commit suicide. Suicide and homicide, or other violence towards others, are all acts of violence differentiated by the direction of the aggressive behaviour. Mr Fineanganofo's actions, whether suicidal or not appeared clearly related to his mental state and, in particular, symptoms of psychosis.

106. Dr Nielssen said:

He was probably aware of the physical nature of his actions in stabbing another person, despite his disorganised thinking and evolving delusional beliefs. However, at the time of the offence I believe he was deprived of the ability to recognise that his actions were morally wrong, or to reason with any measure of sense or composure about the wrongfulness of his actions.

107. It will be observed in the agreed facts that a witness to the stabbing of Mr Tougher, reported that the accused said to him, “I’m going to gaol anyway, I may as well kill him” or, “I’ve gotta kill him because I’ve gotta go to gaol”. The witness’s recollection was, initially, that the first of those statements was said by the accused. A report was sought from each of the psychiatrists about whether such utterance from the accused, if found to have been made, provided an indication that he knew his actions were wrong.

108. Dr Eagle in her supplementary report of 30 August 2024, said this:

Mr Fineanganofo may have appreciated he could be subject to legal sanctions for his conduct, such as incarceration, but felt compelled to engage in the conduct on the basis of distorted reasoning due to a delusion that the victim was demonic, or auditory hallucinations ordering him to kill, combined with an inability to reason due to disorganised and distorted thought processes. He was not able to reason as to the moral wrongfulness of his behaviour which was driven by distorted beliefs, disorganised thinking and auditory hallucinations.

On the assumption that the Court finds Mr Fineanganofo did make the comment “I'm going to jail anyway, I may as well kill him,” I am of the view, from a psychiatric perspective, that such a finding would not suggest Mr Fineanganofo was less impaired or able to reason as to the moral wrongfulness of his conduct due to symptoms of psychosis.

Overall, as discussed in my previous report and above, I am of the view that all of the information indicates Mr Fineanganofo was suffering from an acute severe episode of psychosis resulting in bizarre persecutory delusions, disorganisation of thought and behaviour and auditory hallucinations and that those symptoms of psychosis impaired his capacity to think, reason, interpret his surroundings and control his behaviour, preventing him from reasoning with a moderate degree of composure as to the moral wrongfulness of his conduct over the entire period of his alleged offending from 13 April 2023 until his arrest on 14 April 2023.

109. Dr Nielssen said in a supplementary report of 3 October 2024:

The words uttered by Mr Fineangonofo would appear to indicate some awareness of the legal situation and that his actions would be considered to be punishable by law. However, the symptoms of an acute episode of psychosis described by Mr Fineangonofo, confirmed by the other information that is available, were accompanied by gross impairment in the capacity for logical thinking and in the ability to regulate his emotional responses, which in turn deprived him of the ability to consider the potential consequences of his actions with any measure of sense or composure. I concur with the opinion of Dr Eagle, that the homicide offence was a direct result of the effect of symptoms of mental illness, and was not due to a callous disregard for the potential consequences, and that his reported remarks at the time of the offence did not indicate the presence of some capacity to consider the moral wrongfulness of his conduct.

110. The witness later recollected that the accused may instead have said the second of the statements set out at [107], namely, “I’ve gotta kill him because I’ve gotta go to gaol”. A further report was sought from Dr Eagle asking if her opinion changed if the Court found that this different statement was made. In a report of 25 October 2024, Dr Eagle said:

The question appears to relate to the slight but significant change in how Mr Lugai described an alleged utterance of Mr Fineanganofo from "I'm going to jail anyway, I might as well kill him" to "I've got to kill him because I've got to go to gaol." The change in the recollection of Mr Lugai as to Mr Finanganofo's comment does not change my ultimate view, as expressed in my supplementary report dated 30 August 2024, and highlights the problematic nature of recollection during a traumatic event. Mr Fineanganofo has said he is unable to recall the comment and therefore he is unable to provide context.

Ultimately, I am of the view that any possible alleged comment needs to be considered in the context of all the information regarding Mr Fineanganofo's mental state, mental health, behaviour and circumstances. On that basis, I remain of the opinion that due to the considerable information that indicates Mr Fineanganofo was experiencing a psychotic episode at the time of all Index Offences, his reasoning at that time was significantly impaired by symptoms of psychosis.

I remain of the view that he was unable to reason as to the moral wrongfulness of his actions at the time of all offences due to a mental health impairment, and that a mental health impairment defence could be available to Mr Fineanganofo from a psychiatric perspective and subject to the findings of the court.

Conclusions

111. In addition to the Agreed Facts, I have viewed two DVDs which contain CCTV footage of the events constituting counts 1, 2, 3, 4 and 6. I am satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offences in counts 1 to 6.

112. Although both Dr Eagle and Dr Neilssen agree that the accused suffers from a mental health impairment, schizophrenia, in the way set out in s 28(1)(b) of the Act, the Court is not bound to accept those opinions. In Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Emmett JA said:

[12]   Although medical evidence is not essential to prove the defence of mental illness, it is very much the practice that expert medical opinion evidence is adduced on that issue in criminal courts in New South Wales (R v Rodriguez [2010] NSWSC 198 at [45]). While juries are not bound to accept and to act upon such evidence, they are not entitled to disregard such evidence capriciously. However, it is open to a jury to reject unanimous medical evidence where other evidence casts doubt upon it. Where the expert opinion is not challenged and no other evidence casts doubt upon it, the trial judge should direct the jury that they should not reject it (Taylor v R (1978) 45 FLR 343; 22 ALR 599 at 608). However, where the factual basis for the expert opinion evidence is incomplete or unreliable, or the opinions are challenged in cross-examination, such a direction is not required (R v Shirwood (Court of Criminal Appeal (NSW), 24 July 1998, unrep)).

113. Justice R A Hulme and Bellew J quoted with approval what had been said in R v Iusi Afele [2014] NSWSC 366 at [68]:

If the medical evidence relating to the issue of mental illness is unanimous, that evidence cannot be rejected by the tribunal of fact in the absence of other material which casts some doubt on it: see R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 at 51; Taylor v R (1978) 45 FLR 343; 22 ALR 599; R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173; Tumanako v R (1992) 64 A Crim R 149.

114. In R v Siemek (No 1) [2021] NSWSC 1292 Johnson J said:

[93]   It remains the case that juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR(NSW) 20 at 31; Tumanako v R at 161-163; R v Klamo at [44]-[50]. Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337].

[94]   The parties in this trial referred to the statement of Button J in Carter v R [2019] NSWCCA 11 at [319] concerning the evidentiary value of expert psychiatric evidence:

“… although it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system.”

…

[112] Both the Crown and counsel for the Accused submitted that the Court would accept the unanimous evidence of the two medical experts that the second limb of the s.28 defence had been established in this case. Although it was acknowledged that the Court is not bound to accept the medical evidence relying upon the authorities referred to earlier (at [93]-[94]), it was submitted that the Court should do so unless there is some material which casts doubt upon the unanimous medical evidence. It was submitted that there was no such material in this case so that the Court should return a verdict of “act proven but not criminally responsible” under ss.30 and 31 MHCIFP Act.

115. In my opinion, there is no evidence that casts any doubt on the opinion of the psychiatrists that the accused suffered from a mental health impairment. I accept their opinions and find that the accused was suffering from a mental health impairment at the time he carried out the physical acts constituting counts 1 to 6.

116. The psychiatrists both hold the opinion that the accused did not know his acts were wrong. It is necessary, however, to consider what the witness remembered the accused saying at the time of the stabbing of Mr Tougher. It may be accepted that whichever of those remarks (set out at [107] above) was made it might lead to a conclusion that the accused knew that what he was doing was wrong.

117. However, both psychiatrists had the first of those remarks specifically drawn to their attention with a request for a further assessment on the issue of whether the accused knew that what he was doing was wrong. In the case of Dr Eagle a separate report was sought in case it was found that the second of the remarks was made rather than the first. The supplementary reports of the psychiatrists explain why they did not change their opinion notwithstanding the making of the first of those remarks. Their explanations were the same, namely, that the accused was grossly impaired in his capacity to think and reason in a logical way.

118. Although Dr Nielssen has not been asked for a supplementary report in the event that it was found that the second of the remarks was made, I do not think that this changes anything. The substance of the second of those remarks did not differ from the former of the remarks in the context of considering whether the accused knew that his actions were wrong. If anything, the latter remark suggests less of a realisation of wrongdoing, and more that he was compelled to do something. This may hark back to what was noted in the PACER assessment that he acts on the voices he hears and is unable to stop himself.

119. In circumstances where the experts’ explanations for their opinion in that regard are, in substance, the same, and there is nothing else to suggest that that opinion should have doubt cast on it, I consider that I ought to accept their opinion that, notwithstanding what the accused said, he did not know that his actions were wrong.

120. For those reasons, I accept the psychiatric evidence on the balance of probabilities that the accused suffered from a mental health impairment and that such mental health impairment had the effect that the accused did not know that his acts were wrong in respect of each of the counts.

121. The accused is represented by Mr Karim of counsel and Mr Faiz, solicitor, and in that way s 31(b) of the Act is satisfied.

Conclusion

122. In relation to each count on the indictment, I return a special verdict of act proven but not criminally responsible.

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Decision last updated: 08 November 2024