R v Lieu (No 2)

[2018] NSWSC 486

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Lieu (No 2) [2018] NSWSC 486
Hearing dates:	16, 17 & 18 April 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	My orders are: Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness; Under s 39 of the Act, Lung Lieu 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; I direct the Registrar to notify the Minister for Health of these orders; I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the transcript of evidence and reports of Professor Greenberg and Dr Teoh.
Catchwords:	CRIMINAL LAW – offences against the person - murder - trial by judge alone - defence of mental illness - accused suffering from severe case of Chronic Paranoid Delusional Disorder - accused did not understand wrongfulness of his act - distinction between legal and “moral wrongfulness” - finding of not guilty by reason of mental illness
Legislation Cited:	Crimes Act 1900 (NSW) s 23A; Criminal Procedure Act 1986 (NSW) ss 132, 133, Mental Health (Forensic Provisions) Act 1990 (NSW) ss 38, 39, 43
Cases Cited:	Alford v Magee (1952) 85 CLR 437; Hadfield’s case (1800) 27 State Trials 1281 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28; R v Codere [1916] 12 Cr App R. 21; R v Jenkins (1963) 64 SR (NSW) 20;
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Regina (Crown) Lung Lieu (Accused)
Representation:	Counsel: N Williams (Crown) E Ozen (Accused) Solicitors: Office of Director of Public Prosecutions (Crown) Graham Nelson, Solicitor (Accused)
File Number(s):	2016/351061

judgment

1. The accused, Mr Lung Lieu was arraigned before the Court on 16 April 2018. He pleaded not guilty by reason of mental illness to the single count on the indictment that on 23 November 2016 at Campsie he murdered the deceased, Mr Guo Bing Liu.

2. On 20 March 2018 an election under s 132(1) Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”) had been made by Mr Lieu to be tried by judge alone to which the Crown consented. The application was filed one day out of time. On 28 March 2018 I extended time. Given the Crown’s consent, under s 132(2) I ordered trial without a jury.

The Crown case

3. The Crown case is that the accused killed Mr Liu shortly before 3:00 pm on 29 November 2016. The accused stabbed Mr Liu with a kitchen knife he had bought earlier that day for that purpose, a total of 27 times in broad daylight in Amy Street, Campsie under the full public gaze of a large number of eyewitnesses, being members of the community going about their ordinary business in a suburban shopping centre in the mid-afternoon in Spring.

4. Despite the age difference between them, Mr Liu and the accused had been associated for several years before November 2016. Text messages passing between them (Ex U) suggest that in the days leading up to the stabbing, the accused had developed a strong sense of grievance over circumstances which are somewhat obscure but involving the deceased. From the exchange of messages it can be inferred that Mr Liu was at a loss to understand this change in the accused’s attitude toward him.

5. It is common ground on the evidence before me that when the stabbing occurred the accused suffered from an undiagnosed, and therefore untreated, Chronic Paranoid Delusional Disorder. There is no reason to suppose that the Mr Liu had any inkling of the accused’s condition. Obviously he could not have known that the accused had incorporated his friendship with the deceased into what Professor Greenberg, the Crown expert Psychiatrist, described as the accused’s “long standing systemised persecutory paranoid delusional” belief system which was symptomatic of his mental condition (40.22 - 40.24T).

6. The content of the accused’s paranoid delusion consisted of a fixed irrational belief that the Australian Federal Police (“AFP”) were engaged in a process of subjecting women, there were two in particular, of Chinese ethnicity to cyber-sex crimes. He apparently had disclosed his belief about these matters to the deceased to enlist his help in exposing this mistreatment of Chinese women to the Chinese government. He felt betrayed by the deceased because he thought the deceased had belittled him by referring to his Vietnamese nationality in the letter. Moreover, he formed the irrational belief that the deceased was intent on killing him.

7. On the day of the stabbing the accused left his work at Coles Ashfield store early, travelled to Campsie and purchased the knife that he intended to use to kill the deceased. He then went to the home of the deceased hoping to find him there. As it turned out he was not home and his estranged ex-wife said he was not expected home until late that night. When the accused said he would wait for however long it took, Mr Liu’s ex-wife decided to try to reach the deceased on the telephone.

8. Notwithstanding the exchange of text messages to which I have referred already, Mr Liu obviously suspected nothing of the accused’s motives and passed on a message to the accused through his ex-wife that he would meet him near the Big W in Campsie.

9. From the eyewitness accounts there may have been some remonstration or argument between the men before the accused produced his newly acquired knife from a concealed position under his coat. He then proceeded to inflict the stab wounds in what was, according to the evidence of Dr Szentmariay, Forensic Pathologist, a frenzied attack. The nature of many of the injuries inflicted was such that they would have involved the application of considerable force.

10. Of the 27 wounds, 10 were to Mr Liu’s back. From eyewitness accounts these were probably inflicted first while Mr Liu remained on his feet. Dr Szentmariay regarded these as relatively superficial. But as Mr Liu, in reality, bled to death from his wounds they would have made some small contribution to his demise. Of the 17 wounds to the front of Mr Liu’s body six were of particular significance: first, a wound to the right front of the neck which completely bisected the right carotid artery; secondly, an oblique wound to the right of the chest penetrating the right lung; thirdly, a large transverse stab wound to the upper right chest penetrating through the ribs into the right lung to a depth of about 15 centimetres; fourthly a further transverse stab wound to the right chest area, going through the liver, the right hemi-diaphragm and the lower lobe of the right lung before connecting with the side of the eighth thoracic vertebra; fifthly a further large transverse wound to the right upper abdomen penetrating the parenchyma of the liver and the pre-pyloric portion of the stomach, having a length of 16 to 18 centimetres; and sixthly an oblique large gaping wound over the mid portion of the left side of the abdomen measuring 9 centimetres in length, slicing off a portion of the liver and of the transverse colon. Numerous loops of the small bowel protruded through this last injury and the knife became entrapped in this wound with a bent blade such that according to eyewitnesses, the accused could not extract it.

11. Of the approximately 4 litres of blood that Dr Szentmariay expected would have been in Mr Liu’s circulation, 850 millilitres leaked into and accumulated in his pleural and abdominal cavities. The expert also pointed out that considerable blood would have been lost through spillage onto the footpath at the scene.

12. After inflicting these grotesque and fatal injuries upon Mr Liu, the accused walked away towards Campsie railway station where he was later arrested by police. He had been followed part of the way by an eyewitness, Mr Pham who relayed the accused’s movements to the triple 0 operator via his mobile phone. He lost sight of the accused around the railway station which unbeknownst to Mr Pham he in fact had entered. Mr Pham is to be commended for his good citizenship.

13. On his way to the station the accused apparently discarded the jacket he had been wearing and his bloodied Coles uniform shirt.

14. When arrested he seemed strangely composed. When cautioned he said to one of the officers: “I don’t mean to be rude. This is not the place to discuss this.” Later while still at the station he asked Snr. Det. Const. Trappmann whether Mr Liu had died receiving an affirmative answer. He asked another officer “Excuse me, Sir, how long will I get if I plead guilty to murder?”

15. From the audio-visual recording of his interview with police, I formed the impression that he was strangely calm and deliberate in his responses. While he was somewhat selective in the questions he was prepared to answer, he appeared to take time for the consideration of each question before deciding whether to answer. I interpolate I draw no adverse inference from the consideration that he answered questions selectively.

16. Quite early in the portion of the interview discussing his movements earlier that day (Q and A 144), he interrupted the questioner saying “Sir, I apologise. I don’t mean to be rude, but as [I] explained, even when [I] face the judge I will only say this, yes, I killed that man. I killed him. That’s it. And that’s all I have got to say.”

17. He agreed that he stabbed him in Amy Street Campsie, stabbing him to death with a knife that he had bought from a shop in Campsie. He said he bought the knife “just before I killed him” (Q and A 156).

18. The accused attempted to stop the interview a number of times saying “I killed that man, that’s all I’ve got to say”. He also said (Q and A 182 - 183) that after he finished his shift, “So I came to Campsie and bought a knife. Then I killed a man. … after I killed him … I threw away [my] uniform”.

19. When asked about why he went to the railway station after the killing (Q and A 206 - 207) he said that he was going home to see his mother, “cause I know I’m going to get locked up. So I want to see her before I get locked up that’s all.” He did not wish to say anything about his association with Mr Liu, anything about what he knew of him, or anything about why he killed him. He was only prepared to say that the 23 of November 2016 was “not the first time” he had met him.

20. There is no dispute about any of these facts and both the learned Crown Prosecutor and Mr Ozen of Counsel for the defence rely upon them equally to argue that in the light of the expert psychiatric evidence which I will summarise below, I should be satisfied on the balance of probabilities that the accused is entitled to the benefit of the mental illness defence.

General legal principles

21. Section 133 Criminal Procedure Act prescribes my duties in a criminal trial without a jury. The section requires me to include in my judgment the principles of law and findings of fact I have relied on in reaching my decision. The section also requires me to take into account any warning which, in the circumstances of this case, would usually be given to a jury.

22. I bear in mind that I have the responsibility of identifying the real issues for decision. It is necessary for me to state only so much of the law relevant to those real issues: Alford v Magee (1952) 85 CLR 437 at 466.

23. The starting point, and fundamental rule, as in any criminal trial, is that the accused is presumed to be innocent. It is relevant to record, given his plea, that he is also presumed to be sane. The presumption of innocence is rebutted if and only if the Crown proves the essential elements of the charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental illness defence on the balance of probabilities, a much less exacting standard of proof.

24. The elements of murder which the Crown must establish in the present case to prove the accused’s guilt are that by his voluntary, or deliberate act of stabbing Mr Liu, neither in self-defence nor by extreme provocation, the accused caused Mr Liu’s death, with intent to kill him. Given the nature of his acts the consideration of a lesser intent can safely be put aside.

25. Particular considerations apply to this case because the accused has raised mental illness as a defence: Hawkins v The Queen [1994] HCA 28; 179 CLR 500 (“Hawkins”); R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 (“Minani”) at [32]. Those considerations relate to the order in which the issues are required to be approached.

26. In Minani at [32] Hunt A-JA summarised the position following Hawkins as requiring the issues to be approached in this order:

“…the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused’s act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one.”

27. The first issue then is whether the stabbing of Mr Liu was a deliberate act. Mental illness is irrelevant at this stage. In truth there is no issue about this. Criminal trials are not only accusatory, they are also adversarial in nature and, there is no issue that the actions of accused stabbing Mr Liu were willed and voluntary. On the evidence it could hardly be otherwise. It will still be necessary for me to say something about the facts and their aftermath because they inform the decision about the second issue.

28. The second issue is whether the accused is criminally responsible for the consequences of his actions. This involves resolution of the mental illness defence.

29. Once again, there is no issue that the accused suffered from a mental illness at the time he killed Mr Liu. On the evidence of each of the two psychiatrists called he probably had suffered that illness for some years previously, and ever since. He has received some psychiatric treatment since going into custody, following a suicide attempt. That treatment has included for a time the prescription of anti-psychotic medication. But it seems Justice Health has not made the diagnosis reached by the experts in this case. I will say more about this below. It seems that he still lacks insight into his condition which may be the case indefinitely. In lay terms, the real issue is whether his condition at the time of the killing was severe enough to satisfy the elements of the legal defence.

30. The mental illness defence is governed by the Mental Health (Forensic Provisions) Act 1990 (NSW) (“Forensic Provisions Act”). Section 38 provides for what is referred to as a “special verdict” if the accused person is not guilty by reason of mental illness. This is a third category of available verdict in addition to verdicts of “guilty” or “not guilty”. It is important to understand that the legal consequences which follow a special verdict “are quite different from those which follow a plain verdict of not guilty on the ground that [the accused] did not do the things charged”: The King v Porter (1933) 55 CLR 182; [1933] HCA 1 (“Porter”) at 185. In the event I return a special verdict, subject to the provisions of the Forensic Provisions Act, the accused will not be “completely free” to re-enter the community.

31. If I return a special verdict, I am empowered to order that the accused be detained “in such place and in such manner” as I think fit “until released by due process of law”: s 39 Forensic Provisions Act. It is important to understand that I am not authorised to release the accused into the community unless I am satisfied that his safety and the safety of any member of the public will not be seriously endangered by his release: s 39 Forensic provisions Act. A decision that he be detained in custody means that he will be a forensic patient under the supervision of the Mental Health Review Tribunal, which will review his case periodically and make orders for his continued detention, care and appropriate treatment. The Tribunal may not release the accused unless it is satisfied as required by law about his safety and the safety of members of the public. And it may only do so after it has given the Minister for Health and the Attorney General prior opportunity to make submissions about his possible release. The Tribunal will be bound to review the accused’s case, at least every six months. It is composed of a President who is, was, or would be qualified to be, a Judicial Officer, a psychiatrist or psychologist, and a third member drawn from the community with appropriate qualifications and experience. Importantly, in this case, whilst under its supervision, the Tribunal may make orders for the accused’s continued detention, care or treatment in a hospital or prison.

32. I emphasise that the return of a special verdict will not mean that the accused has not perpetrated what is the greatest wrong that may be committed according to the ordinary standards of reasonable people. Rather the law will not attribute criminal responsibility to him for killing Mr Liu by reason only of his mental illness.

33. Not every case of mental illness is sufficient to satisfy the requirements of the mental illness defence absolving a person from criminal responsibility, as Dixon J (as the Chief Justice then was) pointed out as long ago as 1933 (in Porter at 187):

“(The criminal law) attempt[s] to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person’s property, capacity to make a will, and the like.”

34. As I say, the applicable civil standard of proof of is less exacting than the normal criminal standard, but the necessary elements of the defence are not easily satisfied. The legal requirements of the defence have been established since 1843: R v M’Naghten (1843) 8 ER 718 (“M’Naghten”) in the following terms:

“… 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 quality and the nature of the act he was doing; or if he did know it that he did not know what he was doing was wrong.”

It is necessary for me to focus on that short period of time during which the accused attacked and killed Mr Liu. Even so, past and subsequent events may cast light on this.

35. There is no issue in terms of the M’Naghten Rules that “the accused was labouring under a defect of reason from disease of the mind”. I have already said that the psychiatrists agree on the diagnosis. To adopt Professor Greenberg’s formulation of it the relevant disease is a Chronic Delusional Disorder with treatment resistant delusions (51.23 - 25T); (Ex L). I accept the evidence of Professor Greenberg and Dr Teoh that the accused maintained the capacity to know the nature and quality of his actions.

35. The focus therefore is upon M’Naghten’s so-called second limb whether the “defect of reason” the accused “was labouring under” was “such … as … he did not know what he was doing was wrong”. Both experts would answer this question in the affirmative (Professor Greenberg Ex L, page 14; Dr Teoh Ex 1B, page 3).

36. The issue which perhaps distinguishes this case from some others is that both experts are of the opinion that the accused knew at the time he stabbed Mr Liu that his act was contrary to law. (Professor Greenberg Ex L page 14; Dr Teoh Ex 1B page 3). This is not an entirely unprecedented, or even unusual, circumstance: R v Pratt [2009] NSWSC 1108 at [35], RA Hulme J.

37. In R v Rodrigues [2010] NSWSC 198 (“Rodrigues”) Johnson J summarised the effect of the Australian authorities in the following way at [33]:

“A person does not know what he was doing was wrong when he does not know that it is wrong according to the ordinary standards of right and wrong adopted by reasonable persons, or when he cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing”. (Citations omitted).

Wrong in this context is concerned with what is morally wrong and the test is whether the accused appreciated that his act was wrong according to the ordinary standards adopted by reasonable people; not whether he was capable of understanding his act was contrary to law: Stapleton v R (1952) 86 CLR 358 (“Stapleton”) at 375.

39. There are some statements in Stapleton, however, which suggest to me, at the very least, that in cases where the accused is said to know his act was contrary to law, but was unable to distinguish right from wrong morally the expert evidence should be carefully scrutinised before satisfaction is reached on the civil standard that the defence has been made out. At 370 - 371 the Court said:

“The critical thing in the traditional test was capacity to distinguish right and wrong that is of course in reference to the act committed. In cases of murder the difference between capacity to understand the wrongness and the legality of the act often might not be of much significance. But in a case like Hadfield's it might be decisive. For Hadfield's mania led him to do the very act for the purpose of causing others to take his life by judicial process.”

The reference to Hadfield’s case is a reference to the trial of Hadfield for the attempted assassination of George III: (1800) 27 State Trials 1281. Lord Kenyon CJ directed his acquittal on the grounds of insanity.

40. After referring to some unsatisfactory aspects of Lord Reading CJ’s judgment in R v Codere [1916] 12 CR App R 21, the Justices in Stapleton said (at 375):

“This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity), he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law”.

This passage from Stapleton suggests that where the evidence demonstrates that the accused retains an appreciation that his act was contrary to law, the evidence does not satisfy the M’Naghten test even to the civil standard unless the tribunal of fact is satisfied the commission of the otherwise criminal act arose “from complete incapacity to reason as to what is right or wrong” (my emphasis). In assessing the evidence in the light of this, it will need to be borne in mind that the relevant time for adjudging the state of mind of the accused as it is at the time of the commission of the act not before or after. As always, however, evidence about his conduct before and after may inform a decision about his state of mind at the relevant time. I make this observation because the opinion of the experts about the accused’s appreciation that his acts were contrary to law seem to arise solely from the admissions made to police at the time of and after his arrest that I have recounted above.

41. Bearing those legal principles in mind together with the important consideration that the two experts are of the one mind, it is apposite to direct myself, as Johnson J pointed out in Rodrigues at [45], that the Court is not bound to accept and act upon expert evidence, but nor may it be disregarded capriciously. Unanimous expert opinion ought only be rejected where there is evidence which casts doubt upon its reliability, say because the assumptions upon which the opinions are based do not accord sufficiently with the facts proved by the other evidence.

42. Given the adversarial nature of criminal trials it is very important to bear in mind that the expert evidence was not challenged by either party. Indeed, the learned Crown Prosecutor, as I have stated, argues, together with Mr Ozen that the defence has been made out. This is a powerful consideration. Even so, given that the sanctity of human life is a fundamental community value upheld and bolstered by the criminal law, it remains important to review the evidence to consider whether it actually persuades me, on the balance of probabilities, that the defence has been established. The wrongful taking of life requires retribution, denunciation and vindication of the injury suffered by the community and the victim’s family. These objects can only be achieved when offenders are convicted and punished. The taking of Mr Liu’s life is beyond the reach of this principle only if the mental illness defence is made out.

43. In reviewing the evidence, I will bear in mind the dictum of Walsh J in R v Jenkins (1963) 64 SR (NSW) 20 at 31 that if it is shown that the two doctors not only come to the same conclusion but provide like reasons for it which “clearly lead to that conclusion … the right decision … must be that the defence has been made out”.

44. For completeness, I record that if I am not satisfied that the mental illness defence has been made out, it will be necessary to go on to consider the question of whether the accused intended to kill Mr Liu when he stabbed him. The answer to that question will be informed by his mental illness, even if it does not rise to such a level as to support the mental illness defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental illness supports the partial defence of substantial impairment provided by s 23A Crimes Act 1900 (NSW) reducing murder to manslaughter. Again, the onus on this last issue rests upon the accused, but only to the civil standard.

Voluntary Act

45. I am satisfied beyond reasonable doubt that the act of stabbing Mr Liu was a deliberate or voluntary act by the accused and that his act caused Mr Liu’s death. This finding was not in contest in the proceedings. The finding is amply supported by the considerations that: the accused formed the intent to kill Mr Liu while at work earlier that day; he left work early for that purpose; travelled to Campsie where he purchased a knife; sought Mr Liu out to carry out this purpose; and when they met he stabbed Mr Liu 27 times in the most vigorous, violent and frenzied manner. Later he inquired of officers whether Mr Liu had died, and made the admissions I have set out above.

Facts underpinning the expert evidence

46. On the history received by Professor Greenberg, the accused and Mr Liu had been associated since about 2005. It might be said that the age difference was such that Mr Liu could have been the accused’s father. The accused referred to him as Uncle No. 2. The accused said that they met through their participation in an organised criminal group involved in credit card fraud. This history is supported by the evidence that Mr Liu served a prison sentence for credit card fraud for a period possibly around 2010 (9.35T, Ms Hao). There were issues between them apparently relating to the accused’s recompense. They seem to have renewed their association after Mr Liu’s release from prison.

47. There is no documented history of mental illness in the accused prior to his arrest. However, on the history given to Professor Greenberg his symptoms seemed to have commenced around 2011. He was viewing pornography downloaded to his laptop. He alleges that the AFP hacked into his laptop while he was viewing the pornography. He said he knew this because a small window showing a porn star named Jasmine opened in the corner of the screen during his viewing. This occurred on each occasion that he opened a new page on these sites. From this the accused drew the conclusion that the AFP had hacked his computer. The accused claimed on one such day he received a phone call from a person who claimed to be Jasmine. He hung up immediately, but regarded this as proof that the AFP had hacked into his computer.

48. It may be that law enforcement agencies have the capacity to hack citizens’ computers when acting under lawful authority and they may have reason to seek that authority in relation to a person engaged in organised crime. However, there is no reason to suppose that what the accused says he saw on his computer is evidence of lawful, or unlawful, activity by the AFP. It is much more likely to be the inception of paranoid persecutory delusions, as the experts say.

49. From this inception the delusional belief system seems to have grown over the years. He developed a conviction that the AFP had reported to his employer that he watched pornography. He developed the conviction that he was being followed by an AFP patrol car. His delusions developed further into the belief that when he was viewing pornography on the internet he was “a decoy” for the AFP. He claimed to have discovered that the AFP and the intelligence services of the United States, United Kingdom, New Zealand, Canada and Australia, the so called five eyes, were monitoring Chinese girls and women for sex. He told Professor Greenberg they were “committing cyber-sex crimes against Chinese girls and women.” He determined to expose this activity to the Chinese government and enlisted the assistance of Mr Liu, originally a Chinese native. He said he paid Mr Liu for photographs of Chinese women having sex with western men as evidence.

50. The accused enlisted the assistance of Mr Liu to write letters to Chinese authorities to expose what had been happening, attaching the photographs as evidence. By this means Mr Liu became incorporated in his delusion. He came to regard Mr Liu as having cheated him, perhaps in relation to the money he paid for the photographs, but certainly by denigrating him in the letters he wrote to Chinese authorities on behalf of the accused. As I have said earlier, the accused considered being referred to in those letters as Vietnamese was something that would lessen his status in the eyes of Chinese authorities and he was resentful of that. He claimed that he and Mr Liu argued about this to the extent where Mr Liu was yelling and screaming at him. From this the accused formed the impression Mr Liu was going to kill him. Ruminating about these “offences” committed against him by Mr Liu his mind snapped at work on the 23 November 2016 and he determined upon the course of action which ended in Mr Liu’s death.

The possibility of malingering

51. This history sounds of itself sufficiently bizarre to justify the description adopted by the experts of fixed paranoid delusions. However, in cases of serious crime, one has to be mindful of the possibility that a person will feign mental illness to avoid a conviction and a heavy sentence. However, I am satisfied on the evidence that the accused is not malingering. Professor Greenberg said he considered the possibility of malingering, but was “fairly convinced that he had a persecutory … paranoid delusional disorder” (49.45T). He relied upon a body of independent evidence to reach that conclusion which I summarise below.

The expert evidence

52. The reliability of the expert psychiatric evidence depends upon the validity of the assumptions they have made about the accused’s medical history, and the reliability of the accounts he gave them. Their interpretation of the accused’s past medical history from the documents they were asked to inspect substantially accords with the findings I have made.

53. The independent evidence includes case notes relating to the attendance of the accused at the AFP headquarters in Sydney on 12 February, 27 February and 18 March 2014. Initially he wished to speak to an officer he had met some years ago when he provided information in relation to a shooting. On the second visit he revealed that he wished to speak about a lack of police transparency in relation to a pornography matter. The officers may have fobbed him off because the “incident” occurred in New South Wales, and was therefore a matter for New South Wales police. At the third meeting he revealed the full history about viewing pornography, the porn star window, the phone call and his belief that his laptop was being monitored by New South Wales police and the AFP. He also complained about police interfering and disrupting his employment. He, in substance, revealed the full extent of his paranoid and persecutory thinking about the AFP interfering in his life more than two years before the killing.

54. The second important corroborative factor from Professor Greenberg’s point of view was the evidence of an attendance on a Dr Jessica Lee on 16 September 2014. He complained he had been assaulted by a co-worker who was an undercover police officer. He complained of insomnia, nightmares and suicidal thoughts and was referred to a psychologist. This, of course, suggests some contact with the medical profession for mental health issues.

55. Of considerable importance to Professor Greenberg (50.5 - 50.45T) were the record of the exchange of text messages between the accused and Mr Liu. These disclose both his sense of betrayal by the deceased and the full extent of his delusional thinking about his attempts to expose western law enforcement’s cyber-sex crimes against Chinese women. From these messages, it is clear he also feels extremely let down, to say the least, that the Chinese government has not acted upon his warning. It is not necessary to set out either the evidence of Professor Greenberg in detail or the content of all of the text messages. Their significance is that they provide powerful corroboration of, if I may put it this way, the genuineness of the accused’s delusional symptoms. One example will suffice. On 20 November 2016, three days before the killing, the accused sent this message to Mr Liu. It is necessary to quote it verbatim including its profane and offensive content:

“Xi Jinping knows it is War. But he wont let the Chinese people in all the World know it is War. So he let the AFP, AMERICA, ENGLAND allies FUCK the CHINESE WOMAN, PEOPLE and Chinese People don’t know Anything. Me and You, we try to help the CHINESE know the AFP, ENGLAND is FUCKING the CHINESE, and its WAR. But BEIJING DOG Xi Jinping wont let the Chinese people know anything.”

56. I accept the evidence of Professor Greenberg that the accused genuinely holds the thoughts he was reporting and there was nothing in the material to suggest he was a malingerer (55.15T).

57. I return to the fact that since he has been in custody he was for a time treated with anti-psychotic medication by Justice Health. He came to their attention after he attempted to commit suicide by cutting his jugular and the veins in his wrist. Initially this attempt was put down to the stress of incarceration. However, he came under psychiatric care by Justice Health. Apart from one report in February 2017 of being betrayed by people around him and also the government and police there was no disclosure of any psychotic symptoms. I interpolate Professor Greenberg did not think the failure of the accused to disclose his psychotic thinking to Justice Health was inconsistent with the diagnosis he had made. In oral testimony, Professor Greenberg referred to the accused’s delusional belief system being “encapsulated” (46.5T). He added:

“When I say encapsulated, that is important because, encapsulated means that unless you ask the right question, unless you specifically ask him a question about his belief system, he appears fairly intact, fairly normal, able to go to work, function. It is only when you push the right button on the keyboard and ask him a specific question about his belief system, his persecutory belief system, does all this psychotic belief system come out.”

Dr Teoh was of the view that a person suffering from a delusional disorder can often keep the delusions to themselves and not express them spontaneously (62.35T).

58. The failure of Justice Health psychiatrists to make the same diagnosis as Professor Greenberg and Dr Teoh does not displace, in my judgment, the opinion of the experts that the accused is not malingering.

59. I accept the opinion of each of Professor Greenberg and Dr Teoh that when the accused attacked Mr Liu with the knife he was labouring under a disease of the mind, namely a Chronic Paranoid Delusional Disorder with treatment resistant delusions. I am satisfied on the balance of probabilities that this condition manifested itself in a defect in reason such as the accused did not understand that his actions were wrong according to the standards of ordinary reasonable people in our community.

60. This conclusion in my judgment is supported by the objective corroborating evidence to which I have referred. I have reached this conclusion not only because that is the view formed by each of Professor Greenberg and Dr Teoh but on my own assessment of the evidence.

Determination

61. These findings may be sufficient for me to conclude that the accused has made out the mental illness defence. To the extent to which it may be necessary to find that the accused’s actions arise “from complete incapacity to reason as to what is right or wrong” I refer to the following matters which I accept: first, Professor Greenberg said unless the capsule of the paranoid delusional thoughts is opened there may be “nothing really outwardly seeming abnormal” (48.15T). He said it’s only when that belief system is in his thoughts and he acts on it that “he seems outwardly bizarre as at the time of the offence itself” (48.25T). He referred to the accused’s whole belief system as “just bizarre” (57.30T). He expanded on the outward bizarreness of the act itself by saying:

“At the time of the actual stabbing, obviously it is a frenzied, very violent act in a public forum, where obviously he was quite angry.” (58.5T).

62. Secondly, I asked Dr Teoh about the tension between being aware of the legal nature of his acts, but unaware of their moral quality. In part his answer was as follows (64.45T):

“… a person with delusions, they can carry out very complicated tasks, including working at high level jobs, but at the same time they have this encapsulated delusions and when it is triggered the judgment is completely impaired because they can't tell what is real and what is not real, so I think in this case, he had committed a crime based on the delusion lost touch with reality and committed a murder. So at that point his judgment was completely impaired, driven by a very serious illness, the disease of his brain, that made him lose touch with reality, but once he got out of that delusion everything else was real to him and he was able to behave like any other normal person. At that point I think he knew that he committed a serious crime.” (Emphasis added.)

63. This evidence satisfies me that at the very time he attacked Mr Liu, his moral judgment was completely impaired, which adequately explains the difference between his conduct before and after from his conduct when killing Mr Liu. It also explains the apparent tension between knowing his conduct was contrary to law, but being unaware of its moral quality. I am satisfied the case falls into that category “where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong” at the time of the act notwithstanding an awareness that the act he proposes is punishable by law as discussed in Stapleton.

64. The accused has made out, on the balance of probabilities, the mental illness defence. I am satisfied that at the time the accused killed Mr Liu he suffered from a disease of the mind giving rise to a defect of reason such as he did not know that what he was doing was wrong according to the accepted standards of ordinary members of the community.

Orders

65. It follows from this finding that I will deliver a special verdict of not guilty of the murder of Mr Liu by reason of mental illness. This conclusion makes it unnecessary to consider the issue of intention or the alternative defence of substantial impairment. Before proceeding to pronounce orders, I wish to make some additional comments. I fully appreciate that Mr Liu was an entirely innocent victim of a brutal and frenzied attack born of a diseased and deluded mind. He did not deserve to die. I offer my sincere condolences to his family who have been present in Court throughout the trial. I appreciate that my words cannot salve their sorrow, grief and sense of loss.

66. As I said at the outset, a special verdict is not the same as a verdict of not guilty. The accused may not walk free from this Court. It is apparent to me from the evidence I have heard that his disease is far from cured. Indeed, it seems that those who have been responsible for his treatment in custody have not, with respect, adequately diagnosed it. Moreover, from the evidence of Professor Greenberg and Dr Teoh, his condition is somewhat treatment resistant. I accept that this is hardly surprising given that by the time he first received any anti-psychotic medication in prison his deluded paranoid belief system had been entrenched for many years. I also accept the evidence of Professor Greenberg and Dr Teoh that given this consideration he yet presents a danger to the community and possibly to himself given the earlier history of suicidal ideation in 2014 and the attempted suicide while in custody.

67. In these circumstances there is not the slightest question of it being appropriate to release the accused into the community. I am not satisfied that he does not present a danger to others or to himself. Accordingly the effect of my order will be that the accused will be committed to the long term supervision of the Mental Health Review Tribunal. Pursuant to s 43(a) of the Forensic Provisions Act, the Tribunal may not release the accused into the community unless and until it is satisfied that he will not seriously endanger any person including himself and not without providing notice to the relevant Ministers.

68. My orders are:

1. Under s 38 Mental Health (Forensic Provisions) Act 1990 (NSW), I return a special verdict of not guilty of the charge of murder by reason of mental illness;

2. Under s 39 of the Act Lung Lieu 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 the Registrar to notify the Minister for Health of these orders;

4. I direct the Registrar to notify the Mental Health Review Tribunal of my special verdict and of these orders. The Registrar is to provide the Tribunal with a copy of these reasons, my orders and the transcript of evidence and reports of Professor Greenberg and Dr Teoh.

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Decision last updated: 20 April 2018