R v Mirza

[2024] NSWDC 224

District Court

New South Wales

Medium Neutral Citation:

R v Mirza [2024] NSWDC 224

Hearing dates:

11/6/24, 12/6/24, 18/6/24

Date of orders:

18/6/24

Decision date:

18 June 2024

Jurisdiction:

Criminal

Before:

Bourke SC

Decision:

1. Pursuant to s. 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, in relation to each of the 8 counts on the indictment, I find the acts proven but that the accused is not criminally responsible by reason of mental health impairment.

2. I refer the accused to the Mental Health Review Tribunal.

3. A copy of my judgment on verdict, the transcript of the proceedings, and the exhibits are to be provided to the MHRT.

4. The Registrar of the Court is to notify the Minister for Health of the terms of the judgment and the orders.

5. Pursuant to s. 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 I order that the accused be detained in a secure forensic hospital or mental health facility pending review by the MHRT. Failing that, he is to be held in the Corrective Services Hamden Pod or similar.

Catchwords:

Crime – Judge alone trial – verdict – Mental health

Legislation Cited:

Criminal Procedure Act 1986

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

R v Hall (1988) 36 A Crim R 368 at 370

R v Markuleski (2001) 52 NSWLR 82

R v Tonga [2021] NSWSC 1064

Category:

Principal judgment

Parties:

NSW DPP – Crown
Khateebull Mirza - Accused

Representation:

Ms C Dobraszczyk for Crown
Mr B Nield SC for Accused

File Number(s):

22/321851, 22/356712, 22/358913

Publication restriction:

Statutory non-publication provision in relation to the identity of the victims

Judgment

1. The Accused is charged on indictment with 8 alleged offences, said to have been committed in October and November of 2022.

2. The Accused sought that his trial be conducted by a Judge without a jury, and the Crown agreed to this course. On 11 June 2024, I therefore ordered that the trial proceed by Judge alone, as required by s.132 of the Criminal Procedure Act 1986.

3. Evidence was then called in the trial over two days – 11 and 12 June 2024.

4. In this judgement I record my verdicts, and reasons for reaching those verdicts.

5. In reaching my verdicts, I must take into account any warning, direction or comment which by law would be required to be given or made to a jury.

6. However, in this trial there is no dispute that the Accused carried out each of the physical acts that are alleged in the charges. The issue in this trial is whether, in carrying out those physical acts, the Accused has available to him the defence set out in s.28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”).

7. Relevantly, that section provides that a person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment (or both) that had the effect that the person:-

1. did not know the nature and quality of the act;

OR

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

8. Subsection 28(2) provides (relevantly) that the question of whether a person had a mental health impairment or cognitive impairment (or both) is a question of fact, to be determined on the balance of probabilities. Subsection 28(3) creates a presumption that a person did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in par 7 (a) and (b) above.

9. These provisions of the Act reflect common law legal principles of very long standing. The relevant principle is that a person cannot be guilty of a criminal offence unless it is proven beyond reasonable doubt not only that they committed the relevant act, but that in doing so, they had the required (guilty) state of mind.

Direction in terms of s.29 of the Act

10. The findings that may be made in this trial (in relation to any of the charges) are either:-

1. “Guilty” – in which case it is for the Court to determine an appropriate penalty;

2. “Not guilty” – which means that the Accused walks from the Court a free person and the criminal process comes to an end; or

3. “Act proven but not criminally responsible” (known as a “special verdict”).

11. In the event that a special verdict is returned, the law provides for a process of review, to determine whether the Accused poses a risk to himself and/or others, and whether he should be released into the community or detained and treated. If the Court concludes that it is not appropriate to release the Accused into the community, the Court can order his detention until it is safe to release him. Detention can be in a prison, or in a secure hospital or some similar facility, and it would continue until the Mental Health Review Tribunal decides that the Accused should be released.

12. The Mental Health Review Tribunal is a special body with expertise in this area. The Members of the Tribunal are people with special qualifications and expertise. They include judges or senior lawyers, but also medical and other professionals, such as psychologists and psychiatrists.

13. The Tribunal will review the Accused’s situation regularly and will not order his release until satisfied that the safety of any member of the public would not be seriously endangered. Until that time, the Accused would be held in a secure place, where medical treatment can be provided.

14. In taking into account this information it is not, however, an invitation for me to decide the case based upon what I think is the best outcome for the Accused or the community. Rather, I must return a verdict based only upon the evidence placed before me.

Onus and standard of proof

15. It is always for the Crown to prove the elements of the criminal charges. The Accused is presumed innocent and retains that presumption unless or until I am satisfied beyond reasonable doubt of his guilt of any or all of the charges. Beyond reasonable doubt is the highest standard of proof known to our law.

16. However, in relation to the defence of mental health impairment, it is the Accused who carries the onus of proving this. However, the standard of proof imposed on the Accused is the lesser (civil) standard of the “balance of probabilities”. This means that the Accused is required to satisfy me that it is more probable than not that when he carried out the relevant acts, he had a mental health impairment and/or cognitive impairment that had the effect set out in paragraph 7 (a) or (b) above.

Assessing the evidence / Applying common sense

17. In assessing the evidence, I must approach the task with an open and unbiased mind, act logically, rationally, and not capriciously. Although in carrying out that task, I should apply common sense, my verdict must be based only on the evidence called in the trial.

Other directions

18. In a trial involving allegations such as those set out in the indictment, it would ordinarily be necessary for me to direct myself about a number of other important matters, which relate primarily to the proof of the alleged offences. This would include (among other things) – the need to be satisfied beyond reasonable doubt as to the essence of the evidence given by each of the Complainants, and of the need to examine their evidence carefully, given that their evidence is “essential” to the proof of the allegations made in their evidence. In relation to the allegations in Counts 3 to 8 (which relate to a single Complainant) the usual directions would also include those derived from R v Markuleski (2001) 52 NSWLR 82.

19. In an appropriate case, where the essential factual allegations are in dispute, other directions might also be necessary, both in relation to the evidence called by the Crown, and also in relation to any evidence relied on by the Accused (or the lack of any such evidence).

20. However, in this case, there is no dispute about the essential factual matters making up the physical acts of each alleged offence. There is a “Statement of Agreed Facts” which has been signed by the Accused, and which sets out the matters that are agreed. A copy of that document became Exhibit 3 in this trial, and a copy of it will be annexed to this judgment.

21. In those circumstances, it is unnecessary for me to direct myself in any further detail than I have already set out above.

22. What is necessary however, is that I turn to examine the only issue in this trial, which is whether the Accused has established on the balance of probabilities the defence set out in s.28 of the Act.

Evidence relevant to the “mental health impairment defence”

23. At the commencement of the trial, there was tendered a bundle of materials, contained in two folders, which amounted to an agreed bundle of evidence relevant to the determination of whether the above defence is made out. That bundle of materials is Exhibit 1 in the trial, and includes the material relied on both by the Crown, and the Defence. In addition however, there was tendered in the Accused’s case part of the Psychiatric report of Dr Adam Martin, dated 7 June 2024, and this became Exhibit 2. Furthermore, there is Exhibit 3, which is the signed Statement of Agreed Facts, to which I have already referred.

24. In addition to this evidence, oral evidence was given by two Psychiatrists, being Professor David Greenberg (in the Crown case) and Dr Adam Martin (in the Defence case).

Evidence of Professor Greenberg

25. Professor Greenberg completed two written reports before he gave evidence. There was no challenge to Professor Greenberg’s qualifications or expertise.

26. His first report, dated 22 June 2023, was prepared after conducting a psychiatric assessment of the Accused on 12 and 13 July 2023. His assessment, and his report were carried out having regard also to a number of materials, which included a draft Crown Case Statement (containing the allegations relating to the three Complainants), and also two reports prepared by Psychiatrist Dr Adam Martin.

27. In carrying out his assessment of the Accused, Professor Greenberg asked the Accused about the alleged offences.

28. In relation to the allegation involving the Complainant KL (Count 1), the Accused said that at the time he was “under the impression it was part of a game” and that his actions were controlled and programmed. He said that Ms KL was the first person he saw after leaving the Coles supermarket where he had heard his name being called, and that he had been “programmed to complete a task. Programmed through my phone, computer and TV”. He told Professor Greenberg that he smacked the Complainant’s bottom because it was “programmed” to continue “the game”.

29. In relation to the allegation involving the Complainant SW (Count 2) the Accused told Professor Greenberg that he vaguely recalled touching her breast, but that he was “programmed to go and touch this person”, and that he believed she was part of “the organisation and the game”.

30. When asked about the most serious allegations involving the Complainant MM (Counts 3 – 8) the Accused said he got a message to go to a particular address, and that the radio was talking to him, and that he would meet an Asian lady (there). He said that he had previously lived at that address, and that on this occasion, someone had let him into the building. He told Professor Greenberg that he did not recall where he obtained the knife and thought that he bought the dog collar and chain weeks or months back, just to use in the future. He said that on the day of the alleged offences, he was “acting on directions”, it was like an “out of body experience” and like he was “possessed by someone”. He said that he thought the Complainant agreed to it, by pointing to her body. He said also that he had no recall of touching her breast or slapping her across the face, but did recall having sex with her. In his second interview with Professor Greenberg, the Accused said he had thought further, and wanted to clarify some things. He said he thought it was part of “the game” and that the Complainant had shown him her body and said “You can do anything you want” and that she did not look scared. He reported hearing voices, and not remembering having the meat clever in his hand, but also stated that he needed it “for protection”. Furthermore he told Professor Greenberg that he thought “the organisation” was monitoring us and “controlling us” and that they were both “players in the game”, and that at the time, he had no control of his actions.

31. In this first report, Professor Greenberg expressed the opinion that at the time of the alleged offences the Accused had a mental health impairment, in the form of Schizophrenia Disorder, with co-morbid diagnoses of Substance Use Disorder and PTSD, in partial remission. In coming to that opinion, Professor Greenberg did not rely solely on his own clinical assessment, but also took into account other evidence, which included the following:-

1. self-reports that from about 2020, the Accused felt overwhelmed because he believed that Gladys Berejiklian was monitoring him and had come out of the TV as a hologram, asking him to leave his job (and that he did quit his job, and travel to India).

2. a letter dated 19 August 2021, from Dr Meena Gnanasekharan, a Psychiatrist the Accused saw in India, which stated that the Accused had been diagnosed with Major Depressive Disorder with psychosis and paranoid delusions, and that he needed “immediate and constant medical care”.

3. a hand written letter by the Accused dated 1 September 2021, addressed to the “Chief of Police” which contained various paranoid delusions, including beliefs that the Accused had been the subject of “illegal human experimentation” by an “illegal multinational organisation”.

4. a NSW Police “COPS” (computer) entry of 2 September 2021, created after the Accused had called 000, saying he had been administered illegal drugs by an “organisation” that was conspiring against him, and that his dentist had been administering truth telling serums, conspiring against him, and controlling his movements.

5. a letter from a Psychiatric Registrar at RPAH dated 14 September 2021, noting that the Accused had been admitted (on 2 September 2021) for a psychotic episode.

6. a note from Psychiatrist Dr Meena Gnanasekharan dated 17 August 2022, stating that the Accused had come to India 4 months before that date, and was being treated with anti-psychotic medications, and had been diagnosed with a mood disorder with psychosis.

7. the suggestion that the Accused’s flatmates had noticed a decline in the Accused’s mental state from around October 2022, with him being awake all the time and increasingly smoking more and more cannabis, and had lost his job and was falling behind in rent payments.

32. In this first report, Professor Greenberg expressed the ultimate conclusion that at the time of the alleged offences, the Accused had a mental health impairment, and that, while he did possibly know the nature and quality of his acts, he did not know that the acts were wrong (that is, that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

33. On 28 February 2024, Professor Greenberg completed a second report, in response to a request from the Crown that he consider some additional issues. In that report, Professor Greenberg confirmed that the Accused likely knew the nature and quality of his acts and likely knew the legal wrongfulness of those acts. However, he remained firmly of the view that at the time of the alleged offences, the Accused had a mental health impairment which had the effect that he did not know that the acts were wrong (that is, he could not reason with a moderate degree of sense and composure about the acts, as perceived by reasonable people at that time). Professor Greenberg went on to state that in his opinion, the Accused did not know that his acts were morally wrong, because of his underlying reasoning which was likely delusionally based.

34. Professor Greenberg gave oral evidence in the trial on 12 June 2024. On that occasion, the Crown asked the Professor to comment on a number of aspects of the evidence.

35. Firstly, the Crown reminded the witness of the things that had been said by the Accused at the time that he touched Ms KL on the buttocks (Count 1), and asked whether those comments were consistent with someone who was experiencing an hallucination or hearing voices, or whether, on the other hand, the Accused knew fully what he was doing. On this question, Professor Greenberg said that the things said by the Accused at the time indicated that he knew the legal wrongness and nature and quality of his acts, but maintained his opinion that this was not inconsistent with the Accused’s underlying reasoning being based in a psychotic belief that he was being controlled and was part of a game.

36. Secondly, the Crown asked, by reference to the allegations concerning SW (Count 2) whether the fact that the Accused responded “You look hot, I just wanted to touch you” was more consistent with a person knowing exactly what they are doing, and not consistent with a person acting under a delusion that they are part of a game. Professor Greenberg answered this question by first accepting that there was nothing in the Accused’s speech which suggests he has an underlying psychotic illness. However, he said, this was not inconsistent with the existence of a psychotic belief system. The doctor explained that a person with such a psychosis will not necessarily disclose their delusional beliefs openly, in the form, for example, of speech, and that the person may be able to function on a day to day basis in fairly normal terms. He said further that the existence of the psychosis may only be detected when the person is placed on treatment, and that the existence of the delusion may only be revealed when “you tap the right keys on the keyboard”. Professor Greenberg confirmed however his view that (in relation to this second incident) the Accused knew what he was doing from a legal perspective, but that he did not understand the moral wrongfulness, because he felt he was acting in accordance with a game, and that an organisation was controlling him. The Crown also asked Professor Greenberg whether the fact that (as noted on page 6 of his first report) the Accused had wanted to clarify things from his previous interview caused any concern about the mental health diagnosis. In response, Professor Greenberg said that this does cause some minor concern, but that, having regard to all of the evidence, it did not change the diagnosis.

37. The Crown further questioned Professor Greenberg about a suggested inconsistency in the Accused’s account about the 3^rd incident (Counts 3 to 8), given that he claimed not to remember where he got the choke chain from, and does not remember swinging the knife, while at the same time saying that he was following orders and did not have any control of his actions. Professor Greenberg replied by agreeing that there were a number of inconsistencies in the accounts given by the Accused, but that this is not inconsistent with a man acting on a delusional belief system.

38. Professor Greenberg was also questioned as to there being no apparent direct link between the sexual acts, and “the game”. However, the doctor explained that in his view there is a direct relationship, although it is possible that the Accused also has an underlying sexual disorder, that he is a complex individual, and that his sexual behaviour may have been coloured by his own background, which is said to have involved some sexual abuse as a child. Professor Greenberg was asked about the Accused’s asserted belief that “the organisation” was “placing women in my life to get me back to normal sexual arousal system”, and whether this was a reference to the alleged offences. In response to this, the witness referred to the Accused having beliefs (such as those set out in his letter of 1 September 2021 to the “Chief of Police”) “with absolute clear intensity that that is his truth”, and that such beliefs might be described as an autochthonous delusion – which is a belief system which just appears in the brain.

32. Finally, Professor Greenberg was asked about the confirmation in his second report of his opinion that the Accused did not know that his acts were morally wrong. In response, he provided the following lengthy explanation:-

“A. Yes. The basis of it is firstly his psychiatric history. He has got a pre-existing mental illness, which was diagnosed at the Royal Prince Alfred Hospital. He had a psychotic illness. That was a year before this happened, these three incidents happened.

Secondly, that he had written letters to the Chief of Police where he outlines his psychotic delusional belief system about a conspiracy and the organisation. Thirdly, the COPS (report) and the police video, body worn videos of him trying to explain his psychosis, his belief system, which is clearly psychotic. He subsequently was seen by a psychiatrist in India. He returned home to his parents. His family were concerned about his mental health. They took him to see a psychiatrist on - he was periodically going back and forth because he wasn’t functioning very well.

He had lost employment. He had been fired. In fact, his last job, he was fired because, although he was highly educated, had occupied fairly middle management positions where he was just remunerated in fairly large amounts, he had deteriorated where he wasn’t able to function work-wise and had either been let go or, in the last position, actually fired, dismissed because he wasn’t functioning, which is quite clearly consistent with schizophrenia. The deterioration in his level of functioning is a hallmark feature of schizophrenia and psychosis.

So all that background information is consistent with a man with a pre-existing mental illness, schizophrenic illness, where he had been diagnosed both in Australia and in India with a psychosis. The actual offences are bizarre. Certainly, the first two are in broad daylight, in view of the public. The third incident is also fairly bizarre. There is no previous background history of sexual offending. There is no previous background history of offending at all, that we know of, anyway, and this behaviour would be considered uncharacteristic for this man.

The subsequent events where he’s interviewed by police are not inconsistent, although, as you pointed out, there are some inconsistencies in his accounts. He is subsequently admitted into custody and seen by various health professionals. He doesn’t disclose any of his history to the staff. In fact, he’s guarded, suspicious, and hides his mental illness from the mental health professionals, which would not be consistent with a man who’s trying to malinger or trying to use his mental illness as an excuse for his offending.

Much later, four, five months later, he is detected as having a mental illness and subsequently put on to anti-psychotic treatment, which he’s now receiving. He still has residual symptoms. He’s not recovered, and his illness is not stabilised or controlled at the moment, as far as I’m aware. Certainly, when I saw him, was not stabilised.

Everything that I’ve said in the last few minutes is consistent with a man who, at the time, although he knew the legal wrongfulness, and although he understood the nature of his actions, the quality of his actions, he was acting on a delusional, psychotic belief system where he did not know the moral wrongfulness of his behaviour. In other words, he could not reason with a moderate degree of sense and composure as per a reasonable person might be expected to behave.”

Evidence of Dr Martin

40. Dr Adam Martin is a Forensic Psychiatrist who was called in the Defence case. There was no challenge to Dr Martin’s qualifications or expertise in giving his expert opinion evidence. Dr Martin produced a number of reports about the Accused, and also gave oral evidence in the trial.

41. Dr Martin’s first report (9 March 2023), was prepared after assessing the Accused on 20 February 2023, and after having regard to a number of documents, as well as speaking with the Accused’s sister who is in India.

42. As part of his assessment, Dr Martin asked the Accused for his account of the alleged offences. In response, he noted, the Accused gave a lengthy and somewhat disjointed account of beliefs which were consistent with delusions. The Accused told Dr Martin that “the voices kept telling me that if you do this, you unlock the next stage of the game” and that “the person you are doing it to, they’re part of the game, that they were digital versions, that they were consenting to it”. The Accused also told the doctor that in the time leading up to the alleged offending, he had been smoking cannabis on a daily basis and drinking a large amount of alcohol, saying “It was part of the program” and “I was fed the thoughts that alcohol and cannabis had no effect on me – it was part of the game.”

43. The Accused volunteered to Dr Martin beliefs in a paranormal system which he said he believed since childhood where he felt he was followed around by “entities” who might have been spirits or ghosts, and that he “felt molested by these entities” and that “they became part of the game”. In relation to his memory of the alleged offending, he told Dr Martin that “I felt like I was a spectator, standing outside my body, my actions were not in my hands, it was not in my control”, and asked rhetorically of himself “How is this possible?”. The Accused also expressed the belief that he was being controlled by an app that had been installed on his phone. The Accused also made statements suggesting that he still believed that various females had been sexually touching him and flirting with him even after his arrest.

44. In this first report, Dr Martin noted and considered a variety of documents concerning events, and psychiatric opinions about the Accused during 2021 and 2022, which pre-dated the alleged offences. (These documents have been referred to earlier in these reasons, in the context of Professor Greenberg’s consideration of essentially the same material).

45. Dr Martin in this first report noted that he spoke with the Accused’s sister who was in India, and that she had confirmed a history of her brother’s mental illness and experience of paranoia, and psychiatric treatment.

46. Dr Martin also referred to the contents of the Accused’s police interviews of 26 and 28 November 2022, noting that in both of these the Accused looks outwardly composed and calm, is lucid and alert, talks coherently, and is polite and seemingly cooperative. He noted that the interviews do not demonstrate any bizarre thought content or obvious hallucinations.

47. In this first report, and after taking into account all of the background material, as well as his own assessment of the Accused, Dr Martin expressed the opinion that it is more likely than not that the Accused at the time of the alleged offences had a mental health impairment, in the form of paranoid schizophrenia. He noted in his report that schizophrenia is a form of psychosis, and a description of a person being “out of touch with reality”. He noted that there was clear evidence of the Accused having previously been diagnosed with psychosis, resulting in his involuntary admission to a hospital approximately 12 months before the alleged offences.

48. Dr Martin expressed the view that the narrative account given by the Accused of a disordered mental state with delusions and auditory hallucinations is “plausible and genuine”. He noted that he had considered the possibility that the Accused was malingering or embellishing psychotic symptoms (ie making them up, or exaggerating them) in order to obtain a legal advantage and reduce his criminal responsibility. He noted that this is always a potential issue, but that, on balance, he believed the Accused’s presentation was genuine. This conclusion, he said, was based on the clear evidence of pre-existing psychosis and treatment with anti-psychotic medication as an involuntary patient in a mental health facility, and the fact that the Accused remained thought disordered.

49. Dr Martin noted that at the time (of the alleged offences) the Accused was not taking anti-psychotic medication, and was smoking cannabis, which is a known trigger in people vulnerable to mental illness. He further noted that the lucid and coherent presentation of the Accused in his police interviews does not negate the possibility of him being psychotic at the time of the alleged offending.

50. In conclusion, Dr Martin said that in his view, it is likely that the Accused was in a highly delusional mental state at the time of the alleged offending, and that his delusions and (auditory) hallucinations would have rendered him incapable of differentiating generally between what is real and not real. He said that while the Accused probably knew the nature and quality of his actions, his ability to reason with moderate composure to the normal person would have been significantly impaired. It was, he said, likely that the Accused was acting under delusional beliefs, responding to hallucinations, and believing that he was involved in an “alternate reality”, and being directed by an organisation. It was further likely that his capacity to control his actions was significantly impaired, and that he would not have had a meaningful understanding of wrongfulness at the time of the alleged offences.

51. In a third report (dated 28 May 2024), Dr Martin was asked to consider some further documentary material, as well as the two reports of Professor Greenberg. Having done so, Dr Martin confirmed his view that the Accused was suffering a mental health impairment (paranoid schizophrenia) at the time of the alleged offences. He noted, in relation to this opinion, that there is “very clear, objective, documented and first-hand evidence of Mr Mirza presenting with systematised persecutory delusions, leading to involuntary psychiatric hospitalisation, overseen by the Mental Health Review Tribunal, and where he required mandatory anti-psychotic medication, in the year prior to the alleged offending.” He noted his “strong opinion that his presentation was not merely a transient drug-induced psychosis or manifestation of intoxication but rather was a manifestation of a chronic major mental illness.” Dr Martin stated that the (police) body worn video from 2021 is particularly convincing, noting that the Accused does not appear overtly intoxicated, and presents as lucid and not particularly thought disordered, although he is clearly pre-occupied and expressing systematised delusional beliefs.

52. Dr Martin went on in that 3^rd report to confirm that he remained of the opinion that the Accused would not have understood the wrongfulness of his acts, because his capacity to reason with moderate composure was significantly affected by a persecutory delusional system which severely deprived him of the capacity to think rationally, and where his ability to think about right and wrong was severely compromised. Dr Martin stated also in this report that it is not possible to know exactly why the Accused acted as he did. One possibility, he said, is that he engaged in the alleged sexual offending for completely psychotic reasons, such as responding to “command hallucinations”, but it is also possible that his behaviour was indeed driven by sexual desire, although heavily influenced by psychotic beliefs. Dr Martin stated that it is more likely than not that the alleged offending occurred in direct connection with psychotic phenomena, and that “but for” this phenomena, the offending would not have occurred.

53. Dr Martin prepared a 4^th report, which was dated 7 June 2024, and part of that report was admitted as evidence in the trial and became Exhibit 2. However the contents of that report do not alter, or materially add to the opinions stated in earlier reports.

54. Dr Martin gave oral evidence in the trial, and was cross-examined by the Crown Prosecutor.

55. It was suggested to the doctor that there was no clear connection between the acts carried out by the Accused, and his explanation for those acts. Dr Martin disagreed with this, and said he thought there was a reasonable connection between the delusions and the alleged offending. The Crown suggested to Dr Martin that the Accused’s assertion that voices told him to do things that were “against my morals” might indicate that he knew that his actions were illegal. In response to this suggestion, Dr Martin said he thought the Accused probably did know – or had some appreciation of - the illegality of his actions, but that his mental state was so distorted that he would not have been able to weigh up issues of morality and wrongfulness. He explained that when people with schizophrenia are acutely psychotic, they can on the one hand understand that what they are doing is (for example) violent and will lead to their arrest, but on the other hand feel justified in doing it. He said that such a person can understand that their thought processes are irrational on one level, and be seen by others as irrational, yet still believe that their actions are rational. He described this phenomenon as “schizophrenic ambivalence”, and agreed that it was “difficult to understand”.

56. The Crown also questioned Dr Martin about an alleged inconsistency between the Accused’s assertion that he was being required to do things “against morals”, while at the same time stating that he thought the women were consenting. Dr Martin agreed that there was some “face value” inconsistency in this, but said that at the time the Accused said these things to him, he was still psychotic and very mentally ill, and giving a very thought disordered account. He said that the way it had come out (from the Accused) was “madness”, but that the Accused was at that time totally out of touch with reality. He added that in his view, the Accused’s mental state would have been so distorted that he would not have been able to fully understand right from wrong, and was “in another world”.

57. Dr Martin was also asked (in relation to the Count 1 allegation) whether the Accused’s words “sorry, I thought you were somebody else”, which were stated immediately after he was challenged by the Complainant Ms KL, were an indication that he knew exactly what was going on, and do not suggest that he thought he was part of a “game”. Dr Martin agreed that there was nothing in these words that speaks directly to the Accused having those beliefs, and that the Accused did know the nature of the physical acts he was performing. Ultimately however, Dr Martin did not accept that this changed his opinion about the Accused’s mental state.

58. It was also suggested to Dr Martin that, in relation to the allegations in Counts 3 to 8, the Accused’s words and actions were not consistent with his asserted belief of being part of a game. Dr Martin agreed that these words and actions do not positively link to any psychotic beliefs, but that this does not negate the existence of psychotic phenomena.

59. Dr Martin also said that while there were inconsistencies in a number of aspects of the Accused’s account to him, in his opinion, it would be “suspicious” if there were not these inconsistencies, and suspicious if the Accused’s version “fitted some kind of script”. He said, furthermore, that in his view the Accused genuinely held the belief that he was part of a video game, and in those circumstances he did not have the capacity to reason appropriately. He said that although the Accused had some understanding that raping someone was wrong, and that he would be arrested, his judgment was overridden by “completely outlandish, distorted, psychotic beliefs” such that his actions were out of control and he would not have had a good capacity to reason morally or to understand right from wrong.

60. In re-examination, Dr Martin was asked to expand upon his views about the fact that the Accused did not make overt reference to any “game” in the words he spoke to each of the Complainants. Dr Martin said that there were plenty of examples of the Accused not disclosing delusional beliefs, and that the absence of reference to his psychotic beliefs was not inconsistent with the Accused having such beliefs. He said that in schizophrenia, people can be very guarded, and can understand, on one level, that there beliefs would be regarded by others as “mad”, and yet still hold those beliefs. He provided the analogy of a person being on a psychiatric ward, and seeing another person’s beliefs as delusional, while having the same belief themself, yet thinking that their own beliefs are reality based. He described this is an example of “schizophrenic ambivalence”.

61. Finally, Dr Martin was asked about the letter that the Accused had written in September 2021 to the “Chief of Police”, and about his interactions with Police the next day (which were recorded on body worn video). He said the significance of this material is that it provides very clear, objective, first-hand evidence of the Accused being absolutely delusional, and that this takes away any suspicion that he is contriving or manufacturing mental illness. In other words, Dr Martin explained, the Accused is being genuine.

Submissions of the Crown and Defence

62. As earlier noted, there is no dispute that the Accused carried out the physical acts making up the alleged offences. The only issue is whether the Accused has made out the “mental health impairment” defence in s.28 of the Act.

63. To make out the defence, the Accused must establish, on the balance of probabilities, that he had a mental health impairment or a cognitive impairment (or both) that had the effect that he either:-

1. did not know the nature and quality of the act;

OR

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

64. The first question (or first “limb” of the test in s.28), is whether I am satisfied on the balance of probabilities, that, at the time the Accused carried out the physical acts making up the alleged offences, he had a “mental health impairment” or a “cognitive impairment”. Counsel for the Accused submitted that I would be satisfied that the Accused at the relevant time had a “mental health impairment”. Similarly, the Crown submitted that there is very good evidence, and that I would find, on the balance of probabilities, that the Accused did have a mental health impairment at the time that he carried out the relevant physical acts.

65. I accept these submissions of the parties, which are based on the unanimous views of the two Psychiatrists. I find therefore, that the “first limb” of s.28 is satisfied. In other words, I am satisfied on the balance of probabilities, that the Accused had a mental health impairment at the time he carried out each of the acts alleged in the indictment.

66. The next question (or “second limb” of the test in s.28) is whether I am satisfied on the balance of probabilities that the mental health impairment had the effect that the Accused either did not know the nature and quality of his acts, or did not know that his acts were wrong (in the sense that he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong).

67. Neither the Defence, nor the Crown submitted that the evidence shows that the Accused did not know the nature and quality of his acts. Indeed, the Psychiatrists both said it is possible or likely that the Accused did know the essential nature of his acts.

68. However, Counsel for the Accused submitted that I would be satisfied, on the balance of probabilities, that the Accused did not know that his acts were wrong, in the sense that he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong.

69. Counsel for the Crown, after referring to parts of the evidence of Professor Greenberg and Dr Martin, conceded that the evidence before the Court is capable of supporting the finding set out in s.28(1)(b) of the Act, and that, accordingly, it would be open to the Court to find that the mental health impairment defence is made out.

64. Having reviewed the evidence of the two Psychiatrists, I am satisfied, on the balance of probabilities, that the defence is made out. While a jury, and a court, is not bound to accept expert evidence, it is not permitted to discard such evidence capriciously: R v Hall (1988) 36 A Crim R 368 at 370. In this matter, I accept the submission by Counsel for the Accused that, in effect, the evidence is “all one way”.

65. In this matter, both Psychiatrists were clearly of the opinion that the Accused’s mental health impairment had the effect that, at the time of the acts alleged in the indictment, he did not know that his acts were wrong – in the sense that he could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong.

66. There is in this case no rational reason why I would not accept the evidence of these two experienced Psychiatrists, whose evidence, and reasoning I have set out earlier in this judgment.

67. I am therefore satisfied, on the balance of probabilities, that the defence of mental health impairment is made out, by reason that the Accused did not know that his acts were wrong.

Verdicts in relation to the counts in the indictment

74. As noted earlier, it is for the Crown to prove the guilt of the Accused beyond reasonable doubt. However, in this case, the Accused does not dispute that he engaged in the voluntary acts that are the subject of the counts in the indictment.

75. If the Court is satisfied that the physical elements of the alleged offences have been proved beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of any mental elements: R v Tonga [2021] NSWSC 1064, at [15].

76. In relation to Count 1, I am satisfied beyond reasonable doubt that on 26 October 2022, the Accused intentionally touched KL sexually by smacking and grabbing her buttocks without her consent. I find the act proven, but that the Accused is not criminally responsible for that act.

77. In relation to Count 2, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused intentionally touched SW sexually by groping her breast through her clothing, and then by sliding his hand down her top and grabbing her bare breast. I find the act proven, but that the Accused is not criminally responsible for that act.

78. In relation to Count 3, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused broke into and entered the dwelling house of MM, and that he had penile/vaginal sexual intercourse with Ms MM, without her consent. I find the acts proven, but that the Accused is not criminally responsible for those acts.

79. In relation to Count 4, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused assaulted MM, by placing a chain around her neck such that it was tight and causing her to some extent to be choked, and that this was done without her consent and without lawful excuse. I find the act proven, but that the Accused is not criminally responsible for that act.

80. In relation to Count 5, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused used an offensive weapon, namely a knife or meat clever, which struck MM to the elbow, causing injury, and that he did so with the intention of having sexual intercourse with Ms MM without her consent. I find the act proven, but that the Accused is not criminally liable for that act.

81. In relation to Count 6, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused intentionally touched MM sexually by reaching inside her bra, and grabbing her breast. I find the act proven, but that the Accused is not criminally responsible for that act.

82. In relation to Count 7, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused assaulted MM, by slapping her to the face, and hitting her on the back of the head, and that this was done without her consent and without lawful excuse. I find the act proven, but that the Accused is not criminally responsible for that act.

83. In relation to Count 8, I am satisfied beyond reasonable doubt that on 25 November 2022, the Accused had sexual intercourse with MM, in that he inserted his finger/s into her vagina, and that this was done without her consent. I find the act/s proven, but that the Accused is not criminally responsible for that act/s.

The meaning of my verdicts

84. I consider it important to provide a short explanation of the meaning of the verdicts I have reached, so as to assist all interested persons in understanding those verdicts, and the possible consequences of them.

85. Firstly, while my verdicts have the effect that the Accused is not criminally responsible for his acts, I have found that the Accused did do the acts which each of the Complainants alleged. As Button J said in R v Kirkman [2019] NSWSC 1826, a special verdict (such as ones that I have reached in this matter) does not amount to a complete acquittal.

86. While it is theoretically possible for the Court to order the Accused’s immediate release, that cannot happen unless the Court is satisfied that this would not endanger the safety of the community. There has been no suggestion in the evidence to date that this is a case where it would be appropriate to release the Accused unconditionally.

87. Rather, and what will happen – after I have heard any further submissions from the parties – is that the Accused will be committed, as a forensic patient, to the care and control of the Mental Health Review Tribunal. That specialist body will then consider what form of detention and treatment is appropriate for this Accused. The Tribunal will not order the release of the Accused unless or until it is satisfied that this will not endanger any member of the public, or the Accused himself.

88. Lastly, the fact that I have made findings that the Accused is not criminally responsible does not in any way diminish the fact that three completely innocent women have been assaulted and violated by the Accused’s actions. I have no doubt that for each of them the experience would have been shocking and frightening. This however is obviously an understatement in the case of Ms MM, who suffered an uninvited invasion of her home, followed by a terrifying ordeal in which she was assaulted and raped at knife point. I have no doubt that the incident has, and will continue for some time to have, a very serious impact on her life and psychological well being. She, and indeed each of the Complainants, are to be commended for their bravery in attempting to stand up to the Accused’s actions, and in immediately reporting the incidents to police.

89. Having heard further submissions from the parties, I make the following orders:

1. Pursuant to s. 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, in relation to each of the 8 counts on the indictment, I find the acts proven but that the accused is not criminally responsible by reason of mental health impairment.

2. I refer the accused to the Mental Health Review Tribunal.

3. A copy of my judgment on verdict, the transcript of the proceedings, and the exhibits are to be provided to the MHRT.

4. The Registrar of the Court is to notify the Minister for Health of the terms of the judgment and the orders.

5. Pursuant to s. 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 I order that the accused be detained in a secure forensic hospital or mental health facility pending review by the MHRT. Failing that, he is to be held in the Corrective Services Hamden Pod or similar.

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Decision last updated: 18 June 2024