R v Hadler (No 2)

[2018] NSWSC 1804

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hadler (No 2) [2018] NSWSC 1804
Hearing dates:	12, 13, 14, 16, 19, 20 November 2018
Date of orders:	23 November 2018
Decision date:	23 November 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	(1) Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to the charge of murder. (2) Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Michael Hadler is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law. (3) I direct that the Registrar notify the Minister for Health of these orders. (4) I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, and a copy of trial exhibits F, G, N1, N2, 2, 11 and 13.
Catchwords:	CRIMINAL LAW – murder – plea of not guilty by reason of mental illness – schizophrenia - relevance of consumption of illicit drugs to psychosis – relevance of forensic awareness by the accused to knowledge of wrongfulness – “cover-up” of crime scene - unanimous agreement of experts as to availability of defence
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Edwards v The Queen (1993) 178 CLR 193 Hawkins v The Queen [1994] HCA 28; 179 CLR 500 McNaghten’s Case (1843) 8 ER 718 R v Falconer (1990) 171 CLR 30; [1990] HCA 49 R v Hadler [2018] NSWSC 1151 R v Jenkins [1964] NSWR 721; (1963) 64 SR (NSW) 20; 81 WN (Pt 2) (NSW) 44 R v Lane [2011] NSWCCA 157 R v Michaux [1984] 2 Qd R 159; 13 A Crim R 173 Radford v R (1985) 42 SASR 266 Steer v R (2008) 191 A Crim R 435 Taylor v R (1978) 45 FLR 343; 22 ALR 599 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Tumanako v R (1992) 64 A Crim R 149
Category:	Principal judgment
Parties:	Regina Michael Hadler
Representation:	Counsel: Mr S Hughes (Crown Prosecutor) Ms S Beckett (Accused)   Solicitors: Solicitor for Public Prosecutions Legal Aid Commission of NSW
File Number(s):	2016/00286148
Publication restriction:	None

Judgment

1. HER HONOUR: In the early hours of the morning of 23 September 2016 Brian Hamilton was killed by the infliction upon him of multiple stab wounds. Later that same day the accused, Michael Hadler, walked into Bankstown Police Station and confessed to having wielded the knife. He was charged with Mr Hamilton’s murder.

2. Later, when arraigned on 4 May 2018, before Johnson J, the accused entered a plea of not guilty on the basis of mental illness.

3. The matter came before me for trial on 12 November 2018, sitting as a judge without a jury, an order having been earlier made by the Court pursuant to s 132(1) of the Criminal Procedure Act1986 (NSW) for the trial to be heard in that way: R v Hadler [2018] NSWSC 1151.

4. The only issues in the trial were the availability of the mental illness defence or, alternatively, the partial defence of substantial impairment could be made out. There is no dispute that it was the accused that killed Mr Hamilton.

The Evidence

The Events of 22 and 23 September 2016

5. Although the exact date is not established on the evidence, the accused moved to an address at 70 Buist Street, Bass Hill, around August 2016. The residence at that address was leased by the deceased, Mr Hamilton. Mr Hamilton occupied one of the four bedrooms in the house, and sub-let the other rooms. Nathen Meddings let the master bedroom (bedroom 1; Ex. B); Frank Sumi had bedroom 2 (ex. B); and the accused occupied a converted sunroom at the front of the house (bedroom 3, Ex. B). The four men shared the lounge, kitchen, and bathroom. The accused paid rent to Mr Hamilton, as did the other men.

6. On the evening of 22 September 2016 all of the residents of 70 Buist Street were at home. Late that evening, at about 11pm, Nathen Meddings spoke briefly to Mr Hamilton, who was sitting in an armchair in the lounge room. He then went to his bedroom, where he remained for the rest of the night.

7. At some stage around midnight the accused went into Mr Meddings’ bedroom and the two chatted, and smoked cannabis. The cannabis belonged to Mr Meddings, and he shared it with the accused by passing a “bong” between them, turn and turn-about, with each smoking pretty constantly (T48:50). They continued smoking cannabis in this way for about 2 hours. In this time the accused appeared to Mr Meddings to be “stoned”, but was otherwise calm and normal, and engaged in normal conversation (T52).

8. By about 2am Mr Meddings, who had to go to work that day, wanted the accused to leave his room. The accused did leave the room, saying he was going to take a shower (T50:23). Mr Meddings tried to sleep, and probably dosed off before, after a time, seeing that the accused had returned to his room. The accused had showered, and was carrying a white bag with a floral pattern on it. He told Mr Meddings that he needed to put the bag in the rubbish, and asked Mr Meddings to go for a walk with him. Mr Meddings refused, and told the accused to put it with other recycling or rubbish items he kept in a cupboard in his bedroom. The accused put the bag into the cupboard. Although Mr Meddings wanted to be left alone, the accused sat down on a couch in his room where, with headphones on and apparently listening to music, he remained.

9. A little before 5am Mr Meddings got up and had a shower, prior to leaving for work. He did not specifically notice the accused, but the accused “tagged along” when Mr Meddings left the house and walked to a nearby bus stop, at sometime between 5.30 and 5.50am. Mr Meddings last saw the accused at the bus stop; he had been “chatty” and “friendly” (T52:02) when with Mr Meddings, and talked about wanting to be a father to his child. Although it was unusual for the accused to accompany Mr Meddings to the bus stop, the pair were “friendly, silly, like [they] always were” (T52:08).

10. Frank Sumi was the occupant of bedroom 2 at 70 Buist Street. He had been living there for six or eight weeks prior to Mr Hamilton’s death. In that time he had developed a habit of having a cup of coffee in the kitchen with Mr Hamilton, in the mornings before Mr Hamilton left for work. On 22 September 2016 Mr Sumi and Mr Hamilton had their regular morning coffee together, before Mr Hamilton left, taking the accused with him in his car with the intention of dropping him at work.

11. Mr Sumi saw Mr Hamilton later that day when Mr Hamilton returned from work at 4 or 5pm. He saw him from time to time thereafter, sitting in a lounge chair in the lounge room watching television. Mr Sumi last saw Mr Hamilton at midnight, still sitting in the lounge room watching television. They said goodnight to each other, and Mr Sumi returned to his room and went to bed.

12. He was awoken sometime during the course of the early morning by a very loud noise, as if something had been dropped on the floor and then dragged along it.

13. At 5am on 23 September 2016 Mr Sumi woke and, on getting up, went to the kitchen to make coffee. He noticed that Mr Hamilton’s bedroom door was wide open. Mr Sumi made coffee and returned to his room. At 6am he went back to the kitchen to make more coffee. The door to Mr Hamilton’s bedroom was closed. He saw the accused standing near his own bedroom. Mr Sumi told the Court (at T37:22) that,

He looked, he looked like funny. I don't know, bit scary, I just don't know how to explain. I didn't took much notice, so I just went to make coffee. Then he come in the kitchen, "Good morning Frank," "Good morning". I didn't say much to him, I didn't say anything. He was walking up and down and up and down, but he was carrying backpack, like a black small bag.

14. Mr Sumi thought that the accused looked very nervous; he was walking up and down and said to Mr Sumi that he was “very nervous today”. He asked for a cigarette, which Mr Sumi could not give him. Mr Sumi asked the accused if he was going to work, but he responded that he was not going to work “for a while”. His manner made Mr Sumi anxious. He told the Court (at T38:26),

[…] he was keep following me for a while and looking at me, like ‑ I don't know. I was glad to get out. I don't know, something give me a funny ‑ like a scary ‑ I don't know. I don't get scared easy but at that time it was just something unusual […].

15. Mr Sumi thought that the accused was on edge, nervous, and unsettled.

16. Mr Sumi later left the house for an appointment. He noticed that Mr Hamilton’s car was still parked at the property. It was still there when he returned at about 11.20 that morning. This was unusual, as Mr Hamilton typically drove his car to work. Mr Sumi went to Mr Hamilton’s bedroom and knocked on the door. When there was no answer, he opened the door, and saw his friend lying on his side. There was a great deal of blood around him. Mr Sumi called the Triple 0 Emergency Operator.

17. At 11.28am Ambulance Officer Gerard Pyke received an urgent call to attend 70 Buist Street. He left Bankstown Ambulance Station immediately, arriving at the scene eight minutes later. Police were already present, and Officer Pyke was escorted into the house by a police officer. He examined Mr Hamilton, who was clearly dead. The officer noted a throat laceration, but could see that there was no current bleeding. Mr Hamilton had a sum of $310 in cash on his person.

18. A later autopsy conducted by Dr Elsie Burger (Ex. E) revealed that Mr Hamilton had died as a consequence of multiple penetrating wounds to the body. It is not necessary to set out the injuries in detail, save to observe that stab, incised, and defensive wounds had been inflicted upon Mr Hamilton, to his abdomen, trunk, back, neck, and hands. There were over 50 wounds or lacerations, and there had been significant blood loss.

19. At 70 Buist Street a crime scene was declared and a police investigation commenced (Ex. J). A number of photographs were taken and forensic samples obtained. The samples were later examined. It was determined that blood swabbed from the bathroom sink contained DNA from two individuals, with the DNA of the major contributor to the mix being consistent with that of Mr Hamilton. Blood containing DNA most likely to be from Mr Hamilton was found on a pair of gloves located on a cupboard in the accused’s bedroom.

20. On 26 September 2016 Nathen Meddings found the white bag that the accused had put into the cupboard in Mr Meddings’ bedroom. He contacted police and the bag was collected. The officers found that the bag was a white floral patterned pillow case that contained a plastic bag which, in turn, held items of bloodied clothing, some medication in a blister pack, and a blood-stained silver knife with a bent blade. Later forensic examination determined that the blood on the knife and clothing was likely to have originated with Mr Hamilton.

The Accused’s Movements Following Mr Hamilton’s Death

21. The accused’s movements on 23 September 2016 can be reconstructed to a degree by reference to records relating to the Opal card registered in his name (Exhibit M), together with closed circuit television footage (“CCTV”), and contact he had with others that day.

22. The accused was not at 70 Buist Street when Frank Sumi returned to the property at 11.20am; necessarily he left the house after Mr Sumi departed for his appointment at 7 o’clock that morning.

23. At 7.23am, the accused’s Opal card was used to board a bus near Walshaw Park at Bass Hill. At 7.31, the card was used to ‘tap on’ at Yagoona Train Station, where the accused was captured on CCTV footage (Ex. P) boarding a train at about 7.56am.

24. At 8.03am, CCTV images obtained from Campsie Railway Station showed the accused alighting from the train. Shortly thereafter, he used his Opal card to board several buses. He sent a text message to Nathen Medings at 10.13am, saying, “DW link I’ll sort out our problem”. Whilst Mr Meddings interpreted “DW” to mean “don’t worry”, he did not understand the balance of the message. After Mr Meddings replied he received a further message “I know” at 10.21am.

25. During one bus ride, at 10.17am, the accused telephoned Mr Meddings; he spoke in a paranoid and rambling way, and told him “People are at home and they told me to leave” (T53:01). He said that he didn’t know where he was. The accused seemed to Mr Meddings to be more anxious than usual.

26. Eventually, the accused made his way to Summer Hill Train Station, where he was captured on CCTV footage at 11.06am. There, he boarded a train, alighting at Petersham Train Station.

27. At 11.35am, the accused was captured on CCTV alighting from a train at Redfern Railway Station, and walking up and down the stairs leading to another platform. He eventually boarded a train at 11.43am, later alighting at Leppington Railway Station.

28. The accused was next captured walking out of the entrance of Leppington Train Station before, a minute later, returning and walking onto a platform. At 1.06pm, the accused again left the Station.

29. Between 1.46 and 2.46pm, the accused was captured asleep on a train.

30. It would appear from the accused’s Opal card records that he made numerous, consecutive journeys on the morning of 23 September. There is nothing in any of the recordings that suggests anything unusual or odd about the accused’s conduct at these times (Exs. M, P).

31. Sometime between 4 and 5pm that day the accused arrived unannounced at the home of his friend Sophie Brown, at an address in Johnston Road, Bass Hill. Ms Brown lived only a very short distance from the premises at 70 Buist Street.

32. Ms Brown noticed that the accused was acting strangely and was not himself. He said that he had just killed someone, telling her that Nathen had set him up to do it or something similar. Ms Brown thought that the accused was saying “weird things” (T76:50), and “acting mental” (T77:04). She saw him physically twitching, and heard him making strange clicking sounds with his mouth. He seemed very agitated.

33. Ms Brown’s mother, Roberta Brown, did not believe the accused when he said that he had “killed an old man” (T83:39). She noticed that he spoke without emotion; his manner was blasé and he appeared unaffected by what he said.

34. As the two sat, with Ms Brown’s mother, in a bedroom watching television, an item on the television news referred to an incident in Buist Street, and showed images of the house Ms Brown knew the accused to live at. She asked him about the news item, but he sat making odd clicking or hissing noises and moving his body about. At times he hit himself. He gave Sophie his driver’s licence and told her to get rid of it. Roberta Brown saw that the accused had tears starting in his eyes. He said to her, “I told you […] I don’t want to upset you anymore. I’m going to confess” (T84:42). She heard him say “take my ID”.

35. The three watched a movie and smoked cannabis together. Later, the accused left the Brown house.

36. It is likely that, when the accused left the Brown house, he went directly to the home of his friend Thomas Richmond in Chester Hill. He arrived there at about 5pm looking “pretty dirty and a bit ratted and tattered” (T93:44). After sitting down inside the house the accused began to mumble and rock back and forth in his chair. The accused and Mr Richmond did not really talk and when, shortly afterwards, Mr Richmond had to go out, he asked the accused to leave.

37. About an hour later, after Mr Richmond had returned home, the accused turned up saying he had nowhere else to go and asking if he could come in. Mr Richmond took the accused to his bedroom. The accused sat down; he was shaking and appeared very agitated. Although Mr Richmond had seen the accused previously when unwell, he thought that on this evening the accused was acting “weird”, and seemed worse than Mr Richmond had ever seen him before. When Mr Richmond again left his house some time later, the accused also left, walking off down the road.

38. Mr Richmond’s mother Kim also saw the accused when he came to the family home on the evening of 23 September 2016 and thought that he was acting a bit weird.

39. At 7.20pm that same evening the accused arrived on foot at the Bankstown Police Station. On seeing Constable Avei Paleaae at the front counter, he said “I want to talk to someone. I have mental health issues”. The accused was asked whether he wanted to speak to a police officer or a doctor and replied “Any”. He was taken to an interview room where, shortly after, he was arrested for the murder of Mr Hamilton. On being searched the accused said that he had a knife in the pocket of the backpack he was carrying, telling the officers “but it’s not the knife” (p. 3, Ex. L).

40. After being entered into custody the accused was interviewed by detectives and the interview was recorded. The recording is Ex. F. The accused confirmed that he had earlier told the officers that the knife used to kill Mr Hamilton was in his room at 70 Buist Street, and he had been the one to use it. He described his room as the “Master room”, and said that the clothes he had worn when Mr Hamilton was killed were “in my room, master room” (Q&A18, Ex. F). He claimed that the clothes he was then wearing were clothes he had obtained by jumping fences and grabbing clothes wherever he found them.

41. When asked to tell the officers what had happened the accused said (at Q&A25, Ex. F),

I think I, I snapped at him, couldn’t handle his shit anymore. Yeah. So I just, I must’ve blacked out and next thing I know I’m walking around the streets reconciling about the actions I did.

42. Later, he said that he had stabbed Mr Hamilton “a few times” and “hurt him severely” (Q&A 49-50). He said that Mr Hamilton had been on his bed asleep when he had stabbed him. He did it because Mr Hamilton had been “annoying” him and he couldn’t handle it. The accused claimed that his memory of the attack came in flashes and he could not recall most of it. He said that, since that morning, he had been walking or roaming around. The accused initially denied knowing Nathen Meddings, although later conceding he visited the house at Buist Street. He denied having been at any person’s house since leaving there that morning.

43. The accused told the police that his “mentality” had brought him to the Police Station. He was asked what his mentality was, and replied, “Not normal” (Q&A80, Ex. F).

44. The accused said that he had two rooms at Buist Street, being the front room and the master bedroom. He described Mr Hamilton as someone who visited 70 Buist Street.

45. When speaking with the detectives the accused appeared quiet, disinterested, and flat in affect.

46. He was later charged, and remanded in custody.

47. On reception into the custody of the Department of Corrective Services the accused was assessed, on 25 September 2016, by Justice Health. He was noted to be talking and laughing inappropriately, agitated, and with mood swings. His behaviour was either isolative or over-familiar, and his attention to self care either excessive or diminished (tab 26, Ex. 2).

48. On 27 September 2016, the accused was again interviewed by detectives, with an audio recording of the interview made. The recording is Ex. G. By that date the accused had been entered into the custody of Corrective Services and had been treated by Justice Health staff.

49. As is usual, the accused was cautioned before being questioned. At least initially, he exercised his right to silence, responding “No comment” when asked about something he had said earlier to the officers. After a second answer of “no comment” the accused immediately began to explain to the interviewing officers why he had killed Mr Hamilton. He said,

He was just causing trouble mate. That’s it, I just, I was just on a rampage. I just wanted to hurt somebody at the time. That’s all I’m going to say (Q&A7, Ex G).

50. Expanding upon that, he said that he had killed Mr Hamilton early in the morning, at 1 or 2am, and that his actions had been “pre-meditated, I wanted to kill him from day 1” (Q&A10, Ex. F). The accused said, (at Q&A11, Ex. F),

I stabbed him numerous times, also put a murder weapon and that in, um, and the gloves and my clothes in Nathen’s room. Yep, tried to indicate someone else, and tried to hide my own tracks but, you know, I didn’t really care too much about the outcome.

51. The accused said that he had worn gloves “so that he wouldn’t get fingerprints on the knife” (Q&A84, Ex. F).

52. He said that he had afterwards cleaned the kitchen, put his clothes in his mate’s room, where the garbage was, showered to wash blood away, bent the knife he had used and stashed it in the house, and then waited at his “homestead” for “indications” that Mr Sumi had left the house, as he intended to burn it down. The accused explained that he planned to burn the house down because of,

The evidence, mate, fuckin’ evidence of course, ‘cause I […] like if I burn the house then, fuckin’ you know, quite frankly no-one would know that fuckin’ I did it. Um, no-one would, hopefully it would burn all the DNA and everything and get rid of everything. […] I thought the easiest way burn the house, burn him, yeah, but I didn’t want to endanger people who were living behind the house, or people who were next door to the house (Q&A35, Ex G).

53. As to why he had planned to kill Mr Hamilton, the accused said,

Um, I was getting really worried in my head, you know, fuckin’, that if I didn’t do something fuckin’ drastic, you know, something fuckin’ would have happened to my family, you know, or fuckin’, my son. So fuckin’, and I love my son man, so (Q&A 70).

54. The accused said that he thought Mr Hamilton would hurt his son.

55. He described himself as “fuckin’ paranoid before this fuckin’ shit” (Q&A93, Ex. F) and said that, afterwards, when he was travelling about on buses and trains, he had used his Opal card, but it had,

[…] kept saying, fuckin’ weird shit on there, man. So I fuckin’ knew that was tapped as well so I fuckin’ got rid of that (Q&A92, Ex. F).

56. On 14 October 2016 the accused was psychiatrically assessed and found to suffer from schizophrenia. He heard voices, and had delusions of reference. He told Dr Hearps that on the day Mr Hamilton was killed he heard a voice saying that he or his girlfriend would be killed (tab 28, Ex. 2). During a later review, on 4 November 2016, the accused reported that he had thought Mr Hamilton had taken photographs of his young son from his bedroom, and planned to kill him or his son (tab 29, Ex. 2). He said that he saw what had happened in flashes, as if in a dream. He said that, afterwards, he realised what he had done, was in shock, and fled.

The Background to Events of 23 September, including the Accused’s Psychiatric History

57. The first recorded episode of mental instability is from January 2009, when the accused was brought by police to Bankstown Hospital Emergency Department having attempted to hang himself after a relationship break down. He was admitted under schedule pursuant to the Mental Health Act2007 (NSW), but absconded soon after. The accused presented again at hospital the following day and he was treated overnight.

58. Records note that the accused had no past history of psychiatric illness, and his mood and affect were observed to be “normal” (p.5, tab 1, Ex 2). His thought was organised and he had good judgment and insight. The diagnosis was “situational crisis with parasuicide attempt”. The longer term history was one of “polysubstance abuse” (p. 6, tab 1, Ex. 2).

59. On 22 March 2011 the accused again presented at Bankstown Hospital, having been brought in by police officers to whom he had complained about being followed (tab 2, Ex. 2). The accused told medical staff that he had been increasingly paranoid over the previous 6 months, with a worsening of symptoms after using illicit drugs in the past 3 weeks, specifically, $20 worth of cannabis daily. The diagnosis was one of “substance induced psychotic disorder”. The accused was discharged on 8 April 2011, after treatment. His symptoms were noted to have completely resolved.

60. Later in April 2011 the accused was admitted to Banks House with a substance induced psychosis, and discharged with a prescription for risperidone (p. 2, tab 3, Ex. 2).

61. Later that year, on 28 June, the accused was admitted for about 10 hours as a voluntary patient to Banks House (tab 3, Ex. 2). He complained of Middle Eastern people following him with plans to kidnap or kill him. It was noted that “his persecutory ideations were not held in delusional intensity”, and he was discharged. The diagnosis was “mental and behavioural disorders due to use of cannabinoids, psychotic illness” (p. 3, tab 3, Ex. 2).

62. The accused remained in touch with outpatient services for the remainder of 2011, reporting some ongoing paranoid thoughts which he knew were not real He said that he was taking his medication and not using cannabis (tab 4, Ex. 2).

63. By 2 May 2012 the accused had resumed his use of cannabis, and was non-compliant with medication. He was taken to Liverpool Hospital and scheduled (tab 5, Ex. 2). He expressed systematised persecutory delusions and complained of auditory hallucinations. His condition improved with treatment and he was discharged on 31 May 2012, although with reported poor motivation to engage with drug and alcohol services. The diagnosis recorded was paranoid schizophrenia and cannabis induced psychotic disorder.

64. On discharge the accused remained in limited contact with outpatient services at Fairfield Community Mental Health Service. The diagnosis of the reviewing psychiatrist was one of schizophrenia, with psychotic symptoms precipitated by heavy cannabis misuse. By December 2012 the accused was noted to be non-compliant with medication, and using cannabis daily. His paranoia had worsened and he reported himself as “freaking out” (tab 6, Ex 2).

65. On the 19th of that month the accused was taken to Liverpool Hospital by police and admitted overnight. He was expressing suicidal thoughts and had asked the police to shoot him. He reported having taken Seroquel, but also using cannabis that day. On mental state examination (p.4, tab 7, Ex. 2) the accused was found to be spontaneous, relevant, and coherent. There was no evidence of thought disorder, delusions, or abnormal perceptions. The accused was said to demonstrate insight into his substance abuse, and be keen to commence drug rehabilitation.

66. Five days later, on 24 December 2012, the accused was back at Liverpool Hospital, accompanied by his mother. The accused’s mother reported that he had been having delusions and was complaining of auditory hallucinations. Due to a perceived risk of aggression the accused was detained on a secure ward, but discharged on Christmas Day, to friends. The diagnosis was “mental and behavioural disorders due to use of cannabinoids, psychotic illness” (p. 3, tab 8, Ex. 2).

67. There was some very limited contact between outpatient services and the accused in January 2013, but then no direct contact with him until May 2013, when the accused reported that he was unwell. At a home visit on 27 May 2013 there was some discussion with the accused and his mother about him being scheduled, but that did not immediately eventuate. His outpatient care was handed over to “COHMET” (Tab 9, Ex. 2).

68. COHMET attended to the accused that day and took him to Liverpool Hospital where he was admitted as an involuntary patient. The accused’s mother reported him as becoming disorganised, walking out on his job, not sleeping, and – she suspected – using illicit drugs. Because of the risk the accused was regarded as posing to himself and others, compounded by his abuse of drugs, a community treatment order (“CTO”) was granted. The accused was discharged on 14 June 2013 to his parents’ care (tab 10, Ex. 2).

69. In 2014 the accused’s condition continued to fluctuate, particularly after the CTO lapsed in May (tab 11 – 14, Ex. 2). On 16 March 2014 the accused presented at Liverpool Hospital complaining of hearing voices. He denied drug use but the use of synthetic cannabis was suspected. A Mental Health Risk Assessment conducted on 20 March 2014 confirmed that the accused was a daily user of synthetic cannabis. A fortnightly depot injection was required.

70. On psychiatric review on 19 May 2014 the accused was noted to be intermittently symptomatic in the context of cannabis use. Dr Matthew Thomas considered a CTO was essential as, without it, there was a high risk of non-compliance with medication and abstention from drug use, with potentially serious consequences.

71. There was a further presentation at the Emergency Department of Liverpool Hospital on 3 June 2014, with the accused reporting having been in custody without medication for a week, and hearing voices that told him to hang himself. The diagnosis was paranoid schizophrenia and drug induced psychosis (tab 15, Ex. 2).

72. In July 2015 the oversight of the accused’s community based treatment was transferred from Liverpool-Fairfield to Bankstown Community Health Centre (tab 16, Ex. 2). At around this time the accused was employed, compliant with medication, and reported that he had stopped using synthetic cannabis 3 months previously. He was living with his partner who was pregnant. The accused said that he was not experiencing symptoms. It would appear that no contact was made with the Bankstown service, after referral from Liverpool-Fairfield.

73. In early 2016 the accused became involved with an employment agency that assisted people with disabilities to find and remain in work. His caseworker from that time was Ximena Ruiz. Ms Ruiz very quickly helped the accused secure employment as a welder, and he held that job for about eight weeks. The employment ended because, although the employer regarded the accused as very professional and capable, the accused became paranoid (according to Ms Ruiz) and came to believe that other staff members were talking about him and perhaps stealing his tools.

74. The accused attended Ms Ruiz’ office frequently for help in securing employment, at times seeing her daily. He spoke frequently of his son, and his motivation in finding work, so that he could support the child.

75. Whilst Ms Ruiz regarded the accused as very employable because of his trade as a welder, he often displayed a high level of anxiety, and frequently changed his telephone number because, he complained to her, people knew who he was and were “chasing” him. He was concerned that his thoughts and conversations were being monitored. The accused was also transient in terms of accommodation, at one stage living under a railway bridge in Fairfield.

76. On 3 July 2016 police officers spoke with the accused at Fairfield. He complained of having attempted to stab himself, and “freaking out” (T127:20). There were visible injuries to the accused’s right wrist, and he was taken to hospital and admitted as having been brought in by police, pursuant to s 22 of the Mental Health Act 2007 (NSW). Medical notes (tab 18, Ex. 2) record the accused as saying that he wanted to go to hospital only so that he could get a bed to sleep. He denied having tried to stab himself, or having any current psychotic symptoms. He reported having been sleeping in his car for the past 2 months, following an altercation with his brother which resulted in his exclusion from the family home pursuant to an apprehended domestic violence order. He said he had not taken Seroquel for the past 2 months as he could not afford it, but had been using cannabis on a “binge” over the past 4 days. The accused had been taking Aripiprazole as prescribed, other than when on the “binge”, and he settled after self-administering the drug. No symptoms of psychosis were seen, and the accused was discharged the same day. The accused declined any assistance with accommodation.

77. The accused’s next presentation was on 8 July 2016, when he was brought to Liverpool Hospital by police. The hospital notes (tab 19, Ex. 2) record that a caseworker [Ms Ruiz] reported a threat by the accused to jump off a bridge after an argument about employment. The accused denied that the threat was intended seriously. He was noted to be co-operative, with good insight. He denied any paranoid or delusional thoughts, but said that he had experienced paranoid thoughts in the preceding week after using “ice”, and not taking his medication in that period. There were no symptoms of acute psychosis. He was discharged the same day.

78. Hours later, at 17:10 on 8 July 2016, Ms Ruiz took the accused to Cumberland Hospital. Ms Ruiz told Triage staff that the accused was “good one minute, angry the next” (p.8, tab 19, Ex. 2). The accused said that he wished to be admitted to get help. He was noted to be possibly “drug seeking”, in that he asked for benzodiazepines. He was observed to be agitated, but with no psychotic symptoms. The accused was admitted as a “5.1 patient” (p. 9, tab 19, Ex. 2) [presumably, a reference to s 5(1) of the Mental Health Act, which provides for voluntary admission].

79. On admission the following morning (9 July 2016) the accused gave a history of regular abuse of ice and THC, or methylamphetamine and cannabis. The principal diagnosis was given as “drug induced psychosis”, with the additional diagnosis noted as “relapse of schizophrenia” (p. 1, tab 20, Ex. 2). The accused was found to be oriented to time and place; whether he had auditory hallucinations or persecutory delusions was recorded as unclear. Later that day, after further review, it was decided to admit the accused “as 19D”, presumably, a reference to s 19(2)(d) of the Mental Health Act which governs admission under schedule.

80. On 12 July 2016 a social work entry referred to the accused’s expressed wish to be discharged to live in private shared accommodation at 70 Buist Street. By 13 July 2016 it would appear that there was no longer a basis to treat the accused involuntarily, as a discussion with him in which he agreed to be “voluntary” is recorded (on p.26, tab 20, of Ex. 2). The accused told the doctor that he was a drug addict, and wanted to live somewhere other than his old neighbourhood, as it was full of drugs. He was discharged with medication at 6pm on 14 July 2016.

81. Later that evening police again had to attend to the accused, who said he had been intimidated by three or four men. He said that he had found a microchip in his bag and he was being tracked by unknown people because he “knew too much” (T128:35). He referred to “codes” recorded on his underpants. When with the police officers the accused began to shout at some patrons of a nearby hotel who, he said, had called him a “fucking dog”. The accused threatened to cut his tongue out and poke out his eyes so that he could neither speak nor see. An ambulance was called and the accused was taken to Campbelltown Hospital. He was admitted there just before 10pm on 14 July 2016, complaining of having been sexually assaulted by three or four men who had followed him from a pub. He said that he wanted to be “scheduled” as he did not feel safe (p. 2, tab 21, Ex. 2).

82. The accused was noted to be unkempt and dishevelled, but his speech was normal and there was no thought disorder. He identified his principal issue as homelessness. The clinical diagnosis was paranoid schizophrenia. The accused was discharged on 15 July 2016 with a taxi voucher to the home of a friend.

83. Later that day an ambulance was called to attend to the accused, who had overdosed on Seroquel and was frightened of the consequences. He was drowsy but rousable, and was taken to Liverpool Hospital (tab 22, Ex. 2). On admission he complained of hearing people talking about killing him (p. 8, tab 22, Ex. 2). He denied any psychotic symptoms however, and asked for a taxi voucher to travel to Fairfield, where he planned to sleep in his car. He said he did not like the emergency accommodation in Campbelltown, where he had been prior to calling the ambulance. He was observed to look “well” and was discharged.

84. There was some outpatient contact with the accused following his discharge from Campbelltown Hospital, but it was made difficult by the accused’s homelessness.

85. On 1 August 2016 police were called to an area near a public house to deal with a complaint about a fire. The fire had been lit by the accused to cook food. He was sleeping in the area, as he was homeless.

86. In September 2016 Ms Ruiz saw the accused on two occasions. The first was around the middle of the month when the accused attended looking for assistance with employment. A suitable job was found for him, but the accused was unwilling to take it as it involved working with a type of metal that the accused was not happy with. The accused had some later telephone contact with Ms Ruiz, and at some stage told her he needed money as he had a loan to repay.

87. On 19 September 2016 the accused attended Ms Ruiz’s office, proceeding immediately to her desk without waiting at reception. He told her that he needed money and there was a discussion about adding some credit to his Opal card so that he could travel about. The accused was not satisfied with that proposal, although he was not upset or abusive. He told Ms Ruiz he wasn’t well and couldn’t get home. He subsequently left the office.

88. During the course of that day the accused telephoned Ms Ruiz on numerous occasions. During one such call he told her that he had not had his medication for about four weeks. He said he wasn’t well and needed to go to hospital. He asked Ms Ruiz to call a mental health service on his behalf. Ms Ruiz thought that the accused sounded afraid, and that he knew he was losing control. He said that he was afraid to go home and he had to stay away from home.

89. Ms Ruiz contacted the COHMET service at Liverpool by telephone, but was referred to the mental health team at Bankstown. The service at Bankstown suggested Ms Ruiz have the accused attend the office, but she believed that he was not well enough to make the trip. Soon after Ms Ruiz received a telephone call from the accused; he told her that he was at a fast food restaurant in Bass Hill and he thought someone was going to come and hurt or kill him. He told her he had knives in his bag. When Ms Ruiz warned the accused that she would have to telephone police, he said,

Yes, call the police because if they come and arrest me, maybe they can take me to the hospital and so I can get my injections (T14:27).

90. Ms Ruiz telephoned the Emergency Operator (Ex. A). She suggested to the operator that the accused was having “an acute psychotic episode”.

91. A “concern for welfare” call was broadcast over police radio at about 2.10pm, and two uniformed officers from Bankstown Police attended 70 Buist Street, arriving there at 2.40pm. The officers spoke with the accused at the front door of his home, and he had an apparently rational conversation with them. He acknowledged not having taken medication but explained that this was a consequence of his having moved house, and having to wait for his treatment to be transferred from Liverpool to Bankstown Hospital. He denied any thought of self harm, or of harming others. When he was asked whether he had been carrying knives at Bass Hill, he said,

Nah. I thought people were following me but I didn’t carry anything like that (Ex. K).

92. The accused said that he felt “good” and he did not want the officers to call an ambulance to take him to hospital. He appeared to Sergeant Alan Spence, one of the officers in attendance, to be composed and coherent, if slightly anxious. The officers did not think there was any basis upon which they could attempt to have the accused “scheduled”.

93. Ms Ruiz spoke to the accused again by telephone that day, and he confirmed that the police had visited him. She thought he sounded “flat”.

94. The following day, 20 September 2016, the accused contacted Bankstown Mental Health Service by telephone, reporting that he had not had depot medication since his discharge from Cumberland, and his condition was deteriorating. He was advised to attend the service the following day. He later telephoned to say he had found some Seroquel and would take 200mg of it and see if it helped. He said he would keep the appointment made for him on 21 September 2016. He did not keep the appointment.

92. On 21 September 2016 the accused arrived at the Johnston Street Bass Hill home of his friend Sophie Brown. She was not at home but her mother Roberta spent about 4 or 5 hours with the accused that day. He seemed sad, and gave her an account of moving in with Nathen, but of being made to sleep on a mat at the back door of the house. He said people were out to get him and his young son. The accused was calm, but he seemed upset about the things he told Roberta Brown.

Psychiatric Material

96. As already noted, the only real issues in the trial concern the accused’s mental state at the time Mr Hamilton was killed, and whether his mental state was such that he has available to him a defence or partial defence to the charge of murder. Both the Crown and the accused called expert evidence as to those issues. The last witness called in the Crown case was Dr Jonathon Adams, forensic psychiatrist.

Report of Dr Jonathan Adams

97. Tendered before the court as Exhibit N1 is Dr Adams’s report of 28 February 2018. In preparing his report, Dr Adams conducted two assessments of the accused, on 22 January and 31 January 2018, and had regard to a considerable quantity of documentary and other material supplied to him. Setting aside the issue of fitness, which is of no present relevance, Dr Adams considered the availability to the accused of a mental illness defence.

98. Dr Adams took a history from the accused commencing with his upbringing in Thailand, having been born as one of three children to a Thai mother and German father, who subsequently separated. The accused expressed concerns about the identity of his true biological father, and refused to discuss his mother, describing this as a “taboo” topic. The accused was not aware of any formally diagnosed family history of mental illness, but questioned whether his mother suffered with depression.

99. The accused was unable to give details of his early childhood, describing it as “a bit vague”. He denied any history of abuse, but later remarked that “I have memories, but I don’t know if they’re abuse or not”. He considered that, in this period, he experienced “a lot of depression”, but was unable to give further explanation as his memory was “all a blur”.

100. At the age of 6, the family moved to Sydney. The accused exhibited behavioural problems at school, including “lighting fires and making explosives”, damaging property, truancy and theft. As a result of his deteriorating behaviour he was suspended on several occasions, and left school at the end of Year 10.

101. The accused started a motor mechanics course at TAFE, but stated that he “learnt how to steal cars then left”. He then started but failed to complete a welding course. Thereafter, he worked intermittently as a welder and fabricator, being unable to “keep a job for more than three months”. In 2016, he was employed approximately three days per week as a welder.

102. The accused began using cannabis at the age of 12, his use increasing to a point where he smoked up to thirty “cones” per day. By the age of 14, he was using ecstasy and cocaine at weekends. He first came into contact with the criminal justice system at this time, telling Dr Adams that he offended to “make money” in order to fund his use of illicit substances, and “for the thrill of it”. By the age of 15 or 16, the accused was using methamphetamines, and began smoking them at the age of 18. He also admitted to once using heroin intravenously.

103. From the age of 22, the accused related that cannabis became his “drug of choice”, and he smoked upwards of 100 “cones” per day. He said that he did this until 2013 when he became involved with the mother of his son, at which point he cut down significantly. He admitted, however, to smoking synthetic cannabis whilst he was managed under a community treatment order, so as to avoid detection on drug screens.

104. The accused further reported his misuse of benzodiazepines from the age of 22 years onwards. He stated that he had been prescribed methadone in 2010 and 2011, but not since, and he denied any history of alcohol abuse.

105. To the doctor, the accused acknowledged having been diagnosed with schizophrenia and having been admitted to a psychiatric hospital at the age of 22 and on several occasions thereafter. The accused was able to provide a description of his mental state during periods of relapse of his schizophrenic illness. He admitted to Dr Adams having felt increasingly paranoid, and that he had held widespread fears for his safety, including a belief that the “mafia” were following him, or that various people wanted to kill him. At such times, he expressed concern that his technological equipment and mobile telephones had been “hacked”, and frequently referred to his concern about “codes”, including that certain numerical combinations had particular meanings.

106. He described his concern that people could “manipulate [his] mind” and “steal [his] thoughts”, consistent with the delusional belief of thought interference. He also described features consistent with referential thoughts concerning the television and radio and described features consistent with auditory hallucinations. During periods of deteriorating mental health, the accused described how his mood would become increasingly unstable and his behaviour erratic, with difficulties in thinking clearly. The accused has attempted suicide on three such occasions, the most recent being in 2011.

107. The accused told Dr Adams that at the time of the alleged offence, he was not compliant with prescribed medication. He admitted that he had last received the injectable antipsychotic medication, Abilify, and an oral antipsychotic, Quetiapine, at the Cumberland Psychiatric Unit, approximately two months prior to the alleged offence. When asked why he had ceased to take his medication, the accused replied that he was “paranoid… too scared to go out in the general world”.

108. In the days prior to the alleged offence, the accused told Dr Adams that he “was going off my head…full on paranoid”. He spent time walking the streets holding knives, and stated that he was “going to kill someone”. The accused said that he was smoking “at least 50 a day, 100 sometimes”, referring to “cones” of cannabis, and began smoking methamphetamine on a daily basis in the weeks before the alleged offence. He denied drinking any alcohol.

109. When asked about his mental health at this time, the accused said that he was “high, I had no feeling…I was off my head”. He told Dr Adams that in hindsight, he “guessed” he was mentally unwell at the time, but “at the time I didn’t think I was”.

110. The accused disclosed that he felt “paranoid all the time” in the days leading up to the alleged offence, believing that various people were “out to kill me”. He maintained several social media accounts and possessed seven or eight mobile telephones, which he believed were being “hacked”.  He believed that different colours represented various “codes” – for example, the colour blue meant that Nathen “wanted to take me to Bondi, drown me, and cut my eyes out”; yellow meant that “I was a snitch”.

111. He reported having heard unrecognisable voices threatening to harm his son and partner; receiving persecutory messages through the television and radio; and his concern that people around him were interfering with his thoughts.

112. When questioned about the details of the alleged offence, the accused could not recall the exact date or time that the incident occurred. He thought he “was still high on meth and marijuana”, and said he felt “paranoid” and “scared”.

113. The accused told the doctor that the victim had entered his room and “looked at my son’s photo…I thought he was a paedophile in my head…I just attacked him”. He acknowledged his memory difficulties, and stated “I didn’t know what was real and what was not real”, and that he had heard a voice saying “You’re a dog, I’m going to kill you … I’m going to get Jayden, Carmen, you” (Jayden being the name of his son).

114. The accused described feeling that “it was just too much to bear” and that he “went into Brian’s room and I stabbed”. He could not recall picking up the knife, and could not recall his exact thoughts at the time, saying “I don’t recall stabbing…one second I was in my room, the next I was on top of him”.  In the aftermath of the alleged offence, he thought that he may have had a shower but was not sure. He claimed not to remember anything.

115. He did, however, remember saying “goodbye” to Nathen in the morning, and that he was at that time still feeling paranoid and seeing “codes”. He also remembered walking through Bass Hill and visiting his ex-partner. About this time, he reportedly began to realise “what I did”, and told his ex-partner, “I think I murdered somebody”. He then attempted to “dump [his] ID” to avoid identification. He recalled being convinced that various car numberplates were encoded and contained persecutory messages.

116. Eventually, he handed himself into the police, telling Dr Adams that he did this,

“because I had no control over what I did, but I had control over the outcome… I did a bad thing, I’m going to hand myself in”.

117. The accused told Dr Adams that he could not recall telling police that he considered “burn[ing] the house down”. He also maintained that he could not clearly remember why he wore gloves, or put a packet of medication in a pillowcase, together with the knife he had used to attack Mr Hamilton, and his own bloodstained clothing.

118. Dr Adams noted that the accused began taking psychiatric medication soon after his arrest, and was prescribed Quetiapine at a dosage of 800mg each night, and Abilify, at a dosage of 400mg each month. He also had regular appointments with a psychiatrist. The accused told the doctor that, compared with his entry into custody, he now felt “heaps better”, although he said that he still heard voices and saw “codes”. He denied experiencing any recent command hallucinations and noted the decreasing intensity of his thought interference beliefs.

119. At interview, Dr Adams thought the accused appeared engaged, with no evidence of abnormal movements, agitation, ongoing hallucinations or abnormality of speech. Dr Adams considered there to be no evidence of a mood disorder, and that, while the accused manifested continuing features of residual delusional beliefs, his insight into these was good.

120. Dr Adams opined that, based upon his two interviews conducted with the accused and his review of the material provided,

“his clinical presentation is consistent with a diagnosis of schizophrenia and a comorbid severe substance use disorder”.

121. The doctor considered that the accused had suffered the hallmark symptoms of schizophrenia since 2009 and that relapses of his illness have been characterised by thought disorder, delusional beliefs, hallucinations, erratic behaviour, and self-harming behaviour. Noting the accused’s history of schizophrenia, his admission to Cumberland Psychiatric Hospital in July 2016, and the concerns raised regarding his mental health in the days prior to the alleged offence, Dr Adams considered that, at the time of the alleged offence, the accused was suffering from schizophrenia, and hence a ‘disease of the mind’ as referred to in McNaghten’s Case (1843) 8 ER 718.

122. Referring to his level of paranoia in the days before the alleged offence, his non-compliance with psychiatric medication, his experience of auditory hallucinations, evidence of underlying delusional ideas, and his use of illicit substances, the doctor considered that,

“All of these factors in my opinion are consistent with Mr Hadler suffering with persisting symptoms of schizophrenia at the material time, which would have impacted upon his decision-making capacity. Hence, in my view it is reasonable to suggest that he manifested a ‘defect of reason’”.

123. Referring to the fact that the accused handed himself into police, and consistently made clear that he engaged in violent behaviour, Dr Adams opined that,

“it is reasonable to conclude that at the material time he would have understood the nature and quality of the alleged offending behaviour.”

124. He noted, however, that,

“Nevertheless…it is reasonable to conclude that Mr Hadler would have been deprived of the necessary capacity to fully understand the moral wrongfulness of his behaviour, and also reason with a moderate degree of sense and composure. In my view, his symptoms of schizophrenia would have impacted upon his capacity for rational thought as well as his capacity for judgment and consequential thinking”.

125. With this said, he concluded that,

“on balance, in my opinion it is reasonable to suggest that Mr Hadler has the defence of not guilty by reason of mental illness available to him”.

126. Dr Adams also considered a partial defence of substantial impairment to be available to the accused.

Second Report of Dr Adams

127. Also tendered before the court as Exhibit N2 was a supplementary psychiatric report of Dr Adams, dated 4 April 2018, to be read in conjunction with his earlier report. Dr Adams had been asked to address the inconsistencies in the reasons provided by the accused to police as to why he killed the deceased, and his delay in stating to police that he held concerns over the safety of his son. With regards to the former, Dr Adams noted that when he interviewed the accused, he reportedly could not recall details of the offence or his police interviews. The doctor considered that,

“if it is accepted that he was suffering from symptoms of schizophrenia, and possibly the effects of illicit substances, this might well have impacted upon the consistency of his responses.”

128. With regards to the question of delay, Dr Adams suggested that, possibly, the accused’s paranoid state and persecutory thought processes made him initially unwilling to disclose these underlying concerns.

129. Dr Adams could not provide a definitive psychiatric opinion in his report as to why the accused decided to wear gloves at around the time of the alleged offence; his reported plan to burn down the house; or his steps to implicate another house mate by planting a pillowcase containing the alleged murder weapon and bloodstained clothing in a bedroom, as the accused told the doctor at interview that he could not clearly remember saying these things to the police.

130. Subject to this limitation and evidence that the accused was suffering from symptoms of schizophrenia at the time, the doctor conceded that these actions,

“suggest a reasonable level of understanding and capacity to understand the nature and quality of the alleged offence and the wrongfulness of it”.

131. The accused was able to recall his attempts to discard identification in order to avoid being traced. Dr Adams considered that this could be explained in the context of the accused’s persecutory thoughts and referential beliefs regarding car numberplates.

132. Dr Adams acknowledged that “clearly”, at the point where the accused handed himself into police, “he appreciated the wrongfulness and illegality of his behaviour”.

133. The doctor concluded that,

“In my view there is sufficient information to conclude that Mr Hadler manifested sufficient capacity to understand the nature and quality of the alleged offending behaviour at the material time. It is also likely that he would have appreciated the legal wrongfulness of his behaviour, particularly given that he handed himself into police soon after the alleged offence. Nevertheless, I remain of the opinion that from a psychiatric perspective it is reasonable to conclude that Mr Hadler would have been deprived of the necessary capacity to fully appreciate the moral wrongfulness of his behaviour, and reason with a moderate degree of sense and composure, because his symptoms of schizophrenia would have impacted upon his capacity for rational decision-making and judgment at the material time.”

134. He considered that the accused’s use of cannabis and methamphetamines shortly prior to the alleged offence would have served to “destabilise his mental health further”, worsen his consequential thinking and judgment, and worsen his levels of disinhibition.

135. Dr Adams was called by the Crown to give oral evidence before the Court on 14 November 2018.

136. Dr Adams accepted that the accused had, in the past, been given various diagnoses including drug induced psychosis, cannabis-induced psychotic disorder, paranoid schizophrenia and schizophrenia. He confirmed that, in his opinion, the accused was, at the time of the offence, suffering from “a diagnosis of schizophrenia, a diagnosis of severe substance use disorder and also the possibility of a substance-induced psychotic disorder”.

137. The doctor explained that, clinically, a substance-induced psychotic disorder is one in which “someone has taken an illicit substance that precipitates symptoms of psychosis; so delusions, hallucinations or thought disorder”, in an otherwise normal brain, with symptoms not persisting beyond a one month period.

138. In contrast, he said that in the accused’s case,

“My view is that given the diversity of his symptoms, the severity of his symptoms and the chronology of his symptoms and the fact that it appears that he's had symptoms of schizophrenia also at times in the absence of the use of illicit substances, that he has a diagnosis of schizophrenia” (T141). 

139. He also “hypothesised” that, at the material time of the alleged offence,

“It also seems reasonable to say that if he indeed did use illicit substances shortly prior to the material time, that those substances had an impact upon his mental state and might well have precipitated symptoms of psychosis”

but that given his underlying diagnosis of schizophrenia,

“you can't say that his mental state at the time was purely one of a substance‑induced psychotic disorder” (T141).

140. The doctor accepted that in and of themselves, the actions of the accused in the aftermath of the alleged crime could reasonably be interpreted as demonstrative of “an understanding of the ramifications of what it is alleged he's done, and yes, there is a hypothesis there to say that he was attempting to cover up.” He qualified this, however, by noting that he “could not purely see those factors in a vacuum” and that they must be considered in the context of what was known of the accused’s mental state, including his paranoia and persecutory ideation at the time.

141. With regards to the inconsistencies in the accounts related by the accused in his interviews with police, the doctor suggested that, due to his exhibition of symptoms of schizophrenia at the time,

“…when we're talking about his recollection of thought processes with hindsight, I would say that we do need to cast doubt on the reliability of them and not purely accept that they're a hundred per cent accurate” (T145).

142. The doctor was asked about the accused’s comment during his police interview that he did not burn down the house as he was concerned about doing harm to others present in the house and neighbours. It was suggested to the doctor that this demonstrated evidence on the part of the accused of empathy at the material time and an appreciation of moral wrongfulness.

143. The doctor disagreed, emphasising that the comment was made four days after the event and that, as it represented an account by the accused of his thought processes at the time, there must be doubt as to its reliability.

144. He said,

“…knowing what we do know about his mental state prior, during and post, from a psychiatric perspective, I think there's reasonable grounds to doubt the reliability of that comment because I think there's also other comments there, which reflect upon his mental state at the time in terms of some of the comments he made about the event, which are also perhaps inconsistent with his exact thought processes.  We know at that point in time that he was also experiencing symptoms of schizophrenia, which would have impacted upon his responses” (T146).

145. The doctor confirmed the view expressed in his reports that the accused understood the nature and quality of his acts. He also opined that, having regard to the accused’s efforts to cover up the offence, he understood the legal wrongfulness of his actions. However, he also placed this in the context of the accused being,

“paranoid and agitated, and in my view likely psychotic prior and immediately afterwards.  We need to consider those symptoms of schizophrenia as well as a hypothesis of:  he understood what he did and tried to distance himself from it” (T148).

146. In cross-examination concerning the medical records of the accused, the doctor agreed that he continued to exhibit features of schizophrenia even in periods when he was apparently abstinent from illicit drugs, and even when medicated with antipsychotics (T152; 155).

147. In relation to the accused’s mental state at the material time and the impact of his illicit substance use, the doctor again emphasised his view that,

“yes, he has a diagnosis of schizophrenia, yes he was enduring symptoms of schizophrenia at the material time and yes, my view is it is likely if it is accepted as accurate he did use cannabis or additional illicit substances that might have worsened his mental state” (T163).

148. The doctor agreed to a proposition put to him in cross-examination that the accused’s impairment at the material time was such that he could not reason with a degree of moderate sense and composure; that he did not know the act was wrong according to the ordinary standards of people in our community; and that he could not think rationally in terms of right and wrong.

149. He also agreed that the accused’s underlying schizophrenic illness would have substantially impaired his capacity to tell right from wrong, and his capacity to control himself.

150. The accused called evidence from two forensic psychiatrists, Dr Richard Furst and Dr Sathish Dayalan. Both doctors had prepared a report, which were tendered, and each gave evidence before the Court, on 19 November 2018 and 16 November 2018 respectively.

Report of Dr Richard Furst

151. Tendered before the court as Exhibit 13 was Dr Furst’s report of 24 June 2018, prepared for the purpose of these proceedings. Dr Furst saw the accused on 10 May 2018, and had regard to the reports of Dr Adams, and of Dr Dayalan. He also had regard to a previous interview he had conducted with the accused on 12 November 2014 in connection with an unrelated matter.

152. Dr Furst briefly canvassed the accused’s demographic history, noting that he had been renting a room in the property of the deceased at Bass Hill for approximately six weeks prior to the alleged offence, having been homeless for several months. The accused also disclosed a history of problematic gambling dating back to his teens and continuing into his 20s.

153. Dr Furst considered that, from the available history taken from the accused and a review of the medical records available to him, the accused suffers from a diagnosis of schizophrenia.

154. To the doctor, the accused described having experienced delusional beliefs such as a belief he was being followed, and that someone was going to kill him. He described having felt scared of boats, believing that someone was going to take him out into the water and drown him. Dr Furst considered that the accused described frequent symptoms indicative of delusions of reference, such as those relating to car numberplates and “codes”. The accused also described having heard voices of a command nature over the last several years.

155. The accused stated that from the time he moved in to the Bass Hill house, he became increasingly paranoid. He reportedly heard voices telling him, “I’m going to get you. I’m going to get your woman”. He saw dogs on the television and interpreted this as someone calling him a “dog” – a derogatory term. He became more isolated over the course of several weeks, smoking cannabis in his room and taking methylamphetamine daily. The accused believed that he last used these substances about 24 hours prior to the alleged offence.

156. In relation to the events on 23 September 2016, the accused told Dr Furst, “I was not well that day. I was hearing voices. Seeing codes.” He said he had not slept for two weeks, and was unable to control his delusions and auditory hallucinations. He told the doctor that he thought he saw the victim looking at a photo of his son and said,

“I heard a voice: ‘I’m going to get you. Get your son. Get your woman.’ I physically attacked him with a knife…like I was watching myself do it…it felt like it was a couple of seconds that I was watching myself do it. Flashes of what I was doing with the knife. It made more sense as the day went on…I was out of it. Tripping out.”

157. He went on,

“After I realised what I did. I fuckin’ done something bad. I saw my mate Thomas. Had a couple of drinks at Chester Hill. I didn’t tell him. Once I realised what I did, I handed myself in.”

158. He told the doctor that he felt remorse for his conduct and that he suffers nightmares and flashbacks. He said he did not know why he had stabbed Mr Hamilton, which made him feel even worse.

159. The accused presented with a blunt affect and lacking in emotional expression. He had residual paranoid delusions, including still seeing “codes” in milk cartons and “freaking out”. He reported ongoing auditory hallucinations to the doctor, but was not responding to internal stimuli at the time of assessment. His mood appeared depressed, he expressed some anxiety about his son, and displayed only partial insight.

160. Based on his presentation at interview and a review of relevant medical material both preceding and post-dating the offence, Dr Furst considered the accused to meet the criteria for diagnoses of chronic and treatment resistant schizophrenia, and substance use disorder (cannabis and methylamphetamines). The former diagnosis was consistent, in Dr Furst’s opinion, with the accused’s presentation to the Emergency Department at Liverpool Hospital and admission to Cumberland Hospital in July 2016, which were in turn,

“consistent with his illness being unstable in the months leading up to his alleged offence”.

161. Having had regard to all the evidence, the Doctor opined that,

“it would appear more likely than not Mr Hadler was mentally unstable at the time of the alleged offence, was not taking any medication and had been abusing drugs, such that he was experiencing both paranoid delusions about the victim and auditory hallucinations.”

162. He considered that actions taken by the accused at the time of the alleged offence including wearing gloves, showering, changing clothes and other steps taken to apparently conceal his crime,

“suggest he was aware his actions were legally wrong, but does not speak to whether or not he felt his actions were morally justified and/or driven by psychosis.”

163. In the doctor’s opinion,

“the available evidence makes it more likely than not Mr Hadler was labouring under a defect of reason in the McNaghten’s sense at the time of the alleged offence by virtue of his paranoid delusions and auditory hallucinations, including “voices” instructing him to harm and kill people. His acute psychosis, schizophrenia and his mood disturbance also meant he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure.”

164. In oral evidence on 19 November 2018 Dr Furst confirmed that on both occasions on which he had seen the accused, in 2014 and 2018, his diagnosis had been one of treatment resistant schizophrenia and of substance use disorder.

165. In relation to the accused’s earlier diagnoses of drug induced psychosis or substance use disorder, he commented that persons with schizophrenia often initially present with symptoms that are more transient, such as periods of paranoid thinking or hallucinations. Where such symptoms are short-lived and coupled with use of illicit substances, most psychiatrists would initially make a diagnosis of drug-induced psychosis, and it is only “in the full passage of time that the diagnosis becomes clearer one way or another”. In this way, he opined, the accused’s early diagnoses could not be considered in conflict with his later diagnosis of schizophrenia.

166. Even with treatment whilst in custody and in the absence of illicit drugs, the accused continued to suffer from symptoms of schizophrenia.

167. The doctor was questioned about the effect on the accused of having last received depot medication at Cumberland Hospital on 14 July 2016, and subsequently having ceased to take prescribed medication and resumed illicit drug use. Dr Furst considered that this sequence of events would have led to a deterioration of his condition and an increase in psychotic symptoms.

168. In relation to the inconsistent accounts given by the accused to police, Dr Furst opined that,

“memory for emotions and memory for thoughts does fade a bit over time even for the normal person.  So the more time that elapses, the less reliable, in general, the memory will be for how someone felt or thought at a certain time.  And I would say that in someone who's acutely psychotic, the capacity to remember accurately is less than it would be for someone without that psychosis, because of the cognitive impairment as part of schizophrenia” (T207).

169. He also noted that as the accused was still experiencing ongoing symptoms of psychosis and paranoia at the time of the police interview,

“…that recollection is then confounded by paranoid thinking…they might be paranoid about the person who's asking them questions, whether it's a psychiatrist or a nurse or a police officer.  So they might be guarded and not disclose things to that person…” (T207). 

170. The doctor acknowledged that it is “hard to tell” whether the accused’s comments to police that he occupied the master bedroom in the house, that the deceased "just comes and visits", that he did not know Nathen, or that he too was a visitor (all of which were inaccurate) were evidence of paranoia as a result of schizophrenia, confused thinking or, simply lies told to police. However, he told the Court that he “wouldn't place too much weight on the first interview in that respect”. 

171. The doctor was asked for his opinion on the accused’s decision not to “burn the house” and whether this demonstrated evidence of moral reasoning. He replied,

… the accused had a capacity for some reasoning, for reasoning in terms of making decisions and choosing to do things…But there's a difference between the capacity to reason about choices, such as the impact of burning the house down, with the capacity for moral reasoning, reasoning about the moral wrongfulness of the action that he's accused of.

[…]

In this case there was no delusion about Frank or the neighbours, as far as I can tell.  There is nothing in the evidence to suggest that he had bad feelings, delusional or otherwise, towards them; therefore, he made a rational choice in his psychotic mind not to harm them or not to endanger them” (T217).

172. He considered that the accused’s mental impairment was such that he could not reason about the matter with a moderate degree of composure; that he was impaired in his ability to reason right from wrong; and did not know the act was wrong.

173. He did not consider that the accused was substantially impaired as a result of his underlying diagnosis in his capacity to understand the events, but did conclude that he was substantially impaired in his capacity to judge whether his actions were right or wrong, and in his ability to control himself.

174. The doctor agreed in cross-examination that the actions undertaken by the accused potentially to “cover up” his offence and certain responses in his police interview suggested that he was aware of the idea of forensic evidence and of the legal wrongfulness of his act.

175. The doctor was asked whether it is possible to say if it is was the drug use that tipped the accused into psychosis at the material time, or his act was simply a manifestation of his underlying schizophrenic condition. Dr Furst opined,

“I don't think it is possible.  I think the evidence is that the drug use would have increased the psychotic symptoms…

…It is an irrational killing.  Any delusion that would lead someone to do that would tend to be something which has been there for a little while … I think that the ingestion of cannabis was either coincidental and unrelated or basically increased the intensity of those delusions or it disinhibited him such that he then acted on those delusions at that time.  I doubt that because of his delusions persisting into custody that they were transient around the cannabis alone” (T226).

Report of Dr Sathish Dayalan

176. Dr Sathish Dayalan’s report of 3 July 2017 was Ex. 11. In preparing his report, Dr Dayalan conducted a psychiatric assessment of the accused on 3 July 2017 and had regard to relevant documentary material.

177. Like the other psychiatrists, Dr Dayalan began by taking a personal and psychiatric history from the accused which I do not propose to repeat.

178. The accused told the Doctor that in the period just prior to the offence, he had believed “people were trying to get me, Mafia or something…trying to steal my identity and take my pension”. He had also been convinced that his mobile telephones were being hacked, and had discarded six or seven mobiles over a period of a few weeks.

179. The accused said he had been experiencing auditory hallucinations on a daily basis, which were reinforcing his persecutory beliefs. He became increasingly paranoid and anxious, believing he was receiving warning messages and “codes” from mobile telephones and barcodes on milk cartons.

180. He stated that on the day of the alleged offence, Mr Hamilton had come into his bedroom to get a cigarette and looked at a photo of his son. The accused heard a voice saying “I’m going to get you and your son”. He recalled hearing dogs barking, which he interpreted as Mr Hamilton calling him a “dog”.

181. He admitted to Dr Dayalan having worn gloves prior to the offence and after stabbing the victim. He also admitted having had a shower, having put his clothes in a bag which he then placed in a garbage bin, and having attempted to dispose of his identity documents.

182. At interview, Dr Dayalan noted that the accused was polite and cooperative, with no evidence of irritability or agitation. His speech was of increased rate and quantity, and normal volume. His mood was anxious and reactive. Dr Dayalan did not consider there to be evidence of thought disorder or delusional beliefs, though fleeting persecutory thoughts were reported.

183. The accused continued to experience auditory hallucinations but said that he did not believe the content. Similarly, he continued to receive messages from barcodes but did not believe them.

184. The accused described feeling guilty about the alleged offence and reflected that “It could have been anyone. It’s just that he looked at the photo of my son.” He demonstrated insight into his condition and was willing to comply with treatment.

185. Having had regard to the medical material supplied to him and the interview, Dr Dayalan considered that the accused suffers from schizophrenia. He also noted that the accused gave a history supportive of “stimulant, opiate, benzodiazepine and cannabis use disorder that is currently in remission in a controlled environment”.

186. At the time of the alleged offence, Dr Dayalan considered that the accused was experiencing both persecutory and referential delusions, which were being reinforced by auditory hallucinations. He opined that,

“Mr Hadler had a defect of reasoning in that he was experiencing multiple delusional beliefs. The delusional beliefs were symptoms of schizophrenia which can be regarded as disease of the mind. Mr Hadler’s description of his behaviour at the time of the offence suggests that he did know the nature and quality of his act.”

187. However, he went on,

“In his psychotic state of mind, Mr Hadler appears to have believed that the victim posed a risk of serious harm to his son and him. He had believed to have acted in defence to save the lives of himself and his son. He therefore did not know the wrongfulness of his act.”

188. In oral evidence before the Court given on 16 November 2018 Dr Dayalan confirmed that, when he saw the accused on 3 June 2017, some 9 months after Mr Hamilton was killed, he was still complaining of experiencing auditory hallucinations, although of a lesser intensity than previously. The accused was in receipt of anti-psychotic medication but, Dr Dayalan observed, schizophrenia is a lifelong condition. He considered that the accused was suffering from that same condition on 23 September 2016, with more intense symptoms, including referential delusions, bizarre delusions, and paranoid thinking.

189. Dr Dayalan was firmly of the view that the accused was not suffering from a drug induced psychosis at the time of Mr Hamilton’s death, with such a diagnosis inconsistent with the pre-existing schizophrenic condition. He delineated those conditions in the following way:

So substance abuse psychosis is where the psychotic symptoms are entirely attributable to substance misuse. It should be noted that Mr Hadler had a diagnosis of schizophrenia made before, and so it's unlikely that he could rule out the contribution of schizophrenia when he had other psychotic symptoms, whether it's triggered by using drugs or with the stopping of medication. Also substance abuse psychosis by definition implies that the psychotic symptoms do not last more than a month from the time that they last used substances.

In this case, I noted an entry by Dr Henderson, which was from November 2nd [2016], that he still had ongoing psychotic symptoms, which is well after a month from the time of the offence. Mr Hadler reports that he had not used any substances since then (T176).

190. The relevance of illicit drugs use by the accused at around the time of Mr Hamilton’s death was, according to Dr Dayalan, that it increased the chance of the accused’s relapse into psychosis. The same was true of the cessation by him of prescribed medication. The doctor was under no uncertainty that delusions the accused held regarding Mr Hamilton arose as a consequence of his mental illness. He did not regard the fact that the accused had carried out some rational acts, such as wearing gloves prior to attacking Mr Hamilton, or taking steps to clean up the crime scene afterwards, as inconsistent with psychosis consequent upon suffering from schizophrenia.

191. Dr Dayalan did not regard the accused’s concerns about danger posed to neighbours were he to set fire to the premises at 70 Buist Street, as expressed in his interview with police on 27 September 2016, to detract from his conclusions about the accused’s inability to appreciate the moral wrongfulness of his act in killing Mr Hamilton. He said (at T185:45),

In my opinion, his ability to appreciate the moral wrongfulness of killing the victim was impaired by his specific delusional belief about the victim. So his ability to appreciate that it was wrong was affected because he believed this person was going to kill him and so on. It probably doesn't transfer to other individuals who weren't operant to his delusional belief (T185).

192. The doctor believed the accused knew his act was legally wrong, but distinguished that from knowledge of moral wrongfulness (T187-188).

Legal Principles

193. The offence of murder is one contrary to s 18 of the Crimes Act 1900 (NSW). In bringing the charge against the accused, the Crown assumes the burden of proving that charge beyond reasonable doubt. To discharge that burden in the circumstances of this case, the Crown must prove that the accused voluntarily did an act that caused the death of Brian Hamilton (the infliction of multiple stab and other wounds) and, at the time of doing the act, the accused had the necessary mens rea or state of mind, that being, relevantly, an intention to cause grievous bodily harm to, or kill, Mr Hamilton.

194. Setting aside the defence of mental illness for the moment, there is no onus on the accused to prove anything, and it is not for him to prove his innocence. When interviewed by police on 27 September 2016 the accused on occasion chose to make no comment, and no conclusion adverse to him may be drawn as a consequence of his choice to exercise his right to silence. That the accused did not give evidence before this Court is a matter of no significance; he was not obliged to do so and, again, no conclusion adverse to him can be drawn from that feature of the matter.

193. Some care must be taken in approaching some aspects of the evidence placed before the Court. There are references in Ex. 2 to the accused having a criminal history for offences including the infliction of grievous bodily harm (a reference which is, in any event, incorrect). That information was tendered insofar as it formed part of the accused’s medical history. It has no other relevance and I do not give it any. There is also a great deal of evidence about other criminal conduct, being the accused’s use of illegal drugs. This evidence is of relevance to the accused’s history of psychiatric impairment; it is not available to the Court to use in any other way.

194. There is also evidence tendered by the Crown as evidence of consciousness of guilt, being evidence of flight and that relating to the disposal by the accused of his identification. I am aware of the principles that relate to consideration of evidence of that nature: see generally Edwards v The Queen (1993) 178 CLR 193 at 201, 210–211 at 210; R v Lane [2011] NSWCCA 157; and Steer v R (2008) 191 A Crim R 435. I am also very familiar with the sort of direction that is given to juries about its use. As a general statement, to use the evidence as the Crown urges, the Court would have to be satisfied that the accused fled from 70 Buist Street because of a consciousness of guilt of the offence for which he stands charged and not for some other reason. Similarly, it would be necessary to conclude that he disposed of his identification because he feared detection by police for his crime and not, for example, because of paranoid thinking about persons “on his track” and out to get him.

195. There is an added layer to the use to be made of the evidence in the circumstances of this case, as the Crown relies upon this evidence to go to more than just consciousness of guilt. The evidence may be available to add strength to a conclusion that the accused was aware not only that he had done something for which he could be in trouble, but also that he fled from the crime scene and disposed of identity documents because he knew that what he had done to Mr Hamilton was morally wrong. The distinction must be borne in mind when considering this evidence.

196. Although the accused himself later, on 4 November 2016, described his departure from 70 Buist Street as flight, there are subtleties here in interpreting the evidence. Firstly, the accused did not “flee” immediately. He remained in the house for a number of hours after Mr Hamilton was killed, and at a time when the other occupants, on rising, could have discovered what had happened and called police or seized him themselves. Secondly, his mental condition is relevant to interpreting his conduct and, although there is a degree of circularity here, it is important to remember that the accused’s actions may not have been driven by rational choice, and thus may not carry the meaning that they may otherwise have carried, relevant to an accused person without a mental illness. I bear all of those features of the matter, and the applicable principles, in mind.

197. The defence raised by the accused depends, to a significant extent, upon the evidence of experts, and the Court heard from three forensic psychiatrists with expertise in that area. Each of the three doctors was comprehensively briefed with relevant information, and there is no issue as to the material on which each has based his opinion, with the exception of the reliability of the account given by the accused as to the circumstances surrounding the death of Mr Hamilton. There is no suggestion that any of the three doctors did not have access to necessary information in formulating their respective opinions. Neither is there any issue as to their respective expertise.

198. As each of the doctors were broadly in agreement, there is no conflict in the expert evidence for the Court to resolve. Given the conclusion of each that the accused was severely ill with schizophrenia at the time of Mr Hamilton’s death, such that he was not able to judge the moral wrongfulness of his act, the Court would need a clear and rational reason for rejecting the expert evidence on that point, if it were to do so. The evidence cannot be rejected 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; and Tumanako v R (1992) 64 A Crim R 149.

199. The only material which could operate to cast doubt upon the unanimous opinions of the experts here is the question of the reliability of the accounts of relevant matters given by the accused. There is a need for some caution in considering the opinions of the experts because the opinions rely heavily upon information given to each by the accused, or given by him to others and considered by the experts in reaching their conclusions. The accounts of events given by the accused were not given on oath and have not been tested; in that sense the history derived from him is hearsay. Any hearsay can be unreliable; and that potential unreliability is of even greater significance in the present circumstances, where the accounts given by the accused are contradictory, were given at times when he was mentally unstable, and rely significantly on his memory of events, a memory which itself may be unreliable because of illness and drug use. I approach the matter with the need for that caution in mind.

200. A significant issue of law is the application of the defence of mental illness or, if that defence is unsuccessful, the partial defence of substantial impairment. The former was raised at the outset; the latter is relied upon by the accused as an alternative.

201. The defence of mental illness is a defence that gives rise to an onus on the accused to prove on the balance of probabilities that he is not criminally responsible for his act. Where the defence of mental illness is raised, it is necessary to first 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: Hawkins v The Queen [1994] HCA 28; 179 CLR 500, at 517.

202. What is required to be shown was set out in R v M’Naghten where the Court said (at 722):

“[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

205. The meaning of the expression “disease of the mind” was considered by King CJ in Radford v R (1985) 42 SASR 266, at 274:

The expression ‘disease of the mind’ is synonymous, in my opinion, with ‘mental illness’ … I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M’Naghten rules. As Lord Denning pointed out in Bratty v Attorney-General(Northern Ireland)[[1963] AC 386 at 412] … any ‘mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind’.

206. King CJ continued, that for there to be a disease of the mind, there had to be “an underlyingpathological infirmity of the mind”. This underlying infirmity did not have to be permanent and could be of long or short duration. He said, at 274-275:

The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli. In my opinion the notion of ‘disease of the mind’ should be explained to the jury in some such terms.”

207. These statements were accepted as correct by Mason CJ, Brennan and McHugh JJ in R v Falconer (1990) 171 CLR 30; [1990] HCA 49 at 53 – 54, although it was noted that, where a disorder or disturbance was prone to recur, it may reveal an underlying pathological infirmity.

208. The reference in McNaghten to the accused not knowing that his act was wrong is often referred to as “the second limb” of the test. The second limb was further explained, to a jury, in The King v Porter [1933] HCA 1; (1933) 55 CLR 182 in this way (at 189 – 190):

If through the disordered condition of the mind [the accused] could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

209. That is, the gauge of wrongness is the everyday standards of reasonable people.

210. The Court is only concerned with the condition of the mind at the time the act was done, although the accused’s state of mind before and after the commission of the act may inform an understanding of it at the relevant time.

211. In summary, to avail himself of the defence of mental illness the accused must establish that, as a result of a defect of reason arising from a disease of the mind, he did not appreciate the nature and quality of the physical acts involved in stabbing Mr Hamilton or, he did not know that those acts were wrong according to the everyday standards of reasonable people.

212. Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides for a special verdict where an accused is not criminally responsible. 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.

213. There are consequences that flow from the return of a special verdict, as provided by s 39 of that Act, and by Division 2 of Part 5 of the same Act. I am fully aware of those consequences.

214. I propose to turn directly to the question of the mental illness defence, without setting out the law relevant to the partial defence of substantial impairment.

Consideration

215. There is no issue that the accused committed the physical act that occasioned the death of Mr Hamilton. Having regard to the evidence, the Crown has discharged its onus of proof with respect to the physical elements of the offence of murder, and I am satisfied beyond a reasonable doubt that the accused stabbed Mr Hamilton in the early hours of the morning of 23 September 2016 at 70 Buist Street at Bass Hill, inflicting injuries on him that led directly to his death.

216. The question is whether the accused can be held criminally responsible for his act, having regard to the evidence before the Court of the schizophrenic condition from which he was suffering at the time.

217. Ultimately, on the basis of all of the evidence, I have concluded on balance that the accused was suffering from a disease of the mind, schizophrenia, that led to a defect of reason such that, although he knew the nature and quality of the physical act he carried out in stabbing Mr Hamilton, he did not know that what he was doing was morally wrong.

218. There is a body of evidence from hospital records and those who had dealings with the accused that, with a history of schizophrenia, he became increasingly unstable from about July 2016. It is likely that his failure to take medication and his gross abuse of drugs considerably increased this instability, but the instability existed independently of his drug use and was attributable to his underlying schizophrenia.

219. Although I have concluded that the accused’s symptoms and eventual psychosis were made worse by the abuse of drugs, that does not discount the role of his enduring mental illness. His thought processes surrounding Mr Hamilton were paranoid and psychotic and, under the sway of that psychosis he acted as he did in the early hours of 23 September 2016. The frenzied nature of the attack itself speaks of its unreasoned nature.

220. The accused had complained to Nathen Meddings and others, such as Roberta Brown, about Mr Hamilton in a paranoid and quite unrealistic way, since the objective evidence is that Mr Hamilton tried to help the accused with employment and even in allowing him to owe rent monies. Notwithstanding that, the accused became convinced that Mr Hamilton posed a threat to him. Through no fault of his own, Mr Hamilton became the focus of the accused’s paranoid delusions. The accused acted in the thrall of those delusions at a time when, on balance, he was not capable of rational and composed thought about the moral wrongfulness of his actions.

221. His apparent attempts to dispose of evidence reveal an understanding that he would be in trouble for his act, but I do not think this conduct materially detracts from the conclusion that the accused was unable to comprehend the moral wrongfulness of his actions towards Mr Hamilton. In his deluded and psychotic state the accused came to see Mr Hamilton as posing a threat to his own safety and that of his son, and he acted as he did as a consequence. As Dr Furst said in evidence, his condition caused the accused to believe that it was morally the right thing to do when killing Mr Hamilton. He probably did understand that killing another person was a crime and he would be in trouble for it, but I am persuaded that he could not reason about the moral wrongfulness of the act in a context where he, wrongly, believed that Mr Hamilton threatened his safety and that of his son.

222. Accordingly, I propose to return a special verdict that the accused is not guilty of the murder of Mr Hamilton by reason of mental illness. In these circumstances it is not necessary to consider the law relevant to the partial defence of substantial impairment.

223. Before announcing the orders of the Court it remains to acknowledge the death of Brian Hamilton as a human tragedy, rather than as the object of a criminal trial. Mr Hamilton’s family have quietly sat through these proceedings and their presence here honours him. He was clearly a man who was greatly loved and who continues to be mourned. Mr Hamilton’s death in such horrifying circumstances must have devastated those who loved him. They have the Court’s sympathy for their loss.

orders

224. The following are the orders of the Court

1. Pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a special verdict of not guilty by reason of mental illness is returned with respect to the charge of murder.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), Michael Hadler is to be detained in a correctional facility, or at such other place as determined by the Mental Health Review Tribunal, until released by due process of law.

3. I direct that the Registrar notify the Minister for Health of these orders.

4. I direct that the Registrar notify the Mental Health Review Tribunal of my verdict and of these orders. I also direct that the Registrar provide the Tribunal with a copy of these reasons and orders, and a copy of trial exhibits F, G, N1, N2, 2, 11 and 13.

**********

Amendments

23 November 2018 - Removed extra full-stop in para 195.

Decision last updated: 23 November 2018