R v Khan (No 3)

[2019] NSWSC 36

Supreme Court

New South Wales

Medium Neutral Citation:	R v Khan (No 3) [2019] NSWSC 36
Hearing dates:	31 January 2019
Date of orders:	04 February 2019
Decision date:	04 February 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [11]; [15]
Catchwords:	CRIMINAL LAW – Admissibility of evidence – No point of principle
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Regina (Crown) Ihsas Khan (Accused)
Representation:	Counsel: C Davenport SC and K Curry (Crown) T Anderson (Accused)   Solicitors: Director of Public Prosecutions (Cth) (Crown) Legal Aid (NSW) (Accused)
File Number(s):	2016/272232
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. The accused in this matter has pleaded not guilty on the grounds of mental illness to a charge of committing a terrorist act, namely the stabbing of Wayne Greenhalgh. The fact that Mr Greenhalgh was stabbed by the accused with a knife that he (the accused) had purchased, is not in dispute. The sole issue for the jury's determination centres upon the mental state of the accused at the time of the stabbing. To that end, both the Crown and counsel for the accused will call expert psychiatric evidence.

2. As part of the brief of evidence, the Crown served a statement of Detective Senior Constable Allan Cavan upon those acting for the accused. Counsel for the accused wishes to elicit the contents of two particular paragraphs of that statement, to which the Crown objects.

3. The first paragraph is para 7 which is in the following terms (excluding a particular portion that counsel for the accused does not wish to elicit):

On Thursday 20 August 2015 I, along with Plain Clothes Senior Constable Morton, were heading to an address in the Minto area where I sighted the accused Ihsas Khan. I saw the accused enter 25 Ohlfsen Road, Minto. Later that evening, I carried out a check via New South Wales Police holdings which revealed the accused had previously been involved in anti-Australian incidents. The first incident was a malicious damage in March of 2013 whereby he removed several novelty Australian flags from a house fence a short distance from his house.

The second incident was in July of 2014 whereby he was sighted in the Ingleburn CBD covering the poster of a woman in the window of a pharmacy with electrical tape. When asked about this by police, he apologised and removed the tape. The accused was given a warning for this, however, his name was recorded on NSW Police COPS system differently so both incidents were not linked to him specifically. I organised for both recorded persons being the suspect to be linked on the New South Wales COPS system.

4. The second paragraph is para 9 which is in the following terms:

On 23 August 2015 I, along with Plain Clothes Senior Constable Morton, attended 25 Ohlfsen Road, Minto. We were greeted by the accused's mother, Farida Khan, who was of a Bangladeshi background, and were invited into the house. While in the house, the accused came out and spoke with us also. I discussed with the accused and his mother his previous interactions with the police in regards to the malicious damage of the plastic novelty flags and placing the electrical tape over the pharmacy window.

The accused and his mother informed Plain Clothes Senior Constable Morton and the accused currently suffered from religious-based obsessive compulsive disorder as well as schizophrenia which he was taking medication for. Ms Khan stated the accused is on medication, however, it is administered and monitored by her as he is unable to remember to take it. Ms Khan went on to state that the accused prays more than required based on their Muslim religion and sometimes hears voices of God in his head telling him what to do.

I asked Ms Khan about the accused's previous behaviour and whether he had expressed any violent tendency. Ms Khan recalled an incident where the suspect walked around the house with a large knife stabbing furniture. I also asked Ms Khan what mosque they attended and she stated they used to attend the Al-Faisal College but had not been for approximately two years.

Whilst speaking with Ms Khan she informed me that she currently had stage 3 breast cancer and (was) receiving treatment for this. She went on to state she was concerned for the welfare of her son as she monitored her son's medication and ensured he took his medication when required. It was clear when talking to her she believed her passing was imminent and her son's welfare was a concern for her.

5. It is apparent that the accused's mother has since passed away. It should also be noted that the statement of Detective Senior Constable Cavan was prepared in the context of an investigation of the accused for an alleged assault.

6. It was submitted by counsel for the accused that para. 7, at least insofar as it refers to two previous incidents involving the accused, was relevant to his mental state. Although those incidents had occurred in 2013 and 2014 (and thus well prior to the date of the present alleged offence) counsel pointed out that the accused's history of mental illness dating back to 2013 necessarily formed a part of the psychiatric history on the basis of which various experts had expressed their opinion. Counsel submitted that in this way, the evidence of the previous incidents disclosed in para 7 was clearly relevant to the primary fact in issue, namely, the accused's mental state at the time of his offending.

7. In terms of para 9, counsel for the accused submitted that both the opinions expressed by the accused's mother, and her observations of the accused's behaviour, went to the mental illness issue that I have identified. In this regard, counsel relied specifically on the provisions of s 65(8) of the Evidence Act 1995 (NSW).

8. The Crown's position in relation to the contents of para 7 was firstly, that it was necessary for the evidence to be placed in its proper context. It was submitted that it was clear that the police were investigating an alleged assault by the accused and that anything said by his mother at that time would necessarily have favoured the accused's position. The Crown further submitted that in any event, the contents of para 7 could be elicited by counsel for the accused through cross-examination of the Officer-in-Charge, Detective Schiavello.

9. As to the contents of para 9, it was the Crown's submission that the opinions expressed by the accused's mother were simply inadmissible and that to the extent that her observations of the accused's behaviour may be admissible, such evidence ought be excluded pursuant to s 135(b) of the Evidence Act on the basis that it was misleading and/or confusing.

10. In terms of para 7, the Crown's position is a little curious. It appeared that the Crown objected to the evidence being elicited through Detective Senior Constable Cavan, but had no objection to it being elicited from another source. It seems to me that evidence of those previous incidents involving the accused is clearly admissible, and relevant to the one and only issue in this trial. Those matters of context upon which the Crown relied go, in my view, to weight rather than admissibility.

11. Accordingly, to the extent that para 7 recounts incidents in 2013 and 2014, that evidence should be admitted.

12. Para 9 is more problematic. The contents of the paragraph, in a general sense, fall into two categories, namely:

1. statements made by the accused's mother going to his mental state; and

2. observations made by the accused's mother of his behaviour.

13. In my view, representations made by the accused's mother as to her observations of the accused's behaviour are relevant and admissible. Fundamentally, the opinions to be expressed by the psychiatrists who are to give evidence in this case are based upon the accused's psychiatric history. The observations of his mother form part of that history and are relevant to that issue.

14. However, I have reached a contrary view in relation to the opinions expressed by the accused's mother as to his mental state. The accused's mother would not be qualified to give evidence (for example) that the accused was suffering from "religious-based obsessive compulsive disorder as well as schizophrenia". Similarly, she would not be qualified to give evidence that the accused "prays more than required based on their Muslim religion". Even if that were somehow relevant, there is no link between that fact (if it be the fact) and the accused's mental state. It is the opinions of the psychiatrists which are relevant, admissible and material. In the absence of the necessary qualifications, s 65(8) does not make the evidence admissible.

15. I will allow such part of para 9 into evidence as reflects representations made by the accused's mother as to her observations of the accused's behaviour. I will reject anything over and above that including, in particular, any expression of opinion or opinions which appear in that paragraph.

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Decision last updated: 10 May 2019