R v Mavin - [2023] NSWSC 455

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Mavin [2023] NSWSC 455
Hearing dates: 17-20 April 2023
Date of orders: 2 May 2023
Decision date: 02 May 2023
Jurisdiction: Common Law
Before: Campbell J
Decision: (1) In relation to count 1, my verdict is a special verdict of the act of attempting to rob the 7-Eleven at Sandgate Road, Shortland is proven, but Zack Mavin is not criminally responsible;
(2) In relation to count 2, my verdict is a special verdict of the act of fatally stabbing Robert Palmer is proven, but Zack Mavin is not criminally responsible;
(3) Under s 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Zack Mavin is referred to the Mental Health Review Tribunal;
(4) Under s 33 of the said Act, order that Zack Mavin is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until his release by due process of law;
(5) Direct that a copy of these reasons and of the evidence of Dr Allnutt and Dr Nielssen be forwarded to the Registrar of the Mental Health Review Tribunal;
(6) Direct that media organisations who have duly applied may have access to Exhibit G, the recording of Zack Mavin’s record of interview.
Catchwords:
CRIME — the accused’s diagnosis of schizophrenia was not in dispute — whether the accused was entitled to the mental health impairment or cognitive impairment defence — whether the accused could reason with a moderate degree of sense and composure regarding the wrongfulness of his acts — the application of the mental impairment defence required consideration of the circumstances as a whole — held because of symptoms of his schizophrenia the accused could not reason with a moderate degree of sense and composure for the aggravated attempted armed robbery count and the murder count
CRIME — attempted armed robbery with an offensive weapon — bizarre modus operandi in the execution of the robbery and in the accused’s behaviour throughout, before and after the attempted robbery
CRIME — murder — following an altercation the accused used a knife to fatally stab the deceased — whether this conduct could be separated from his schizophrenia such that he was not entitled to the mental health impairment defence — held the attack on Mr Palmer was a product of the accused’s psychosis

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28

Cases Cited:
The King v Porter (1933) 55 CLR 182; [1933] HCA 1
R v M’Naghten (1843) 8 ER 718
Carter v R [2019] NSWCCA 11
R v Rodrigues [2010] NSWSC 198
Stapleton v R (1952) 86 CLR 358
R v Jenkins (1963) 64 SR (NSW) 20
The King v Porter (1933) 55 CLR 182; [1933] HCA 1
Alford v Magee (1952) 85 CLR 437
Hawkins v The Queen (1994) 179 CLR 500
Jones v Dunkel (1959) 101 CLR 298

Category: Principal judgment
Parties: Rex (Crown)
Zack Mavin (Accused)
Representation:
Counsel:
C Young (Crown)
P Rosser KC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
John Anthony Solicitors (Accused)

File Number(s): 2020/352643

Category:

Principal judgment

Parties:

Rex (Crown)

Zack Mavin (Accused)

Representation:

Counsel:

C Young (Crown)

P Rosser KC (Accused)

Solicitors:

Office of the Director of Public Prosecutions (NSW) (Crown)

John Anthony Solicitors (Accused)

File Number(s):

2020/352643

JUDGMENT

When re-arraigned at the commencement of this trial Zack Mavin, the accused, adhered to the pleas of not guilty he had entered on 1 July 2022 before Wilson J to each of two counts on the indictment substantially in the following terms:

1. That on 12 December 2020, at Shortland in the State of New South Wales, being armed with an offensive weapon, namely an improvised incendiary device, attempted to rob Amit Garg of cigarettes and money, the property of 7-Eleven, Shortland; and
2. That on 12 December 2020, at Shortland in the State of New South Wales he murdered Robert Palmer.

Given the pleas it was necessary for the accused to stand trial.

General legal principles

On 21 February 2023, I made an order pursuant to s 132 Criminal Procedure Act 1986 (NSW) that this trial be conducted by a judge alone. Section 133 of that 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.
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 as is relevant to those real issues: Alford v Magee (1952) 85 CLR 437; [1952] HCA 3 at 466. Notwithstanding his plea of not guilty to each charge, it has been made clear from the outset that the central issue in the trial is whether the accused has established what is referred to as the mental health impairment defence.
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 the central issue, 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 each charge beyond reasonable doubt. It is for the accused to rebut the presumption of sanity by establishing his mental health impairment defence on the balance of probabilities, a much less exacting standard of proof.
The mental health impairment defence is governed by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“Forensic Provisions Act”), and in particular s 28, which replaced the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW). Part 3 of the Forensic Provisions Act provides for the defence of mental health or cognitive impairment. Section 4 defines a ‘mental health impairment’ in terms which include a psychotic disorder: s 4(2)(c) Forensic Provisions Act. Section 30 provides for what is referred to as a “special verdict” of act proven but not criminally responsible. I instruct myself that I must return the special verdict in relation to either charge if I am satisfied that the defence of mental health impairment or cognitive impairment has been established in respect of it. This is a third category of available verdict in addition to verdicts of “guilty” or “not guilty”.
Before the enactment of the Forensic Provisions Act, the “Special Verdict” was to be expressed in terms that the accused person was “not guilty by reason of mental illness”. The change is significant. It emphasises that the prosecution has proved that the accused person committed the actus reus of the offence charged which provides some vindication to the victims and family victims involved. The present formulation emphasises that it is only by reason of mental impairment that the accused is to be regarded as not criminally responsible. The new formulation also bolsters the strength of a verdict of not guilty when delivered, vindicating an accused’s innocence.
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 at 185 (“Porter”). 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.
The Forensic Provisions Act clarifies and refines the test for the mental health impairment and cognitive impairment defence provided for under former statute which picked up the pre-existing the common law. The test is now prescribed by s 28 Forensic Provisions Act. The test is met by satisfying either of two limbs. That is, if the person had either, or both, a mental health and cognitive impairment that had the effect that the person: did not know the nature and quality of the act (first limb) or did not know the act was wrong (second limb): ss 28(1)(a) and (b). As I have said, unless and until the contrary is proved, it is presumed that a defendant did not have a mental health or cognitive impairment that had that effect: s 28(3) Forensic Provisions Act.
In this case, only the second limb is at issue. It is common ground that the accused knew the nature and quality of each act forming the actus reus of each charge. Paragraph 28(1)(b) creates the defence if it is established that a mental impairment had the effect that the accused did not know that the act was wrong. It is settled legal principle that “wrong” means morally wrong, rather than “against the law”. By the express words of the provision, this is shown if it is proved that the accused could not reason with a moderate degree of sense and composure about whether the act forming an element of the charge, as perceived by reasonable people, was wrong.
Paragraph 28(1)(b) now embeds in the statute the common law principle expressed by Dixon J in the following terms in Porter (at 189–190):

The question is whether [the accused] was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he 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 is wrong having regard to the everyday standards of reasonable people. (emphasis added)

I instruct myself that it is the statutory text itself (s 28(1)(b)) that operates. However, the pre-existing common law remains relevant context in understanding and applying the test that Parliament has entrenched in the statute. But it is by reference to the terms of the Forensic Provisions Act that I am to consider whether the accused meets the mental health impairment defence.
If I return a special verdict, I am empowered to make a number of orders, including that the accused be detained “in [such] place and manner” as I think fit “until released by due process of law”: s 33(1)(b) 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 33(1)(c) and (3) 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: ss 34, 72, 78 Forensic Provisions Act. The Tribunal may not order the release of the accused unless it is satisfied as required by law about his safety and the safety of members of the public by independent expert evidence other than experts responsible for the treatment and management of the accused’s condition: s 84 Forensic Provisions Act.
The Tribunal will be bound to review the accused’s case, at least every six months. It is constituted by three members: the President who is a judge or former judge, or a person qualified to be a judge; a second member who is either a psychiatrist or psychologist; and the third member who is a person drawn from the community with appropriate qualifications and experience. Importantly, while he is under its supervision, the Tribunal may make orders for the accused’s continued detention, care or treatment in a hospital or prison. If the Tribunal decided in accordance with the statutory regime that it was appropriate and safe to release the accused, it has power to make that decision subject to a range of conditions as it sees fit, for example by appointing professional care workers for the accused’s care, conducting periodic reviews, and making orders regarding medication, accommodation and living conditions: s 85 Forensic Provisions Act.
While reminding myself of the effect of a special verdict, if that is the result, it is also appropriate to point out that by s 156 of the Forensic Provisions Act a victim’s register is required to be established. By s 157 victims, including family victims of a deceased, if registered, are entitled to receive notification of significant developments in the course of the Tribunal’s management of a forensic patient. This enables the family victims to be informed of the present status and condition of the forensic patient and to make submissions to the Tribunal in review proceedings involving the forensic patient. Family victims ought to take comfort from the fact that if they choose to register, their views will at least be considered by the Tribunal when it exercises its powers.
Section 33(2) Forensic Provisions Act empowers me to delay final orders after the entry of a special verdict to enable new and independent evidence to be obtained assessing whether the accused’s release is likely to seriously endanger his safety or the safety of any member of the public, a matter to which I will return.
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 Palmer and for the attempted robbery of the 7-Eleven by reason only of his mental health impairment.
Not every case of mental health impairment is sufficient to satisfy the requirements of the mental health impairment defence absolving a person from criminal responsibility. As Dixon J pointed out as long ago as 1933 (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.

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 defence has been known to the common law for centuries and its legal elements were settled as long ago as 1843 in R v M’Naghten (1843) 8 ER 718 (“M’Naghten Rules”) 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 attempted to rob the 7-Eleven and had an altercation with and fatally stabbed Mr Palmer. Even so, past and subsequent events may cast light on these matters.
There is no issue in terms of the M’NaghtenRules that “the accused was labouring under a defect of reason from disease of the mind”. Working through the legal elements of the defence, the experts agree, and in my view the other evidence supports their conclusion, that at the time the accused attempted to rob the 7-Eleven and stabbed and killed Mr Palmer, he suffered from a disease of the mind, namely Paranoid Schizophrenia. That is a most serious form of a psychotic disorder (Dr Allnutt at T57.10-.22). The accused therefore had a mental health impairment for the purpose of s 4 Forensic Provisions Act.
Thus, the only issue for me to decide is whether when he stabbed Mr Palmer the accused did not know what he was doing was wrong: s 28(1)(b).
Button J (in Carter v R [2019] NSWCCA 111 at [300]) has recently explained:

The defence of mental illness can be established if a person fails to understand, in a deep and considered sense, the moral wrongfulness of his or her acts.

The consideration that the accused may have appreciated the illegality of his actions, but not their moral quality raises a requirement for particular care in the decision-making process. The distinction between legal and moral wrong is familiar enough to the criminal law: R v Pratt [2009] NSWSC 1108 at [35] (RA Hulme J). 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, therefore, is concerned with what is morally wrong and the test is whether the accused could appreciate 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; [1952] HCA 56 (“Stapleton”) at 367, 375. In Stapleton, the Justices may be taken as having suggested that in “cases of serious crime,” which this undoubtedly is, “the two ideas are not easily separable” except in cases of “complete incapacity”. But this was not a statement of principle, rather it was a general observation of the difficulties in practical application of the principle in some cases. That this statement is not a formulation of principle is demonstrated by the recent decision of the Court of Criminal Appeal in Masters v R [2022] NSWCCA 228, a case to which the Forensic Provisions Act did not apply and therefore the common law did. Lonergan J (Brereton JA and N Adams J agreeing) adverted to the risk of overstating the rigour even of the common law test (at [146]):

‘[the test] does not require that the accused be “disabled” or “quite incapable”. It suffices that by reason of the disease of the mind the accused cannot reason with some moderate degree of calmness in relation to the moral quality of what he is doing so that he does not know that what he is doing is wrong. This involves a lack of ability to reason with moderate composure, not a total incapacity to recognise that the conduct is wrong.’

This statement is even more apposite now given the express language of s 28.

It is convenient to refer now to the following passage in Masters v R which is also pertinent because of how the expert evidence unfolded at this trial, to which I will later return (at [161]):

‘There did not need to be proof of a specific identified persecutory delusion in operation which drove the appellant’s actions and led to the situation that he could not reason about the matter with a moderate degree of sense and composure and understand the moral wrongness of his actions. It was the schizophrenia and its constellation of symptoms that he was suffering that were affecting the appellant at the time he drove into [the deceased’s] car. Those symptoms were persecutory delusions, thought disorder, disorganised behaviour and distress.’

I should emphasise however that the test is not whether the accused was impaired by his undisputed schizophrenia when he attempted to rob the 7-Eleven and later fatally stabbed Mr Palmer. The test is whether his schizophrenia had the effect that he did not know his action in each case was morally wrong. That is, whether because of his schizophrenia he lacked the ability to reason with a moderate degree of sense and composure?

As I will make clear, at least in respect of the attempted robbery count, the expert psychiatrists who were called to give evidence on this issue were of one mind. It is accordingly 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 to 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.
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, indeed, been established. The wrongful taking of life ordinarily and emphatically 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 Palmer’s life is beyond the reach of this principle only if the mental impairment defence is made out.
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 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”.
If I am not satisfied that the mental health impairment defence has been made out in respect of count 2, it will be necessary to go on to consider the question of whether the accused intended to kill or really seriously injure Mr Palmer when he stabbed him. The answer to that question will be informed by his mental health impairment, even if the impairment does not rise to such a level as to support the mental health impairment defence. If I am satisfied beyond reasonable doubt that he had that necessary intent, a final question will be whether his mental health impairment 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 to the civil standard.
The two separate counts on the indictment have been tried together as a matter of procedural convenience as there are common issues and witnesses and events involving the same accused occurred in circumstances of temporal and spatial proximity. However, it is necessary for me to consider each charge separately. I must not assume that a particular verdict in one demands the same verdict in the other. This does not mean the one item of evidence may not be relevant to proof in both counts.
As the prosecution correctly submitted, the raising of the mental impairment issue in this case requires me to approach my decision in a particular order. It has been pointed out in cases of high authority that there are two basic questions in a criminal trial. They are “What did the accused do and is he criminally responsible for doing it?” And “those questions must be resolved … before there is any issue of the specific intent with which the acts are done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed”: Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 at 517. If the mental impairment issue is decided adversely to the accused, it is then necessary to consider the issue of intent relevant to each count in the indictment separately. For the purpose of that enquiry, bearing in mind the prosecution carry the onus beyond reasonable doubt, a medical condition falling short of that necessary for the establishment of the mental impairment defence remains relevant for the purpose of determining the issue of intent. Finally, in respect of count 2, as I have said, it may be necessary as a final question to determine whether the partial defence of substantial impairment is available to the accused bearing in mind that he carries that onus too.
As both the question of mental impairment, on the one hand, and intent, on the other, involve an enquiry into the state of the accused’s mind at the time of the performance of the actus reus for each charge separately, the resolution of those questions, on the balance of probabilities, will involve the drawing of inferences. No one can see directly into the mind of another. As the mental impairment defence is to be determined on the balance of probabilities, to discharge this onus, the accused must point to evidence supporting a positive inference arising as an affirmative conclusion from circumstances proved in evidence, to the reasonable satisfaction of a judicial mind. The inference for which the accused contends need only raise a more probable inference in favour of the availability of the mental impairment defence. This means more than giving rise to conflicting inferences of equal degrees of probability. What is necessary is that according to the course of common experience the more probable inference from the circumstances proved from the evidence is that by reason of his mental impairment at the time he performed the act said to constitute each offence, the accused did not know his act was morally wrong. All that the balance of probabilities requires is that that inference might reasonably be considered to have some greater degree of likelihood than any competing inference which may otherwise be available on the evidence: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 305.
However, so far as the intent necessary for proof of the mental element of each count on the indictment is concerned, as the prosecution carries the onus to the criminal standard of beyond reasonable doubt, it is necessary that the requisite specific intent for each offence be the only rational inference available from all of the circumstances proved to my satisfaction by evidence I actually accept.
As I have said, the first question is whether the prosecution prove beyond reasonable doubt that the accused performed the acts constituting the actus reus for each of count 1 and 2. In truth, there is no dispute about this issue, but it is necessary that I make the necessary findings as they are of themselves relevant to the remaining issues.
The elements of the first count, the attempted robbery, are to be found in ss 97(1) and 344A(1) of the Crimes Act. It is not necessary to set out these provisions in full for present purposes. Nor is it necessary to embark upon any exposition of the law of attempt. It is clear on the evidence which I accept that the accused undertook all actions necessary to constitute an attempted armed robbery. He failed in his attempt only because Mr Garg, the console operator at the 7-Eleven refused to hand over either cigarettes or money. Having said that, the elements of the offence are while armed with an improvised incendiary device, the accused attempted to rob Mr Garg of money and cigarettes, the property of 7-Eleven. At this stage, I am not concerned with the necessary mental element to complete the offence. However, the mental element is constituted by the specific intent to rob.
The elements of the offence of murder are to be found in s 18 Crimes Act. So far as is relevant to the case at hand, murder shall be taken to have been committed where the act of the accused causing the death charged and was done with the intent to kill or inflict grievous bodily harm upon a person, not necessarily the deceased. As I have said already, the element of intent should be put to one side at this stage. The actus reus of the charge against the accused is that his act of stabbing Mr Palmer caused Mr Palmer’s death. I will now record my findings in respect of each count in turn.

Count 1 – attempted armed robbery

I am satisfied beyond reasonable doubt that the prosecution has proved the essential physical element of the offence of attempted armed robbery.
While it will be necessary to detail specific aspects of the facts further when dealing with the next topic, which is whether the defence of mental impairment has been established, it is sufficient for present purposes to say that the evidence consisting of Exhibit B, the CCTV compilation, the oral evidence of Mr Shane Passmore, the admissions made by the accused to Mr Benjamin Poole and the various written statements of lay witnesses contained within Exhibit R establish that the accused attempted to rob Mr Garg beyond reasonable doubt. I have also taken into account that the physical element of this charge was not really in dispute.
This body of evidence establishes that the accused had left his family home in Sandgate Road and headed north along that street in the general direction of the 7-Eleven on the western side of Sandgate Road by about 7:46 pm. When interviewed by Detective Senior Constable Benjamin King and Detective Senior Constable Chris Elliot at about 2:10 am on 13 December 2020 at Newcastle Police Station he told the officers (Exhibit H Q & A 28) that he “premeditated” robbing the 7-Eleven. He said he had decided that, “about half an hour” earlier (Exhibit H Q & A 31).
Before he left home he had armed himself with a ball pein hammer, a large kitchen knife and a smaller dinner knife. He carried the hammer and the long knife in the waist band of his shorts which were covered by his outer garments. He carried the smaller knife like a skene in his sock or shoe.
He was also armed with the improvised incendiary device, consisting of two bottles of chemicals, one of which was said to be ammonium nitrate (Exhibit H Q & A 38–40) and the other a solution of caustic soda, which when mixed together would combust. He said he knew about these things from “science” (Exhibit H Q & A 40) and that he had used them before.
The accused had also taken steps to disguise his appearance. He had sprayed black paint on his face like a mask and on his hands and on his legs. I interpolate that he told police he did that to hide tattoos (Exhibit H Q & A 134), which in fact he does not have. He was also wearing a grey hoodie under his plaid overshirt and a white or light-coloured bandana around his neck which could be pulled up to hide his mouth and chin.
When he entered the service station at about 7:49 pm, he pulled the hood over his head and he was wearing what appears to be a balaclava back to front, but with eye holes cut into it.
Without in any way seeking to make light of the conduct of the accused, and fully accepting from the evidence that his appearance caused concern among the other customers within the service station, somewhat unusually for a would-be robber he took his place in the queue that had formed awaiting service from the console operator, Mr Garg, while he served another customer.
Mr Passmore, a tanker-driver who had stopped at the 7-Eleven on his way home from work to fuel his own vehicle was perhaps two behind the accused in the queue.
In his statement, (Exhibit R1), Mr Garg said he was very confused when the accused came to the counter. He described himself as “in a bit of shock”. That may be understandable given the accused’s bizarre appearance. I must say however, from my viewing of Exhibit B, which I have watched a number of times, Mr Garg appeared surprisingly calm when dealing with the accused, at least up until the accused started to mix the ingredients of his incendiary device. In any event, Mr Garg states that the accused demanded “the smokes and the money”. Mr Garg said, “I can’t deal with you with the covered face. Please remove the hoodie and the face mask for me and the camera”. When the accused refused, Mr Garg repeated that he would not serve him until he removed the mask and hoodie.
Mr Garg then offered to sell the accused a packet of cigarettes. The accused made it clear he did not have the money for the purchase, at which point Mr Garg asked him to stand aside so he could serve other customers. Again, perhaps unusually for a would-be robber, he complied with this request. Mr Passmore confirmed this in his oral testimony (29.41T). Moreover, Mr Passmore, while he was waiting in line said he was not aware of any raised voices during the exchange between the accused and Mr Garg (29.32T). The accused remained standing to one side until Mr Passmore had completed his transaction, paying for the fuel he had purchased.
From Exhibit B and from Mr Passmore’s evidence, it’s apparent that when Mr Passmore turned to leave the counter, the accused followed him out onto the concourse. Mr Passmore stared at him (30.15T) and the accused said, “What are you staring at”. Mr Passmore challenged him about his mask and the accused implied it was for COVID reasons. Then Mr Passmore noticed the ball pein hammer, discontinued the exchange and walked off to his vehicle.
Mr Passmore thought the accused’s appearance was “a bit suspect” (30.35T), so he had filmed him inside the 7-Eleven and again after he returned to his car. His concerns were such that he thought, “something was up that didn’t seem right” and he decided to monitor the situation (31.15T).
After his confrontation with Mr Passmore, the accused re-entered the 7-Eleven. From the CCTV footage, he appears to be adjusting the position of his hammer and knife in his waist band as he approached the counter. At this point he is seen to mix the contents of his bottles. For the first time Mr Garg appeared visibly concerned and he left the counter to enter the adjoining office as the accused threw the bottle now containing the mixture at him. The bottle hit the customer display screen on the till, knocking it over and ricocheted onto the floor where the mixture combusted. I should say again, while this was no doubt concerning for the customers still inside the 7-Eleven, the conflagration was not like one may imagine of a Molotov Cocktail. It was a very localised fire, just involving the bottle which did not spread.
After throwing his incendiary device, the accused calmly walked out of the 7-Eleven. After he passed through the doors, he struck the window with ball pein hammer before, apparently calmly, heading off in a southerly direction toward the Metro Service Station, also on the west side of Sandgate Road. After driving out of the service station, Mr Passmore pulled over and rang Crime Stoppers rather than triple-0 (32.10–.20T). Mr Passmore followed the accused and kept him more or less under surveillance. During the whole of what subsequently occurred, he remained on the telephone to Crime Stoppers.
As he approached the Metro service station, the accused appears to have removed the balaclava. He had however pulled the bandana up, partially covering his lower face. Exhibit B depicts him crossing the frontage of the Metro. Other evidence establishes that he struck up a conversation with two of a group of four friends who had been socialising together that afternoon. The other two were apparently in the service station where one was purchasing food. The interaction among the accused and these young men is not depicted on Exhibit B as it occurred a little out of range of the CCTV cameras at the Metro. One of the two friends initially inside the Metro was Benjamin Poole who gave oral evidence. When he returned to the group, Mr Poole saw the accused talking to his two other friends, one of whom had apparently given the accused a cigarette. Initially the accused seemed to be “talking normally” (38.30T) and then, Mr Poole said, he hit them up for some cash saying, “give me some money”, which the men refused implying they were not carrying any for COVID reasons.
Mr Poole said that the accused then volunteered, “I just tried to rob the servo down the road” (39.12T), I infer referring to the 7-Eleven. Mr Poole was incredulous and challenged the accused about this. When the accused insisted that he had, Mr Poole challenged him further by asking what weapon he had used to try to rob the 7-Eleven. The accused then produced the hammer. When Mr Poole said, “No way you would have tried to rob it with [a hammer]” (39.20T), the accused lifted his shirt to show the long knife in his waist band. He made no mention of his incendiary device. While the accused was showing the four friends the knife in his waist band he said, “Do you want to get stabbed” (39.26-33T), upon which someone said, “Let’s get out of here” and they ran up towards a nearby church. Although the accused displayed the knife, Mr Poole did not think he was going to be stabbed because he was part of a large group, and the knife was “put straight back into his shorts” (42.20T).
I have recounted the substance of this conversation, referred to by counsel as the “cigarette conversation” at this stage as it may be relevant for other purposes. However, for present purposes, the important point is that the accused admitted his attempted robbery at the 7-Eleven, just as he would later to police.

Count 2- the murder of Mr Palmer

Again, there is no issue that by his act of stabbing Mr Palmer with the larger knife the accused caused Mr Palmer’s death. And from my review of all of the evidence tendered in the Crown case, I am satisfied of this element of the murder charge beyond reasonable doubt. However, it is necessary for me to say a little more about the primary facts as I find them to be at this stage.
Almost immediately after the departure of the four friends, Mr Palmer is depicted in Exhibit B walking along the footpath in front of the Metro in a southerly direction. He was walking his daughter’s six month old retriever puppy, Henry. He had come from the 7-Eleven where a Ms Amy Taylor had informed him that, “a bloke had tried to rob the place” (Exhibit R.5 [26]). This is known from Ms Taylor’s account to investigating police.
From Exhibit B, as Mr Palmer approached the cyclone fence at the southern end of the Metro, it is apparent that he exchanged words with the accused, who emerged from the shadows walking towards Mr Palmer. It is not known what was said but they are shown standing more or less toe to toe exchanging words. I infer probably Mr Palmer put two and two together from what he had been told by Ms Taylor and the appearance of the accused. It does not appear to have been a friendly exchange and this phase of their encounter concluded with the accused pushing Mr Palmer away. He then drew the larger knife from his waistband and approached Mr Palmer who backed away quickly. He also appeared to have dropped the hammer onto the soldier’s course wall at the boundary of the Metro near where it was later located by forensic police (Exhibit M, photographs 8 & 9).
During this second phase, the accused swings the knife in Mr Palmer’s direction with a slashing motion and moves up on the retreating Mr Palmer. The accused’s behaviour appears to me somewhat strange. On two occasions he seemed to be taunting Mr Palmer with the knife in hand while dancing a small jig. Mr Palmer seemed to be trying to maintain his distance, but he did not disengage from the verbal stoush. After the second jig, the accused turned and commenced to walk away, returning the knife to his waist band and neglecting to retrieve the hammer. This brought the second phase of the encounter to an end.
It should be borne in mind that these events occurred shortly after 8 pm on a summer’s night in public on a relatively busy road in suburban Shortland. Probably, Mr Passmore was nearby observing. From his evidence, Mr Passmore witnessed the conversation with the four friends and the giving of a cigarette (32.40T). Mr Passmore said that after the four friends “ran away” (33.5T) he saw the accused turn and commence to walk north along Sandgate Road when Mr Passmore noticed the approach of Mr Palmer who was not then known to him (33.20T).

Unsurprisingly given the nature of the events he was observing, and the effect of the shocking or unexpected on human memory, when compared to Exhibit B, Mr Passmore has telescoped events somewhat. However, he noticed, as the CCTV footage depicts, after what I have described as the second phase, the accused and Mr Palmer separated. He said “dispersed” (33.50T). He does not mention seeing the knife before this “dispersal”.
During the first phase of the encounter Exhibit B depicts a couple crossing the concourse of the Metro approaching the service station. They were Michael Delezio-Woods (Exhibit R.11) and his partner, McKenzee Hardman-Webb (Exhibit R.12). This was before the accused first drew his knife. From what is shown on the footage, I infer that Mr Delezio-Woods was concerned by what he saw and heard of the encounter between Mr Palmer and the accused. In his statement, Mr Delezio-Woods said he recognised the accused as they had passed him earlier. He thought it odd that he had paint on his legs and face. Ms Hardman-Webb thought the appearance of the accused was “a little bit strange” (Exhibit R.12[5]). She and her partner “both mentioned how weird he was”. They had also stopped to chat with Mr Palmer and pat Henry in the vicinity of the 7-Eleven. When they reached the 7-Eleven they were told the place had been “paint bombed”. Ms Hardman-Webb associated that event with the accused because of his appearance. She also mentioned he “reeked of paint” (Exhibit R 12 [7]).
Mr Delezio-Woods also associated the attempted robbery at the 7-Eleven with the accused. Mr Palmer was in the immediate vicinity when the conversation about the attempted robbery occurred and the person providing the information may have been Ms Taylor.
On the account of both of these witnesses, Mr Palmer turned and walked Henry toward the Metro. Given what both witnesses had seen of the accused, each was concerned and decided to follow Mr Palmer along Sandgate Road.
The account in their statements is not entirely consistent with what is shown on Exhibit B in as much as they are first shown simply commencing to cross the Metro concourse on Sandgate Road, heading for the service station shop. Mr Delezio-Woods appeared to notice the first phase of the altercation between Mr Palmer and the accused because he appeared to make his way over to intervene just before the accused first drew the knife. The footage then depicts Mr Palmer retreating with Henry during the second phase of the encounter. At that point Ms Hardman-Webb called Mr Delezio-Woods away and they entered the service station shop. When they entered the shop, Ms Hardman-Webb asked for the police to be called.
Mr Delezio-Woods said he had the intention of finding something to throw at the accused and he grabbed “a couple of big bottles of coke” (Exhibit R.11 [13]), but his partner refused to let him go back outside. There were a number of people within the service station shop including staff and perhaps other customers. After the entry of Mr Delezio-Woods and Ms Hardman-Webb, a member of staff locked the doors. I will not go through each of the witness statements contained in Exhibit R, but it’s evident that those inside the service station were aware of the dangerous situation developing outside on the concourse and apart from calling the police, were afraid to become involved. I do not criticise anyone for this. From my viewing of Exhibit B, to adopt Ms Hardman-Webb’s expression, the accused obviously looked weird, he was armed with a large knife and he was behaving in a strange aggressive and disinhibited manner, as I have said in the early evening. Most people would find what they saw of the accused disturbing and perhaps only the very brave would be prepared to intervene or to take him on. It was not just the knife, but his appearance, his manner and his aggressive behaviour.
While making these observations, I should say from my viewing of the video of the later arrest of the accused (Exhibit D), even experienced police officers were very wary of approaching him, and they were out in force. I think this says something about the effect the appearance and behaviour of the accused had on that night on persons of ordinary fortitude and robustness of personality. This also says something about his psychotic state.
As I have said at the completion of the second phase of the encounter between the accused and Mr Palmer, Mr Palmer commenced to walk away. Although he had retreated to maintain a distance between himself and the accused while the latter was brandishing the knife, Mr Palmer did not take the opportunity to walk away himself or to seek refuge within the service station shop while the accused’s back was turned. I am not being critical, as the proverb goes, “even a fool is wise after the event”. Looked at from Mr Palmer’s perspective, he perhaps considered the encounter was over and the accused was going.
Just as the accused was making his way south off the concourse of the service station Exhibit B depicts a motor car entering the driveway. This car belonged to Mr Palmer’s very close friend, Rodney Sharp, who serendipitously was coming to the service station to buy cigarettes. In common with other witnesses, to whom I have made reference and Mr Palmer himself, he had first attended the 7-Eleven, found the doors locked and was told there had been an attempted robbery. He decided to continue on to the Metro. Mr Sharp said that when he pulled up at the bowsers at the Metro, Mr Palmer and the accused, “were quite a distance apart” (45.16T) and this is consistent with what is depicted on Exhibit B. Mr Sharp described what happened next in the following terms (45.35T):

“They were seeming to be having some words and that and the defendant was moving towards Bob, Bob was backing off, it was going to and fro like that for a while, and then, … they come together, … the defendant went to Bob and they had a tussle and come apart. They went back together and the defendant walked off and that’s when I yelled out to Bob “You okay?” and he said “No, I’ve been stabbed”.

Mr Sharp also said that when this, what I would call third phase of the encounter was developing, he got out of his car grabbing an axe handle which happened to be in the back of his car, but by then “they’d come apart, and that’s when Bob said he’d been stabbed” (46.5T). Mr Sharp got back in his car and drove to where Bob was now lying on the roadway. I observe that this provided some protection to Mr Palmer. Mr Sharp hoped to be able to render some assistance and get Mr Palmer to hospital.
Exhibit B shows that after the accused commenced to walk away at the end of phase 2, he walked passed Mr Sharp’s car which came to halt at the more northerly bowser at the Metro, Mr Palmer walked a few paces from where he had been standing at the end of phase 2 of the encounter and appears to have yelled out in the general direction of the accused. There is no evidence of what he yelled.
Exhibit B is a compilation of footage and this third phase of the encounter is depicted not only from the Metro CCTV cameras but also from a smart phone video made by Ms Hardman-Webb from within the shop. It is quite clear from the latter segment that when Mr Palmer yelled whatever words he used, the accused stopped in his tracks, turned, looked in Mr Palmer’s direction and oblivious to Mr Sharp’s car and the persons who must have been visible within the shop, strode in what appears to be a purposeful and determined manner toward Mr Palmer. His pace quickened as he neared Mr Palmer. As I have already stated, at the commencement of this third phase, the knife is not visible and the accused’s hands are empty of it. Although Mr Palmer was backing away, the accused soon caught him at the northern end of the Metro concourse. Mr Palmer stopped and stood his ground. There was an exchange of fisticuffs during which Mr Palmer made good contact with the accused’s chin. The landed punch caused the accused to stumble and more or less trip over Henry, the retriever, but he was able to regain his footing. At this point he drew the knife for the second time and is seen slashing at Mr Palmer as the latter backed away. The accused then lunged, moving his arm in a stabbing motion toward Mr Palmer. Although not clearly depicted on the footage obviously he succeeded in stabbing Mr Palmer. Indeed, the forensic pathologist (Exhibit R 28) described what I would regard as a deeply penetrating single stab wound to the right side of Mr Palmer’s lower chest moving upwards into the left as it entered his body as the cause of his death.
After the accused inflicted the fatal stab wound he and Mr Palmer again separated. The accused turned and resumed his journey southward with an ambling walk. He did not hurry or run away. He appeared to be more or less twirling the knife until he returned it to his waist band.
Mr Palmer initially seemed to be walking away in the opposite direction. However, he did not get far and stumbled onto the roadway.
While Mr Palmer and the accused were attempting to trade blows, Mr Sharp was approaching carrying his axe handle. But it was all over in a matter of seconds and he had not reached the fracas before the accused stabbed Mr Palmer and turned to walk away. Mr Sharp apparently then thought better of confronting the accused who was still brandishing the knife. I do not blame or criticise him for that. As things turned out, it was then too late to assist his friend. He got back into his car, as I have said and drove out onto the roadway to shelter his friend from traffic.
Mr Passmore who had remained in his car describing the events to the operator described the behaviour of the accused after the stabbing in these terms (34.30T):

“He then just casually sort of turned around, walked up the street, crossed the road onto my side where I was, in the same direction, and then just continued to walk, walk away, like, no, nothing happened.”

This description is consistent with the impression I formed from watching the footage: it did appear to me that the accused casually walked away as though nothing had happened.
After the accused walked out of sight, Mr Passmore followed him reporting his movements to police. The persons who had been within the shop emerged and attempted to render assistance to Mr Palmer. I think it appropriate to mention Ms Bianca Fitzsimmons (Exhibit R.16). Ms Fitzsimmons said people were unsure about what to do to help. This is unsurprising, not everyone is trained in first aid and there may be a natural reluctance to interfere for fear of making the situation worse. However, Ms Fitzsimmons removed her jacked and put it over Mr Palmer’s abdomen and applied pressure in an attempt to stem the bleeding. There was probably little that anyone could have done at that stage given the significance of the wound that Mr Palmer had received.
In her police statement ([8]), Ms Fitzsimmons, who was at the Metro service station shop to use the ATM described, what I have called phase 3 of the encounter. She said that the accused had almost walked the length of the service station before turning and running back toward Mr Palmer. I infer that she considered the accused to be agitated at that stage because after Mr Palmer initially repelled the accused and the latter stumbled, Ms Fitzsimmons said the accused “became even more agitated”. She described him as charging at Mr Palmer.
Later when interviewed by police the accused, while admitting to having stabbed Mr Palmer, gave an account which may be suggestive of him acting in self-defence (Exhibit H Q & A 28, Q & A 92–93 and Q & A 149). He made similar statements to police undertaking lawful forensic procedures (Exhibit K) and also earlier to the Custody Manager, Sergeant Smith at Newcastle City Police Station (Exhibit R.26 [11]). It is important for me to record that no such defence has been raised on his behalf. Given my affirmative duties as the trial judge to consider any exculpatory matter that may appear from the evidence led at the trial, I wish to record that I am very comfortably satisfied that notwithstanding the consideration that Mr Palmer did engage with the accused verbally and that engagement may have amounted to an altercation between them, there was nothing on any of the evidence, CCTV footage or accounts from witnesses to suggest that Mr Palmer was in any way an aggressor when the encounter descended into physical violence. Viewed objectively all of the evidence suggests that when it came to physical violence, armed or unarmed, the accused was the aggressor and Mr Palmer offered physical violence only when that was necessary to defend himself from the accused as he bore down on Mr Palmer in the third phase of their encounter.
Legally, an essential element of self-defence depends upon the subjective perceptions of the accused. However, given that the mental impairment defence has been raised, considerations of the accused’s state of mind should be put to one side to be considered in that context or if it is necessary to go on to the third issue of intent.
I accept the evidence of Mr Palmer’s daughter, Mollie, the owner of Henry, that Mr Palmer was personable and kind. He was not an angry person and had good control of his temper. She said she had only rarely seen her father angry ([10]). As I say, I accept this evidence. And I draw the inference that it would have been out of character for Mr Palmer to have been aggressive or violent.
It remains however, while he was not aggressive or in any way the initiator of any violence in his encounter with the accused, and he is entirely blameless in what happened, he did choose to engage verbally with the accused and whatever the source of his irritation, he seemed unwilling to let it go as he is clearly shown to be yelling in the direction of the accused when he appeared to be walking away at the conclusion of the second phase of their encounter. Without criticising or blaming Mr Palmer in any way, with the benefit of the ample hindsight which I am permitted from the wealth of evidence which has been tendered before me, if I may express myself this way, it is to be greatly regretted that he did not avoid any contact with the accused at all or at least seek to completely disengage when the accused walked away at the end of the second phase. Perhaps he could have sought refuge in the shop, which he does not appear to have done at any stage during the encounter. I stress, however, we can never know whether the outcome would have been different given the accused’s volatility.
According to Mollie Palmer, Mr Palmer had spent some time socialising in the Shortland Hotel during the afternoon and early evening of 12 December 2020. Post mortem testing demonstrated a blood alcohol reading at a level capable of dulling Mr Palmer’s better judgment. Perhaps this accounts for him having yelled at the accused after the second phase and while the accused was walking away. Obviously, Mr Palmer was not to know just how volatile the accused would turn out to be.
I repeat, I am satisfied beyond reasonable doubt that by his act of inflicting a single stab wound to Mr Palmer’s right lower chest, the accused caused his death. On post mortem examination the stab wound was found to measure 19.5cm in depth. As I have said, it tracked upwards and slightly to the left. The blade penetrated Mr Palmer’s skin, the seventh rib on the right side, the middle lobe of the right lung, the left and right upper chambers of his heart and terminated in his left lung. This large wound caused significant internal blood loss of 950 millilitres which accumulated in Mr Palmer’s left chest cavity. The injuries from this single stable wound were the sole cause of Mr Palmer’s death.

The mental impairment defence

The history of accused’s schizophrenia

I have already pointed out that is not in issue between the parties that the accused suffers from the psychiatric illness of schizophrenia. It is also not disputed by the Crown that this psychiatric illness constitutes a mental health impairment especially when the sufferer is psychotic. What is in issue is whether the severity of the accused’s symptoms in the early evening of 12 December 2020 were such as to establish the legal defence in terms of s 28(1)(b) Forensic Provisions Act.
There is no issue nor any doubt in my mind that by 12 December 2020, the accused’s psychiatric illness was well documented. So far as the evidence before me goes, he first came to the attention of the medical profession with mental health issues in 2016 when his general practitioner referred him to the organisation “Head Space” which, as I understand it, deals with mental health difficulties in juveniles. He appears to have seen a psychiatrist, Dr Martin Cohen on or about 9 November 2016 who made a diagnosis of social phobia and cannabis addiction against a background of a long history of substance abuse including inhalant abuse from the age of 9, which would have been in 2003. On 25 November 2016, Dr Cohen had diagnosed a cognitive impairment due to inhalant use resulting in significant functional disability (Exhibit 1, Report of Dr Olav Nielssen 12 August 2021, p 10).
On 16 December 2016, Dr Cohen noted decreased cognitive flexibility, reduced abstract thinking in that he was very concrete lacking the capacity for nuanced thought, his verbal fluency was below average, and his planning ability was impaired. Although this diagnosis of major neuro-cognitive disorder due to substance abuse is supported by the psychometric testing of Dr Susan Pulman, Forensic Neuropsychologist in her report of 18 March 2022 (Exhibit R.32), Dr Nielssen, persuasively in my view, with the benefit of hindsight, given the history of the subsequent development of the accused’s psychiatric condition expressed the opinion that these symptoms in 2016 were “almost certainly the decline in social and intellectual function observed during the prodromal phase of schizophrenia (Exhibit 1, p 11). As I understand it, the prodromal phase is the early onset of symptoms of schizophrenia which precede the onset of a fully developed psychotic illness. I accept Dr Nielssen’s opinion in this regard, notwithstanding Dr Allnutt’s preference for neurocognitive disorder. The practicalities of this differential diagnosis do not seem to matter much in the overall scheme of things for this case.
It should also be observed that schizophrenia generally has a large genetic component and on the evidence of the psychiatrists, the accused’s strong family history of bipolar disorder is a significant predisposing factor for his development of schizophrenia. His first admission to hospital with a diagnosis of psychotic illness occurred on 22 June 2017 at the age of 21 with an initial diagnosis of a drug induced psychosis. This was an involuntary admission for a period of about 4 weeks. The history was that he had gone to a house where he once lived, maintaining it was his and refusing to leave. He was charged with the trespass offence of entering enclosed lands, which was later withdrawn. This and a drug possession charge are the only criminal charges against his name according to the material provided to the psychiatrists. His symptoms on admission were recorded as auditory and olfactory hallucinations, ideas of reference involving a belief that the words of songs were referrable to him personally and paranoia being the belief that he was in immediate danger. After his long period of inpatient treatment, he was referred to the Intermediate Stay Medical Health Unit for a 6 week admission from 10 August 2017 to 22 September 2017. He was discharged on a medication regime of a combination of anti-psychotic medications. He was discharged for community health follow-up from 21 October 2017. He seems to have been discharged from community treatment on 24 January 2018. He continued to receive anti-psychotic medication from his general practitioner.

He had another admission on 22 June 2019 when he was taken to hospital by police under s 22 of the Mental Health Act 1987 (NSW). He was again treated as an in-patient at the Maitland Private Hospital from 9 December 2019 to 30 December 2019. His persecutory beliefs abated after treatment with more potent anti-psychotic medication.
A psychiatrist to whom he had been referred by his GP in April 2020 and whom he continued to see until about 10 June 2020, Dr Harihran, made the diagnosis of paranoid schizophrenia and poly-substance abuse. The symptoms at that time included the presence of bizarre delusional beliefs including that his mobile phone was bugged, and he was being tracked, by police. He had an increase in symptoms for which he consulted his GP on 15 October 2020, following his cessation of his medication because he did not like its effect upon him. As a consequence, he suffered a return of bizarre dreams and daytime delusions. On the GP’s advice he resumed his medication. It is accepted that he went off his medications again about 2 weeks before 12 December 2020. It is unclear whether this was because his prescription had not been filled or he ceased taking the medication for other reasons.
From his mother’s evidence, during the couple of weeks leading up to 12 December 2020 the accused was becoming very unwell (131.15T). She suspected that he was not taking his medication correctly. That is something she had noticed before. She said in the days leading up to 12 December (131.30T):

“He was withdrawn, he would constantly sit down on [the] front veranda on the main road monitoring the perimeter, fearful that someone was going [to] hurt him or his family and he had to protect the property and us. He was always talking about something in the sky, like spying on him, his phone being tapped, all of those kind of things. Also, he would talk to - I remember him at one stage having a conversation with a little table that I have, so I, I knew he was becoming unwell again.”

He also had a delusion that there was a big sinkhole in Shortland that was going to suck people, including him, in. For this reason, he preferred to walk on the paved footpath. His mother was not able to have a rational conversation with him (132.17T).

The photographs of the accused’s bedroom at the family home from Exhibit M were shown to his mother during her evidence (132.45T). I interpolate, to my viewing of them they show a complete state of chaotic disorganisation. Ms Griffin said that it was typical of the state of his bedroom when the accused was unwell (133.5T). It needs to be borne in mind that these photographs were taken by forensic officers on 12 and 13 December 2020. Dr Allnutt agreed the photographs were consistent with the symptoms of schizophrenia (92.50–93.14T). Bizarre notes recovered from the bedroom were indicative of the positive symptoms of schizophrenia such as delusions and hallucinations. The general condition of the accused’s room was consistent with functional impairment. Dr Allnutt said:

“The more functional impairment there is, often, that's often indicative [of] a more severe condition, so he's… living in his delusional world more than attending to what's going on in the real world.”

That was an objective factor indicative of the severity of the accused’s illness at that time. Dr Nielssen agreed that the state of the accused’s room was “a reflection of [his] mental illness” (125.10-.24T).

The nature of schizophrenia

Dr Allnutt described schizophrenia as the most severe of mental illnesses (57.26T). It is categorised under the current diagnostic manual that psychiatrists utilise as a psychotic disorder. The symptoms include perceptual disturbances which may include hallucinations and delusional symptoms involving thoughts, beliefs or ideas that have no basis in reality; or, if there is some actual basis, the resulting belief is vastly exaggerated and not in keeping with what would be socially acceptable. Other symptoms include disturbed thought processes, disorganised thinking, and cognitive problems such as difficulty with memory.
The expert said, “the symptoms are generally severe enough to cause an impairment in [the patient’s] functioning that one would see [in his] interpersonal relationships … social relationships and generally mixing in society as well as at times at work” (58.15T).
On Dr Allnutt’s psychiatric examination of him on 14 October 2021, the accused continued to manifest symptoms of psychosis in the form of auditory hallucinations, ideas of reference, paranoid ideation, and thoughts of external control. These symptoms were continuing notwithstanding abstinence in custody from illicit substances (Exhibit R.29 p 15) and compliance with medication as prescribed by Justice Health psychiatrists. I interpolate, ideas of reference refers to a psychotic symptom where the sufferer perceives innocuous events or common place things as having strong personal significance. In the case of the accused, as I have said, he has given a history of experiencing songs as containing special messages for him.
It is common ground that by 12 December 2020, the accused had been off his medication for about two weeks. In his report of 19 April 2022 (Exhibit 29.31), Dr Allnutt reviewed the clinical notes from the general practice attended by the accused which amongst other things indicated that the accused’s condition tended to deteriorate quite quickly without medication resulting in worsening psychosis (p 2).

Recapitulation

The question for me to determine is whether the accused’s mental health or cognitive impairment or both had the effect that when he carried out the acts constituting each of the offences, the subject of the indictment, that he did not know that each incriminating act was wrong in the sense that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people was wrong.
The Crown accepts the existence of the mental health impairment constituted by his condition of schizophrenia, and that he had active psychotic symptoms at the time of the events giving rise to each charge. However, the Crown does not accept that his condition at each of those relevant times was such as the accused did not know the act was wrong. The defence contends otherwise, and it is for the defence to make good their reliance on the defence, as I have said, on the balance of probabilities.

The arguments of the parties

Although the Crown does not carry any onus of proof in regard to this issue, it is perhaps useful for me to point to the arguments relied upon by the Crown for the purpose of better defining the issue.
As it is his right, the accused chose not to give evidence and I do not draw any adverse inference against him from that circumstance. Even though he carries the onus of proof in regard to the defence, it is entirely permissible for him to seek to discharge that onus by reference to the evidence led in the Crown case and the other evidence that his counsel chose to call in his case. However, there are accounts from the accused in evidence before me. In particular, they include the video evidence of his arrest, his police interview and the forensic procedure interview. There is also the statement of the custody manager Sergeant Luke Smith (Exhibit R.26) which contains a record of what was said to him by the accused. I have taken this into account.
Because each of these these accounts is a statement made out of court, they are hearsay and I caution myself that hearsay evidence may be unreliable because it is untested by the trial process through cross-examination. Obviously, to the extent to which the accused made statements against his interest in the litigation, such as by admitting that he performed the acts foundational to each charge, those statements are an exception to the hearsay rule. Even so, I need to weigh and assess his admissions in the light of the whole of the evidence. Statements which are in substance exculpatory are in a different category and the caution I have expressed applies particularly to them. If having applied the caution to which I have referred I accept the exculpatory statements as reliable, I am required to apply them in my determination of the case. To the extent to which exculpatory statements in relation to an issue on which the Crown carry the onus might reasonably be true, even if I do not accept them whole heartedly, I must take them into account in favour of the accused on the issue to which they apply. Even were I to reject the whole of any exculpatory account given by the accused, I may only find against him on an issue on which the Crown carry the onus if there is other evidence which establishes the fact for which the Crown contend. Evidence which a court rejects is not capable of proving anything.

Crown submissions

The learned Crown Prosecutor relied upon ten factors which he submitted when taken together supported an inference that at the time the accused carried out each of the foundational acts relevant to each charge, notwithstanding his mental impairment he was aware his acts were morally wrong. Bearing in mind where the onus of proof lies, it is enough for the prosecution if the inference for which he contends is at least as likely as any other available inference. Many of the factors, if not all of them, were based upon the accused’s own account to police. Implicit in the submission, as I understand it, is that a person’s own words are often a good guide to his or her state of mind. The factors are:

the robbery was pre-meditated;

the accused had a rational motivation for the robbery i.e. to make “quick money”;

the adoption of the measures to disguise his appearance to avoid detection;

his desire not to harm innocent bystanders during the robbery;

his attitude to Mr Garg’s actions of self-preservation when he proceeded to mix his incendiary concoction. The accused was able to reason that Mr Garg’s first responsibility should have been to his customers;

the content of the cigarette conversation with the four friends when the accused admitted he had attempted to rob the 7-Eleven;

arming himself with the large knife, which he admitted to police he had carried on his person “in case things got bad”;

when he perceived it was necessary during his encounter with Mr Palmer, his instinct was to draw the knife and use it;

he described himself as “laying low” on his front veranda prior to the police arriving to arrest him. It was put that this indicated a consciousness of guilt;

finally, his statement that he could not be liable for murder, but only manslaughter in relation to the death of Mr Palmer indicated an appreciation of a degree of wrongfulness of his actions in that regard.

Defence submissions

Mr Rosser KC joined issue on each of these matters, Mr Rosser relied upon the nature of schizophrenia as described by Dr Nielssen (115.10T), accommodating both rational and irrational thought processes simultaneously; the apparent severity of the accused’s mental illness; the bizarre features of the conduct of the accused in his preparation for, performance of, and in the aftermath of the attempted armed robbery; if it were necessary to prove this, there was a psychotic motive for stabbing Mr Palmer, being the accused’s delusional misperception of the events; and the unlikelihood of him not knowing his actions were wrong during the robbery, but knowing they were at the time of the stabbing, given the temporal and spatial proximity between the events.

The expert evidence

When the accused saw each of Dr Allnutt and Dr Nielssen he was unable to give a clear account of what was going through his mind at the time of each event underpinning the separate charges. Both experts accepted that this loss of memory was due to the cognitive deficits associated with schizophrenia. I accept that evidence. However, each expert was able to express opinions relevant to the central issue on the basis of the contemporaneous material arising out of the police investigation with which both had been provided.
In general terms, Dr Allnutt was of the view that at the time of carrying out the acts constituting count 1, while there were factors pointing either way, probably the accused could not reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong. This is a reference to moral wrongness, rather than illegality.
Dr Allnutt was prepared to accept that some aspects of the account given to the police, particularly in the record of interview, may have demonstrated an awareness of the wrongfulness of his acts. In his report of 29 November 2021 (Exhibit R.29, p 19ff), Dr Allnutt accepted that the adoption of a disguise at least provided evidence of awareness of legal wrongfulness. It did not advance the argument about impairment in moral reasoning. Premeditation of planning of an offence did not negate the idea that premeditated decision making is influenced by psychosis. Likewise arming himself in case things went wrong is not necessarily inconsistent with a disturbed state of mind and incapacity to reason about the wrongfulness of his actions because one may not appreciate the wrongfulness of their actions and at the same time be aware that what was planned was going to be difficult or problematic. Acting on his threat to throw the incendiary device when his demands were not met “is also not inconsistent with a defence of mental illness”.
In his oral evidence, while he accepted that the accused’s modus operandi for the attempted robbery points towards irrationality, it did not necessarily follow that the entire offence was driven by his psychosis.
Dr Allnutt’s difficulty with the availability of the mental impairment defence for the second count of stabbing Mr Palmer related to its impulsivity. It was not an event that involved a specific psychotic motive. Rather, it was an unexpected event of a kind that was not accounted for by the symptoms of the accused’s schizophrenia. Effectively Dr Allnutt gave three possible scenarios underlying the stabbing of Mr Palmer:

it was a rational thought process unaffected by schizophrenia. The reasoning being an irritable person who is insulted may react aggressively, impulsively stabbing the person who insulted him;

if the person is experiencing symptoms of schizophrenia, he may stab the person for the same reason, accepting that a person with symptomatic schizophrenia is probably more likely to act impulsively, but the impulsiveness is not necessarily driven by irrational thought; and

the person with schizophrenia who is psychotic incorporates the person in their delusional belief system and acts on that psychotic belief to stab the person.

On Dr Allnutt’s preferred view only scenario (c) attracts the mental impairment defence. The schizophrenia is otherwise unnecessary to account for the stabbing.

Dr Allnutt’s opinion perhaps can be summed up by reference to this evidence (at 94T):

“…in the first offence… I think on balance one can conclude that he was… impaired in his capacity … [for] moral reasoning with a moderate degree of sense and composure.
I think the second offence is not that clear because it's an impulsive act. It seems to be an impulsive act. Had he not committed the first offence and committed only the second offence, one might be more prone to conclude a substantial impairment [(as opposed to the mental impairment defence)]. But having committed the first offence there's an added layer here. So, I think it's a difficult question to answer and it's a matter for the Court. All I can say is, as a forensic psychiatrist, at this point … I feel comfortable with concluding a mental illness defence in the first offence and I feel comfortable with concluding a substantial impairment with the second one and I'm unsure about an impairment defence for the second one.”

It was Dr Nielssen’s opinion that the accused satisfies the mental health impairment defence for both counts (Exhibit 1 pp 12–13). His opinion was that the accused has a chronic form of schizophrenia and was deprived of the ability to recognise that his actions for both counts were morally wrong because he was unable to reason with a moderate degree of sense and composure about whether either act, as perceived by reasonable people, was wrong.
In relation to count 1, Dr Nielssen described the circumstances as “manifestly illogical”. He said the accused’s behaviour “was more consistent with the effect of delusional beliefs that had emerged in the preceding weeks” when the accused was off his medication (Exhibit 1, p 13). The content of the cigarette conversation indicated to Dr Nielssen that the accused had some cognitive awareness of what he had done at the 7-Eleven “but a lack of awareness of the seriousness of it” (109.12T).
So far as the stabbing of Mr Palmer is concerned, Dr Nielssen’s opinion is that the accused had a delusional perception of the events. He believes he was attacked and was acting in self-defence (107.38ffT). Dr Nielssen did not regard it as necessary to demonstrate a specific psychotic motive for stabbing Mr Palmer to be able to say that conduct was accounted for by his psychotic illness.
Dr Nielssen’s evidence under cross-examination in particular in relation to the Crown’s ten salient features may be summed up by reference to an answer (122.44–123.18T) to a question framed in terms of the police interview demonstrating that the accused retained the capacity to reason with a moderate – not perfect – sense of degree and composure about whether his acts were morally wrong. Dr Nielssen said:

“… it’s my opinion that … knowing the effect of acute psychosis on people, knowing that he was psychotic and taking … his behaviour as a whole [into account] shows … I think quite severe impairment in the capacity for logical thinking. I believe that he was deprived of that ability to reason with sense and composure, notwithstanding the answers he gave later. And amongst the answers he gave later were answers which showed that he didn’t believe he was in the wrong, … which did persist, so that’s my opinion … – he did have the mental impairment defence for both offences for the reasons I have set out.”

Dr Nielssen disagreed with Dr Allnutt about there being uncertainty as to the application of the defence to count 2. He said that the accused did not become sane at any point in the evening and remained affected by “a gross impairment in an ability for logical thinking, a disturbance of perception where he’s perceiving threat and a disturbance in his ability to exercise proper self-control or properly analyse the situation” (125.25–126T). He added:

“To sort of look for … a specific sort of link between a certain symptom and a certain action is overlooking how severely disabling schizophrenia can be ….”

Determination

I have set out the applicable principles of law at the commencement of this judgment. I remind myself that the statutory test is concerned with moral, not legal wrongfulness. I also acknowledge that the two concepts are not entirely separate, and an appreciation of legal wrongfulness may on occasion inform a decision about awareness of the moral wrongfulness of one’s actions.
It is also important to bear in mind that the law does not require a finding of complete incapacity to reason about moral wrongfulness. The statute focuses upon whether the accused could not reason with a moderate degree of sense and composure about whether his act as perceived by reasonable people was wrong. Contrary to the opinion of Dr Allnutt, it is not necessary as a matter of law that the accused point to evidence of a specific psychotic motivation for his actions as a pre-condition to successfully making out the defence. The passage I have quoted above from R v Masters makes this clear (at [23]-[24]). This means that it is not necessary for the accused to demonstrate that his motive for his actions is founded in his delusional belief systems about secret wars or the dangers of hidden sink holes.

As Dr Allnutt pointed out, the symptoms of schizophrenia, the most severe of mental illnesses, include perceptual disturbances. Perceptual disturbances are not limited to hallucinations. They also include what Dr Allnutt described as a “vastly exaggerated” understanding of a situation which has some basis in reality (57.45T).
It is also important to bear in mind the refinement with which the issue is cast: the Crown concedes mental health impairment and also an interference with his ability to reason about right and wrong; the question quite literally is one of degree. Was the accused’s ability to reason, while somewhat impaired, still such as he was able to reason with a moderate degree of sense and composure? Looked at in that way, the resolution of the issue so expressed may require the drawing of fine lines in a manner not readily accommodated by the comparatively flexible standard of proof required of on the balance of probabilities.
I accept that the Crown’s ten factors are capable of informing a decision about the critical issue. However, they do not irrefutably point in that direction. Nor need they, to have probative force. However, Dr Allnutt pointed out in his report, as I have referred to above, that several of the factors, especially those relating to count 1, even if established are not inconsistent with the requisite degree of impairment to support the defence. Pre-meditation, planning and arming in particular, according to Dr Allnutt, are not inconsistent with the availability of the defence. As Dr Allnutt put it, an awareness that the successful implementation of the plan may be difficult or problematic is not inconsistent with a disturbed state of mind and an impaired ability to reason about the wrongfulness of his actions in relation to the plan (Exhibit R.29, p 19).
To my mind, the evidence supports the conclusion that the overly elaborate steps taken by way of premeditation, planning, arming and disguise eloquently speak of disordered thinking in relation to the attempted robbery of the 7-Eleven. The consideration that he armed himself with two knives, a hammer and his improvised incendiary device in case things got bad and that he was prepared to use the weapons if he had to only serves to bear out Dr Allnutt’s opinion in that regard. Indeed, from viewing Exhibit B, it is apparent that the accused was over-armed to such an extent that his weapons got in the way. When he re-enters the 7-Eleven after his exchange with Mr Passmore, he is seen to engage in a process of re-adjusting the position of his weapons before he can commence to mix the incendiary concoction. Likewise at the commencement of phase 2 of his encounter with Mr Palmer he is seen to discard the hammer, presumably because it was getting in his way. Certainly, the disguise suggests an attempt to avoid identification and therefore apprehension, which is consistent with an appreciation of legal wrongfulness. On the other hand, the methods taken of spraying a mask in black paint on his face and covering non-existent tattoos clearly evince the workings of a disordered mind. His disguise was likely to, and did in fact, draw attention to himself in a manner which in the end hastened his detection and apprehension through Mr Passmore.
Moreover, I accept the argument that having disguised and armed himself for the purpose of a robbery, standing in line in the queue is another feature suggesting disordered thinking to the point of being bizarre. This is added to when one considers that he stood aside and waited when Mr Garg asked him to and while it was no laughing matter for those present at the time, his incendiary device proved to be entirely ineffective. Paradoxically, the point of the incendiary device was not combustion but the threat of combustion to obtain the desired proceeds of the robbery. This seems to be another matter which the accused failed to appreciate. And when his attempted robbery failed the accused did not even attempt to make a quick getaway, rather having hit the shop front windows with his hammer he proceeded slowly back along Sandgate Road from whence he came. I acknowledge the statements the accused made about the ingestion of a large number of Xanax tablets and the possibility that he taken methamphetamine, but I regarded the deliberate nature of ambulation as indicative of nonchalance rather than intoxication. He was able to move quickly at Mr Palmer at the commencement of the third phase of their encounter.
Making quick money (Exhibit H Q & A 32) may well be a rational motive for robbery. Indeed, it is probably the most common motive for robbery. But it should not be taken out of context. As Dr Allnutt appreciated, when asked why he wanted to rob the 7-Eleven one needs to understand the significance of the whole answer given which was in the following terms:

“I was over them having excess amounts of money and treating it like it was nothing. And to be honest I just wanted to make some quick money.”

This is the language of justification, in my judgment, rather than motive. And it is a significant factor indicating that he did not have an appreciation of the wrongfulness of attempting to rob the 7-Eleven. He considered he was entitled to take money because 7-Eleven had excesses of it, which they treated like nothing. I do not regard the accused’s desire not to harm anyone during his intended robbery as persuasive evidence of his awareness of the moral wrongfulness of his actions. Once again, the whole context is important (Exhibit H Q & A 42). Speaking of his improvised incendiary device he said:

“… instead of grabbing a gun and having to shoot the person in the head, I can make [the incendiary device] and it didn’t work out the way I planned. But I thought I would make that, and it would … defeat the purpose of the gun without harming anyone”.

This is a statement involving a high degree of fatuousness. Treating the creation of the incendiary device as a considered choice to avoid harming persons during the robbery overlooks the consideration that there is absolutely no evidence whatsoever that he ever had any access to any gun, let alone the capacity to use it. It also overlooks the possibility for personal harm should the incendiary device come into contact with a person while burning. It seems to me that this statement falls into that category of grandiosity spoken of by Dr Allnutt as a symptom of schizophrenia (69.50-.70T).

The accused’s statement that Mr Garg “only cared for his own safety” (Exhibit K Q & A 28), ultimately says nothing about his own conduct. I understand the comment as the accused putting responsibility for him igniting the incendiary device onto Mr Garg. On one level he may be understood as making a moral judgment of Mr Garg’s conduct which may be relevant to his capacity to reason. But his comment says nothing about his awareness of the wrongfulness of his own conduct.
I accept that that part of the cigarette conversation where he boasted of having attempted to rob the 7-Eleven also supports a finding that he was aware of the unlawfulness of his actions there. However, to my mind, the main significance of it again is what it shows about his irrational thinking about his actions. Boasting to strangers of an attempted crime portrays a lack of awareness of the seriousness of his conduct, a matter relevant to its wrongfulness. When Mr Poole expressed incredulity the accused, as they say, “doubled down”. In my view this can be added to the list of bizarre features of his conduct which supports rather than detracts from the defence.
Points 8, 9 and 10 relate to the second count. However, I acknowledge that the Crown relies on all ten points together in respect of each count. Point 8, with respect, picks up on Dr Allnutt’s opinion that the fatal stab wound inflicted on Mr Palmer was inflicted impulsively without the accused thinking about the consequences. And this is consistent with what the accused told the police. In describing what I have termed the third phase of their encounter, the accused told police that Mr Palmer punched him and the accused’s first instinct “was to pull a knife” (Exhibit H Q & A 93). He then slashed at Mr Palmer who was able to avoid contact before the accused lunged forward stabbing him. As I understand it, the point being made is that if the accused acted impulsively or instinctively, the fatal stab wound was not a product of his mental impairment at all. In my view one has to look at the whole of the encounter, necessarily through the eyes of the accused before determining that. This is a factor to which I will return in a moment.
Although the accused used the expression that he was “laying low” at the time of his arrest (Exhibit H Q & A 18 and 19), I would not regard his conduct after he stabbed Mr Palmer as involving the type of flight from the scene of a crime often associated in criminal trials with a consciousness of guilt on the part of the accused. Once again, looked at in context, he simply walked away from the scene in the same calm and measured pace he had exhibited throughout. He did not try to hide at some other place, rather he went home. He did not go inside and lie low in his bedroom. He sat out the front, on the veranda where he was visible from the street. He did not attempt to remove the paint he had applied as a disguise. Nor did he attempt to hide the knife. But he had it on him in his hand when police arrested him. At that stage he was not aware that he had killed Mr Palmer. Had there been some consciousness of wrongfulness of his actions earlier that night, it could only have related to the attempted robbery. However, for the reasons I have already given, I do not regard the laying low point as a good one.
The accused twice referred to manslaughter in police custody. He used that expression to Sergeant Smith (Exhibit R.26 [11]). The second occasion was during the forensic procedure (Exhibit K, p. 3). To Sgt Smith, the comment was made in the context of his enquiry about why he was refused bail. Sgt Smith explained it was because he was to be charged with murder. To which the accused responded “Nah it’s not murder it’s manslaughter he came at me! No remorse”. A very similar comment was made during the forensic procedure when he was informed he was a suspect for the offence of murder. The accused responded “murder, at best it’s manslaughter, mate”. One should also recall that during that procedure he said to the police officers “even though if you watch the CCTV footage I’m not in the wrong” (Exhibit K, p 9). Obviously, the reference to manslaughter is capable of demonstrating an awareness of the potential legal wrongfulness of his action in stabbing Mr Palmer. At the same time, the context in which the comments were made was one of justification of his actions. In truth he was asserting he had done nothing wrong, not the contrary.
When I dealt in detail with the circumstances of the encounter between Mr Palmer and the accused, I sought to make it quite clear that on any objective view of the evidence, the accused was the aggressor who initiated and escalated the violence that occurred which culminated in the fatal stabbing of Mr Palmer. Notwithstanding this, it is obvious on the evidence that in fact the accused had no real appreciation of the wrongfulness of his conduct or the gravity of his position after his arrest. He presented the whole encounter to police as one of self-defence. This belief was a product of his psychosis. There is no reason to suppose that his account to police was other than an account which the accused genuinely, but wrongly, believed to be true as he perceived the circumstances. It is not argued that I should not accept his account as a true record of his belief however unreliable the account is because of the effect of his schizophrenia on his cognition. His initial account to police was in these terms (Exhibit J, Q & A 28):

“… this guy with a dog started just laying into me, ripping into me. Like not just ripping into me, he’s sitting there personally attacking me… we got up in each other’s faces, stared each other down. And then … he threatened to throw a punch at me. So, I pushed him. He threw the first punch, he hit me in the right jaw and just out of reflex, I grabbed the knife and I fuckin’ stabbed him.”

During the course of the interrogation, he elaborated stating that Mr Palmer was “revving his dog at me”. Mr Palmer was attacking him calling him “a useless junkie”. He said that Henry started barking at him and that Mr Palmer was letting go of the leash to let the dog try to “sink me”. He said that is why he pulled the knife out and the dog started to “disembark” (sic). He then said that Mr Palmer lunged at him so he pushed him away. Then Mr Palmer punched him and he instinctively pulled out the knife resulting in him stabbing Mr Palmer. The accused described Henry as being the size of a pit bull terrier. He said Henry barked a few times and was baring his teeth at him. He maintained that he wasn’t trying to hurt Mr Palmer. He also said (Q & A 149), “[Mr Palmer] shouldn’t have sinked (sic) his dog on me. They’re lethal weapons.”
I am satisfied on the balance of probabilities that this account is a product of his psychotic and disordered mind. I am satisfied that this account to police is the product of his psychotic misperception of events. The events had some basis in fact in as much as Mr Palmer did have a dog, but certainly not a pit bull. And Mr Palmer does seem to have engaged with the accused somewhat angrily, so far as I can tell from my several viewings of Exhibit B. But in accordance with Dr Allnutt’s description of the symptoms of schizophrenia, that slender factual basis for the account given by the accused, has become vastly exaggerated in his own mind by reason of his psychosis. The events have become so exaggerated in his own mind to the extent that he believed, as a product of his illness, that it was necessary for him to defend himself against the attack of Mr Palmer and his “savage” dog leading him to instinctively or impulsively draw the knife in the deluded belief he had to defend himself.
During the third phase of the encounter before the knife was drawn a second time, when fisticuffs were being exchanged, the accused did stumble over Henry before regaining his balance. This again provides a slender factual foundation for the psychotic belief that Henry was a savage dog which had been set upon him by Mr Palmer. While the accused did not attack Mr Palmer because he had been incorporated him into the accused’s deluded beliefs about a secret war and his part in it, his attack on Mr Palmer was nonetheless a product of his psychosis.
I am satisfied on the balance of probabilities that when he stabbed Mr Palmer, the effect of his mental health impairment upon him was such that he did not know the act of stabbing Mr Palmer was wrong; that is the accused could not reason with a moderate degree of sense and composure about whether stabbing Mr Palmer, as perceived by reasonable people, was wrong. Indeed, in his diseased state of mind, his inability to reason about those matters was such that he believed his act was not wrong, but was well justified.
My conclusion in this regard is bolstered by my impression of what I observed of the demeanour and attitude of the accused on the various videos I was shown of his arrest, his interview and the forensic procedure. As I have said, even when he was effectively surrounded by police in force while he sat on his veranda, he seemed to have no appreciation of the seriousness of his actions or of the precariousness of his position. Arresting police formed the strong impression that he was either drug affected or mentally ill. Notwithstanding the presence of a large number of police barking instructions at him, he seemed unable to follow the simple demand to put down the knife and surrender himself to police, until he was tasered.
Again, during the police interview and the forensic procedure, his demeanour strongly suggested that his actions in relation to each count were justified for the reasons I have given already. Even his proclamation that he had “no remorse”, hurtful as that must have been for Mr Palmer’s family to hear, was borne of his sense that he had done nothing wrong and that his conduct was fully justified because of what he erroneously perceived in his psychosis about the conduct of Mr Palmer. I was struck by his complete failure to appreciate the gravity of the trouble he was in. This was best evinced by his incredulity that he would not be allowed to go home on bail or otherwise.
I have not overlooked the consideration that he told police he had taken a large, perhaps improbable, amount of Xanax tablets earlier on 12 December 2020. I am aware from the evidence that they have an intoxicating effect but are unlikely to interfere with motor function. Although there are competing histories, he may also have taken Methamphetamine. According to the evidence of both psychiatrists, these illicit substances may have heightened the symptoms of his unmedicated psychosis. However, I do not regard the real possibility that he was drug affected when he spoke to DSC King and DSC Elliott from about 2 am on 13 December 2020 as detracting from the validity of my assessment of him as depicted in the videos.
For all of these reasons, I am satisfied that the mental health impairment defence has been made good in respect of each of count 1 and count 2. In these circumstances, I am required by law to bring in the special verdict of act proven by not criminally responsible in accordance with s 30 of the Forensic Provisions Act 2020.
As this will be my verdict, it is neither necessary nor appropriate for me to deal with the questions of intent for either count or the partial defence of substantial impairment available to for the murder charge on a contingent basis.

Orders

I wish to reiterate that the special verdicts do not mean that the accused will be entitled to re-enter the community now or in the near future. It is clear from the facts which I have found proven that, at least unmedicated, the accused currently is a danger to himself and others were he to be released into the community. I propose to make an order that the accused be detained in such place and manner as may be determined by the Mental Health Review Tribunal until released by due process of law. In practical terms this means that the accused will be detained in a secure place until a determination is made that his release is unlikely to seriously endanger the safety of any member of the community or of himself.
For these reasons my verdicts are:

In relation to count 1, my verdict is a special verdict of the act of attempting to rob the 7-Eleven at Sandgate Road Shortland is proven, but Zack Mavin is not criminally responsible;

In relation to count 2, my verdict is a special verdict of the act of fatally stabbing Robert Palmer is proven, but Zack Mavin is not criminally responsible;

Under s 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Zack Mavin is referred to the Mental Health Review Tribunal;

Under s 33 of the said Act, order that Zack Mavin is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until his release by due process of law;

Direct that a copy of these reasons and of the evidence of Dr Allnutt and Dr Nielssen be forwarded to the Registrar of the Mental Health Review Tribunal;

Direct that media organisations who have duly applied may have access to Exhibit G, the recording of Mr Mavin’s record of interview.

**********

Amendments

18 May 2023 - Catch words updated

Decision last updated: 18 May 2023

Medium Neutral Citation:	R v Mavin [2023] NSWSC 455
Hearing dates:	17-20 April 2023
Date of orders:	2 May 2023
Decision date:	02 May 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) In relation to count 1, my verdict is a special verdict of the act of attempting to rob the 7-Eleven at Sandgate Road, Shortland is proven, but Zack Mavin is not criminally responsible; (2) In relation to count 2, my verdict is a special verdict of the act of fatally stabbing Robert Palmer is proven, but Zack Mavin is not criminally responsible; (3) Under s 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Zack Mavin is referred to the Mental Health Review Tribunal; (4) Under s 33 of the said Act, order that Zack Mavin is to be detained at such place and in such manner as the Mental Health Review Tribunal determines until his release by due process of law; (5) Direct that a copy of these reasons and of the evidence of Dr Allnutt and Dr Nielssen be forwarded to the Registrar of the Mental Health Review Tribunal; (6) Direct that media organisations who have duly applied may have access to Exhibit G, the recording of Zack Mavin’s record of interview.
Catchwords:	CRIME — the accused’s diagnosis of schizophrenia was not in dispute — whether the accused was entitled to the mental health impairment or cognitive impairment defence — whether the accused could reason with a moderate degree of sense and composure regarding the wrongfulness of his acts — the application of the mental impairment defence required consideration of the circumstances as a whole — held because of symptoms of his schizophrenia the accused could not reason with a moderate degree of sense and composure for the aggravated attempted armed robbery count and the murder count CRIME — attempted armed robbery with an offensive weapon — bizarre modus operandi in the execution of the robbery and in the accused’s behaviour throughout, before and after the attempted robbery CRIME — murder — following an altercation the accused used a knife to fatally stab the deceased — whether this conduct could be separated from his schizophrenia such that he was not entitled to the mental health impairment defence — held the attack on Mr Palmer was a product of the accused’s psychosis
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 10 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 28
Cases Cited:	The King v Porter (1933) 55 CLR 182; [1933] HCA 1 R v M’Naghten (1843) 8 ER 718 Carter v R [2019] NSWCCA 11 R v Rodrigues [2010] NSWSC 198 Stapleton v R (1952) 86 CLR 358 R v Jenkins (1963) 64 SR (NSW) 20 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Alford v Magee (1952) 85 CLR 437 Hawkins v The Queen (1994) 179 CLR 500 Jones v Dunkel (1959) 101 CLR 298
Category:	Principal judgment
Parties:	Rex (Crown) Zack Mavin (Accused)
Representation:	Counsel: C Young (Crown) P Rosser KC (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) John Anthony Solicitors (Accused)
File Number(s):	2020/352643

Category:	Principal judgment
Parties:	Rex (Crown) Zack Mavin (Accused)
Representation:	Counsel: C Young (Crown) P Rosser KC (Accused) Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) John Anthony Solicitors (Accused)
File Number(s):	2020/352643