R v Morgan

[2023] NSWDC 253

District Court

New South Wales

Medium Neutral Citation:

R v Morgan [2023] NSWDC 253

Hearing dates:

11 July 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs 133 - 134

Catchwords:

CRIMINAL LAW – mental health – defendant determined to be unfit to be tried - special hearing – agreement as to appropriate verdicts – whether mental health impairment defence established on the probabilities - appropriate consequential orders

Legislation Cited:

Crimes Act 1900 (NSW) ss 27, 33, 33B, 60, 117, 195

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 4, 28, 31, 32, 54, 56, 59

Cases Cited:

RvDevine (1982) 8 A Crim R 45

RvHatch [2006] NSWCCA 330

R v Markuleski (2001) 52 NSWLR 82

RvShepherd [2003] NSWCCA 351

Vallancev The Queen (1961) 108 CLR 56

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr Jacob Patrick Morgan (defendant)

Representation:

Counsel:
Mr D Robinson for the Crown
Mr I Todd for the defendant

Solicitors:
ODPP
Legal Aid for the defendant

File Number(s):

2021/00170378
2021/00247531

Publication restriction:

Nil

REASONS FOR VERDICTS

Background

1. The defendant is charged on indictment of multiple offences, all allegedly committed on 11 June 2021 as follows:

Charge	Description	Offence provision
1	At Chatswood in the State of New South Wales did steal certain property, namely, one blue coloured Ralph Lauren cap and one dark-coloured “Ellesse” brand jacket, the property of Accent Lifestyle Pty Ltd trading as Glue Store	Crimes Act 1900 (NSW), s 117
2	At Chatswood in the State of New South Wales, did threaten to use an offensive weapon with intent to prevent the lawful apprehension of himself	Crimes Act 1900 (NSW), s 33B(1)(a)
3	At Chatswood in the State of New South Wales, did threaten to use an offensive weapon with intent to prevent the lawful apprehension of himself	Crimes Act 1900 (NSW), s 33B(1)(a)
4	At Manly in the State of New South Wales, did wound Hugo Fraser Stegmann, with intent to cause grievous bodily harm	Crimes Act 1900 (NSW), s 33(1)(a)
5	At Narraweena in the State of New South Wales, did intimidate Adam Yuille with the intention of causing the said Adam Yuille to fear physical harm	Crimes (Domestic and Personal Violence) Act 2007 (NSW), S 13(1)
6	At Narraweena in the State of New South Wales, did intentionally damage the front door of 12/66 Warringah Rd, Narraweena, the property of Adam Yuille	Crimes Act 1900 (NSW), s 195(1)(a)
7	At Narraweena in the State of New South Wales, did assault Paul Rutkowski, a police officer acting in the execution of his duty, and by the assault did occasion actual bodily harm	Crimes Act 1900 (NSW), s 60(2)
8	At Narraweena in the State of New South Wales, did wound Max Moon with intent to murder the said Max Moon	Crimes Act 1900 (NSW), s 27
9 (alt to 8)	At Narraweena in the State of New South Wales, did wound Max Moon with intent to prevent the lawful apprehension of himself	Crimes Act 1900 (NSW), 33(2)(a)
10 (alt to 8)	At Narraweena in the State of New South Wales, did wound Max Moon, a police officer acting in the execution of his duty, and was reckless as to causing actual bodily harm to that officer	Crimes Act 1900 (NSW), s 60(3)

Relevant procedural provisions under the mental health legislation

2. On 16 November 2022, Judge Gartelmann SC determined that the defendant was unfit to be tried. The matter proceeded by way of special hearing before me. Such hearings are determined by judge alone unless a party elects to have the matter determined by a jury^[1] . No such election occurred in this case. Special hearings are to be conducted as nearly as possible as if it were a trial of criminal proceeding^[2] .

   1. Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the Act’), s 56(9)

   2. Section 56(1) of the Act

3. The judge who determines a special hearing must include in the determination, the principles of law applied and the findings of fact on which the Judge relied^[3] .

   3. s 59(2) of the Act

Principles of law

4. My statement of the relevant principles is truncated in the forensic context of agreement between the parties on the facts, which, amongst other things, has obviated the Crown’s need to call witnesses.

5. As the defendant is deemed to have pleaded that he is not guilty to all counts (s 56(5) of the Act), it is my duty and responsibility to consider whether he committed the offences for which he is charged and the appropriate verdicts.

6. At a special hearing, the universe of alternative verdicts comprises: (a) not guilty; (b) a special verdict of act proven but not criminally responsible; (c) that on the limited evidence available, the defendant committed the offence charged, or (d) that on the limited evidence available, the defendant committed an available alternative offence ( s 59(1) of the Act).

Obligation to apply the law

7. I am bound to apply the principles of law contained in these directions to the facts of the case as I find them to be.

Separate consideration of charges

8. There were four complainants and ten charges, the last three charges relating to the same incident. There were, in effect, seven hearings which, for the sake of convenience, have been consolidated into one. Although there are multiple counts on the indictment, it is necessary that I give consideration to the counts separately, bearing in mind that the mere fact that I find the defendant is guilty (on the limited evidence available) of one of the counts does not mean that he is guilty (on the limited evidence available) of all of the counts. The converse applies if I find him not guilty (or some other verdict). It is necessary that I consider the evidence with respect to each individual count and reach a conclusion with respect to each count.

9. The qualification concerns counts 8-10 (incl). Counts 9 & 10 are alternatives to count 8. If I find the defendant guilty of charge 8, it may become unnecessary for me to consider the question of his guilt for counts 9 & 10. Further, if I find the defendant guilty of count 9, it may become unnecessary for me to consider count 10. There is a legislative provision to do with this which I will touch upon momentarily.

10. The evidence relating to each count may be different and the Court in considering each count is only to consider the evidence admissible on each count. Certain matters arise from this general principle, in the circumstances that some of the charges involve the same complainant.

11. Finally, giving separate consideration to the individual counts means that (theoretically) I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.

Markuleski direction^[4]

4. R v Markuleski (2001) 52 NSWLR 82

12. For counts 5 and 6, and count 8 (and the alternative counts 9 and 10), there is a single complainant. If I was to find the defendant not guilty on any count, particularly if that were because I had doubts about the reliability of a particular complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts affecting the same complainant.

13. This general consideration is, however, affected by the circumstance, in the particular forensic context, that no challenge to the content of witness statements of the complainants, Mr Adam Yuille and Constable Max Moon, has been made.

Alternative verdicts

14. Ordinarily, and as indicated, counts 9 and 10 are alternative counts to count 8. If I am not satisfied that the Crown has proved beyond reasonable doubt all the necessary elements of the principal offence (being count 8), then I must find the defendant not guilty of that charge. I would then consider whether the Crown has proved beyond reasonable doubt all the necessary ingredients of the alternative charges 9 and 10 which would be open to me. The ingredients of the principal offence and the alternative charges are not identical. If I find that the Crown has proved beyond reasonable doubt each of the elements of the alternative offence or any of them, then I may find the defendant guilty of the alternative count or any of them. I direct myself that I should not regard the availability of alternative counts (9 and 10) as an invitation to compromise my verdict on the principal offence.

15. However, by reason of s 32 of the Act, if I enter a special verdict of act proven but not criminally responsible in respect of a primary offence (in charge 8), this does not result in a requirement to also enter a special verdict in relation to an offence available as an alternative (such as the offences in charges 9 & 10, respectively) to the primary offence.

Impartiality

16. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion to any or all of the complainants sway my judgment. Having regard to the nature of the offences for which the defendant is charged, in particular, I must strive to avoid any prejudice against the defendant.

Evaluating the evidence

17. I am obliged to determine all relevant questions of fact according to the evidence that has been presented during the course of the trial. That evidence includes the documents within Exhibit A that were jointly tendered.

18. As the sole judge of the facts, I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I must not act capriciously or irrationally.

Drawing inferences

19. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

Burden of proof

20. Section 54 of the Act provides that the defendant is to be acquitted unless the Crown can prove, to the required criminal standard of proof, on the limited evidence available, that the defendant committed the offence(s) charged, or another offence available as an alternative to the offence(s) charged.

21. The burden of proof of guilt of the defendant is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the defendant at all. It is not for the defendant to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. The defendant does not have to prove anything. Suspicion is not a substitute for proof beyond reasonable doubt.

Presumption of innocence

22. It is, and always has been, a critical part of our system of justice that persons tried in court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge(s) beyond reasonable doubt, then the defendant must be found "not guilty" of the charges.

Standard of proof

23. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence in respect of any matter which the Crown must establish to make out its case, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt, then it is my duty to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.

24. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the defendant may be guilty, if I have a reasonable doubt in respect of that matter, the defendant is entitled to the benefit of that doubt, and I must find him not guilty. This is so in respect to the Crown case against the defendant for each count.

25. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the defendant is guilty of the offences charged. The defendant bears no onus of proof in respect of any fact that is in dispute. I say, again, that he is presumed to be innocent until I am satisfied beyond reasonable doubt that he is guilty of the offences charged.

26. The standard of proof is affected by the legislative context for special hearings. Thus, although the standard of proof, for the elements of the offences, remains beyond reasonable doubt, any verdict of guilty would be entered “on the limited evidence available.” This reflects inherent practical limitations upon evidence that a defendant can give.

27. Later, when considering the defence of mental health impairment, on the questions whether a defendant had such an impairment that had the effect of him not knowing that the act(s) by him constituting the several offences was or were wrong, are factual questions to be determined on the balance of probabilities.

The physical elements of the offences

28. I now address the acts of the defendant which the Crown has to prove for each charge. By s 28(4) of the Act, an ‘act’ includes an omission or a series of acts or omissions. As will shortly be explained, however, the acts for the offences generally do not involve omissions by the defendant.

29. I also touch upon other physical elements of the offences which the Crown also must establish, where that is necessary.

Count 1

30. Section 117 of the Crimes Act speaks in terms of ‘larceny’, but underlying the offence for count 1 is the notion of ‘stealing’. ‘Stealing’ involves a combination of circumstances and conduct including the following:

1. that property must belong to someone other than the defendant (a circumstance);

2. that property must be taken and carried away by the defendant (an act); and

3. the taking by the defendant of the property must be without the consent of the owner of the property (an omission and therefore, for the purposes of s 28(4) of the Act, an ‘act’).

Counts 2 & 3

31. The act here is the threat to use an offensive weapon.

32. An ‘offensive weapon’ has a statutory definition^[5] . It includes: a dangerous weapon; or any thing made or adapted for offensive purposes; or any thing that, in the circumstances, is (relevantly) threatened to be used for offensive purposes.

    5. Crimes Act, s 4

Count 4

33. The act here is the wounding of the complainant.

34. “Wounding” is not defined in the Crimes Act. It is defined at common law to involve the breaking of the skin. ^[6]

    6. R v Shepherd [2003] NSWCCA 351 at [31]; Vallance v The Queen (1961) 108 CLR 56 at 77; R v Hatch [2006] NSWCCA 330 at [16]; R v Devine (1982) 8 A Crim R 45 at 47, 52, 56.

Count 5

35. The act for this offence is intimidating another person.

36. To ‘intimidate’ another person is an expression broadly defined in the statute^[7] , but relevantly includes engaging in conduct that causes a reasonable apprehension of injury to the person or violence to the person, or damage to property.

    7. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 7(1)

Count 6

37. The act for this offence is damaging property belonging to another person.

Count 7

38. There are three physical elements here. The first concerns the act. The second is a circumstance. The third concerns a result of the act.

39. The act is that the defendant assaults a person. The second is that the person who was assaulted was a police officer engaging in the execution of the officer’s duty. The third is that the assault occasioned actual bodily harm.

40. As to the act, an ‘assault,’ in the context where physical force is applied, means striking, touching or application of force by the defendant to another person.

41. ‘Actual bodily harm’ is any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim, such as fear or panic at the time of the incident.

Counts 8 & 9

42. The act for both of these charges is wounding, the concept considered in count 4, above.

Count 10

43. The physical elements for this charge involves an act, a circumstance in which conduct occurred and a result of the act.

44. In relation to the first of these physical elements, the act is wounding a person. I have earlier referred to the concept of wounding.

45. As to the second of the physical elements, the circumstance is that the person wounded is a police officer acting in execution of his duty.

46. As to the third of the physical elements, this is that the act occasioned actual bodily harm to the police officer. I have earlier referred to the concept of actual bodily harm.

Proof that the defendant committed the acts making up the charges

General

47. Ms Gwen Ngalob met the defendant, through the Tinder app in March 2018. She physically met him in June 2018 and commenced dating him. She was aware of the defendant’s mental health issues. She initially broke up with him in March 2021 after her concerns about his ice addiction and his consequential erratic and delusional behaviour. After getting back with him for a brief time, she broke up with him again around 21 May 2021.

48. Police obtained a witness statement from her on the date of the alleged offending. She gave an account of what occurred between the defendant and her on that day after he arrived at her place in Parramatta at about 7am. After the defendant entered her place – she had not let him in and it was unclear whether the door to her premises was locked – he barricaded the unit with a couch.

49. Relevantly (for the purposes of the Crown establishing the criminal acts), Ms Ngalob stated to police what the defendant was wearing: a green long (knee length) coat, black jumper, black pants and white runners.

50. She stated that she saw him holding a foldable knife, which she described as a utility knife, with a blade 3 inches long and which also functioned as a screwdriver, plier and scissors. She stated that he was carrying a (green) Woolworths bag.

51. She stated that he had told her that he was going to go to Chatswood, with a friend, Chris. She stated that she was afraid of the defendant and had asked him to leave her unit. She believed he was acting under the influence of drugs and was extremely paranoid. She stated that he left her place at around 10:00am, but he returned 5 minutes later. He started yelling to her outside her balcony. He told her to get his knife for him. She stated that she gave it to him over the balcony.

52. This background was relevant to all charges in relation to identifying the defendant (his clothing and carrying the green Woolworths bag), his unstable behaviour, and, most pertinently, the description of the knife in the defendant’s possession.

Charges 1 -3 (incl)

53. As indicated, each of these charges were alleged to have occurred in Chatswood.

54. In relation to charge 1, the Crown relies upon the witness statement of Mr Alec Henderson, an employee of the retail store, ‘Glue Store’ in the Westfields shopping centre; and a witness statement of Sean Cho, another sales assistant of the same store.

55. Both of them stated seeing a man (the Defendant, who both had given a description of) taking and moving property from within the store and moving the items of property outside the store. Mr Cho was more explicit in identifying the property as a Ralph Lauren cap and a cream coloured Ellesse branded puffer jacket.

56. It is obvious that both items of property were removed out of the store by the defendant. Mr Cho stated that the Defendant did not pay for either item of property.

57. The items were located in the green Woolworths bag that was observed by Ms Ngalob and seen on the defendant’s person after the last of the incidents (giving rise to charges 7-10) at Narraweena preceding his arrest.

53. I am satisfied beyond reasonable doubt that the Crown has proven the defendant’s act of stealing.

Charges 2 - 3

59. Both Mr Henderson and Mr Cho also stated that the defendant held a knife towards each of them as they separately (and bravely) sought to retrieve the items of property. Both (again separately) indicated that the defendant threatened to use the knife against them. I accept that evidence.

60. I find that the knife that the defendant threatened to use against Mr Henderson and Mr Cho (at least) satisfied the requirement of ‘a thing threatened to be used for offensive purposes.’

61. I am satisfied beyond reasonable doubt that the knife in the defendant’s possession was an offensive weapon and that he had threatened to use the knife against each of Mr Henderson and Mr Cho, thereby establishing the acts for charges 2 and 3.

Charge 4

62. The evidence for the act for this charge includes evidence primarily from the complainant, Hugo Stegmann and other documents. There was also expert evidence. The evidence from Mr Stegmann is in a variety of forms, including a triple 000 call (with police and ambulance) and a recorded interview with police on the date of the incident. Witness statements were also obtained from two other persons in the vicinity of the incident.

63. Mr Stegmann reported being stabbed with a knife at the Manly Lawns Tennis Club, which is on the corner of Raglan and Belgrave Street in Manly. He had been playing tennis and had finished around 3:30pm and after finishing at the club house, he was waiting for an uber car to collect and take him home. He noted that the assailant appeared to be on drugs as he was shouting and guessed that he was homeless. He gave a description to the ambulance and police.

64. Mr Stegmann gave an account that the assailant was coming down Raglan street screaming and he looked at the assailant but the assailant told him to look away. Mr Stegmann stood his ground however and the assailant interpreted this as an invitation to fight. The assailant indicated that he had a knife and Mr Stegmann indicated that he was proposing to call the police with his mobile phone. The defendant tried to wrestle that phone from him and stabbed him in the upper left arm, around his shoulder.

65. In his police interview, Mr Stegmann gave a physical description of the assailant matching the Defendant.

66. Dr Sam Chia, an orthopaedic surgeon, opined that Mr Stegmann sustained a 5cm laceration to the left mid upper arm consistent with a knife wound.

67. The Crown also relies upon colour photographs of the laceration and blood emanating from Mr Stegmann’s upper arm or left shoulder.

68. It appears from a record of interview that the defendant agreed to participate in (on 14 June 2021) that the defendant admitted stabbing the ‘guy’ from ‘across the street’.

69. I am satisfied beyond reasonable doubt that the Crown has made out the act of wounding Mr Stegmann.

Charges 5 & 6

70. The Crown relies upon the evidence of the complainant, Adam Yuille, who was 58 years of age at the time, in respect to both of these charges. That evidence emerged in various forms: a 000 call to police; a body worn video interview (with Constable Joshua Lynch) and later a recorded police interview with officers Morris and Meredith at Manly Police Station.

71. In the 000 call, Mr Yuille reported that a man, whose name he identified as the defendant, had tried to kick down the front door of his unit in Warringah Road, Narraweena. Mr Yuille knew the defendant and indicated his understanding that the defendant was schizophrenic. He also reported his awareness of the defendant having a knife in his possession. Mr Yuille stated that he did not want the defendant to come into his premises and, in particular, reported that the defendant had said that he was “trying to bloody hurt me” and that he wanted to “stab me.” He told the 000 operator that he was “shaking”.

72. In his body cam interview with Constable Lynch, Mr Yuille provided further detail. He told the officer that the defendant had come to his place and bashed on the door, saying that he wanted to talk to Mr Yuille and that if he were not let in, he would stab or bash him. He identified the defendant as a friend who had rented a room.

73. In his recorded statement to police at Manly Police station, Mr Yuille indicated that he had previously leased property to the defendant, in 2014. He recalled that the defendant started to take ice and after this, he sought the assistance of authorities to eject the defendant. He understood that the defendant was hospitalised for 2 years. In 2020, he caught up with the defendant. By this time, it appeared that the defendant was working, had a girlfriend and even a car. It appears that the defendant tracked down his address. Mr Yuille mentioned having had an uneventful dinner with the defendant, when he appeared ‘normal,’ and had not seen him again until the date of the incident.

74. Earlier in the day, Mr Yuille received a phone message from the defendant, inviting him over to where the defendant was living (at Carlingford), but Mr Yuille did not answer him. So, the defendant showed up to his place (at about 5:30pm), effectively demanding to be let in and swearing. Moreover, he stated that the defendant started scratching his front door. He heard him tell Mr Yuille that he would kill him if Mr Yuille did not let him in (and that he had just stabbed someone else – a reference to Mr Stegmann). It was this which led Mr Yuille to call the operator.

75. For the purposes of count 5, I am satisfied beyond reasonable doubt that the Crown has proven the act for this charge, being that, by his conduct, the Defendant caused a reasonable apprehension in Mr Yuille of injury to his person or violence to his person.

76. For the purposes of count 6, I am satisfied beyond reasonable doubt that the Crown has proven the defendant’s act for this charge, that by his scratching of the front door to Mr Yuille’s property with his knife, the defendant damaged the property (the extent of damage being immaterial).

Charges 7-10 (incl)

77. All of these charges relate to the same incident. The complainant for charge 7 is Constable Paul Rutkowski. For the balance of the counts, the complainant was Constable Max Moon.

78. For these charges, the Crown relied, materially upon body worn videos of the two police officers referred to (and also a separate video of an officer who later arrived on the scene, Constable Lakeman), and witness statements of the two officers and an expert certificate from Dr Watson.

79. In terms of sequencing, the incident giving rise to these charges followed from Mr Yuille’s report to police. Indeed, Mr Yuille told police in his recorded interview that he could see through the keyhole of his front door that the defendant held the fire extinguisher above his head and thought he was going to use it to strike his door. Instead, it became deployed against the two police officers.

80. Constables Rutkowski and Moon had been involved in the police responses to the reports that they had received of the armed robbery in Chatswood, the stabbing at Manly Lawn Tennis club and the intimidation of Mr Yuille. They inferred that the perpetrator may have been involved in all of these incidents. They apprehended that he would have a knife.

81. They arrived at the apartment building in Warringah Road, Narraweena at about 5:20pm. After approaching a first apartment block and not finding their suspect, they approached another another block and both heard a male screaming and banging a door. They sensed that this was their suspect. Both police officers walked up the stairs to the second level of the apartment building when an object was thrown at Constable Moon, when he was walking up the stairs. Constable Moon stated that it struck him in the back of his head and its impact was such as to cause him to fall over onto the stairs on to his front. Constable Moon described seeing the Defendant with the fire extinguisher, with the nozzle aimed at him and pulling the safety pin out of it. Constable Moon discharged his taser, but became quickly engulfed in the release from the fire extinguisher. Out of the smoke, he saw the defendant moving quickly towards him.

82. Constable Moon stated that he saw the defendant’s righthand swing towards him. Later, when viewing the body worn footage, he observed a metallic object in the defendant’s right hand striking him on his left hand.

83. The defendant and Constable Moon wrestled with each other and the officer’s Taser had discharged. The defendant was holding on to him. Constable Moon tried to discharge his Taser multiple times but this was ineffective. Constable Rutkowski heard Constable Moon grunting. He saw blood coming from Constable Moon’s head. Constable Rutkowski discharged his firearm and struck the defendant. Constable Moon handcuffed the defendant. A knife was located on the ground floor (and was later photographed, in situ).

84. I have viewed the body worn evidence of both officers. It is patently clear that the defendant did release the extinguisher in the direction of Constable Moon, who was upstairs, which emitted smoke and fire retardant struck both police officers. The body worn evidence also showed blood seeping from Constable Moon’s left hand.

85. Constable Moon was later treated at Northern Beaches Hospital for two lacerations to his head, one on the rear left and one on the rear right, for which he received staples. Surgery was performed on his left hand for a laceration and bone fracture. The police officer attributed the laceration to the rear right of his head to the object thrown at him and attributed to the laceration to his left hand to being struck, he thought be a knife, by the defendant. He attributed the laceration to the left side of the back of his head when he was engaged in the wrestle with the defendant.

86. Constable Lakeman, who arrived on the scene later, observed blood on the knife.

87. For charge 7, I am satisfied, firstly, of the act of his assaulting Constable Rutkowski, constituted by his applying force through discharging the fire extinguisher in the direction of Constable Rutkowski (and Constable Moon). The constable complained that his vision of the room was obscured by the fire retardant smoke. That complaint is substantiated when viewing the body worn video.

88. Secondly, I am satisfied beyond reasonable doubt of the other physical elements to the offence, being that: the circumstance that the victim was a police officer acting in the execution of their duty and that the result of the act of assault being that Constable Rutkowski suffered (at least) a level of discomfort, through his breathing in the fire retardant and the physical struggle he experienced with the defendant, so as to constitute actual bodily harm.

89. For charge 8 (and the alternative charges to charge 8, being charges 9 and 10 respectively), I am satisfied beyond reasonable doubt that the defendant committed the act of wounding Constable Moon with his knife, manifested by lacerations to the back of the officer’s head and his left hand.

90. Also for alternative charge 10, I am satisfied beyond reasonable doubt of the remaining physical elements for that alternative charge, being: the circumstance that that Constable Moon was acting in the execution of duty and the defendant’s act caused Constable Moon to suffer actual bodily harm, manifested in a fractured finger.

91. In the result, the Crown has proven all of the acts (and the other physical elements) constituting all of the charges.

The Defence

92. The Crown and Counsel for the defendant jointly submitted that the Court should find that the acts constituting each of the charges are proven but that the defendant is not criminally responsible, under s 59(1)(b) of the Act. To accede to that joint application, the Court must be satisfied that the requirements in s 28(1) and (2) of the Act are met^[8] .

    8. s 59(3) of the Act

93. For the purposes of s 28, the parties jointly submit that at the time of carrying out the acts constituting the offences, on 11 June 2021:

1. on the balance of probabilities, the defendant had a ‘mental health impairment;’ and

2. that mental health impairment had the effect that the defendant did not know that the acts were wrong (that is, the defendant could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, was wrong).

94. ‘Mental health impairment’ is defined in s 4(1) of the Act. It means that the defendant:

1. has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

2. the disturbance would be regarded as significant for clinical diagnostic purposes, and

3. the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

95. By way of further clarification, s 4(2) of the Act provides that:

“A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a) an anxiety disorder,

(b) an affective disorder, including clinical depression and bipolar disorder,

(c) a psychotic disorder,

(d) a substance induced mental disorder that is not temporary.”

96. By s 31 of the Act, the Court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—

1.  the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and

2. the defendant is represented by an Australian legal practitioner, and

3. the court, after considering that evidence, is satisfied that the defence is so established.

97. I interpose to find that requirements (a) and (b) in s 31 are, for the reasons already indicated, plainly met.

98. The real issue for me to decide is requirement (c), that is whether I am satisfied that the defence of mental health impairment is established.

Is a mental health impairment established?

Lay and documentary evidence

99. Some other evidentiary material, which was not necessary to refer to earlier in these reasons on the subject of proof of the acts, was in evidence to support the aspect of mental health impairment.

100. The defendant’s ex-partner, Ms Ngalob, gave evidence of incidents occurring within her unit on the morning of 11 June 2021. Earlier I referred to her statement about the defendant barricading her unit. She also stated (amongst other things) that the defendant had received messages on WhatsApp from the ‘Illuminati’ instructing him to film her to say that she would not talk to the police and ‘it’ wanted him to pay $1,000 for the defendant to ‘have immunity’. She observed him burning candles and slicing the right palm of his hand as a blood ritual.

101. Constable Craig Byrne obtained text messages exchanged between the defendant and Ms Ngalob. At 5:20pm on 11 June 2021, the defendant sent a text message to Ms Ngalob which read: “Adam (Yuille) won’t let me in .. If cops come here it’s on .. Like on on .. To the death.”

102. In what appeared to be another text message to Ms Ngalob, the defendant made the following statements:

“Lol gwen

I’m on ASIOS watch list as a satanic ecological terrorist

….

I get traced followed and watched everywhere I go

I can’t get on the bus without being followed

I man shoot on sight no questions asked

They read my mind more than anyone else’s in Australia

Not coz I’m the most hektik criminal

But coz I’m a danger to the country and it’s systematic Machine”

103. In his witness statement, Constable Byrne referred to Ms Ngalob informing him that on 7 June 2021, four days before the events in question, he had woken her up and requested band aids for a cut on his hand and that the defendant had told her that he had completed a ‘blood oath’ for the ‘Illuminati’. On 11 June, at the defendant’s request, she had also cut her hand. Constable Byrne obtained video footage of this particular act of self-harm.

104. There was evidence, also, of a text between the defendant and an unknown addressee, in which the defendant communicates with ‘the Illuminati.’ Interspersed with messages from ‘the Illuminati’ the texts record the defendant stating (amongst other things):

“Hi supreme lord, I’m interested in joining. I am a recording artist. I’m not big on pooling money but I am the (Inquisition) … I’m nearly 30 mate.

There’s a lot you could learn about and from me. I ain’t your average cat mate……

I wanna join the Illuminati basically because I am a fully awakened 4d Lightworker at least my soul is 4d not much for others to say and I wanna help save the world …. I know of your global power and I want to help …

Any my joining purpose is I want to make a difference to this world and to do so I need to be recognised for who and what I am all I have done.. I have been falsely diagnosed with an illness. Saying I have a chemical imbalance that causes my illness when in fact I am not ill. I am just not like other people. The esp I hear is from the other realms and outer reach of space. Of this I am sure. Nor mortal man can stop me.”

105. In relation to the incident in Chatswood, Alec Henderson made behavioural observations about the defendant appearing ‘shakey … affected by drugs because his face was really aggressive.’

106. In relation to the incident at Manly, behavioural observations of the defendant, as he was being driven on a bus, were made by Cyrus Tualima and his younger brother, James Tualima and Sean Keown. Both of them referred to the defendant listening to music on his phone and screaming about kids (hearing the defendant saying “fuck the kids”). James described him as appearing angry and scary. Sean Keown recalled the defendant talking ‘some weird shit,’ including ‘fuck the kids.’

107. Before he was stabbed Mr Stegmann alluded to the defendant screaming loud things, including obscenities and threatening statements near Manly Oval. Mr Paul Haynes and Ms Emily Tonkin also gave statements referring to the defendant. Mr Haynes recalled him swearing a lot. Ms Tonkin recalled him appearing vey agitated and yelling.

108. Mr Yuille described the defendant as appearing ‘psychotic.’

109. A video recording of the defendant was in evidence, (taken by Constable Moss) whilst the defendant was being transported by ambulance to a hospital. I recognise that by this stage the defendant had been shot. Nevertheless, the defendant made statements to the paramedics that were audible and which were consistent with delusional and disordered thought processes otherwise evidenced on that day.

Expert opinion evidence

110. The Crown and the defendant’s Counsel jointly tendered reports of two forensic psychiatrists, Dr Richard Furst (who had been engaged by the defendant) and Dr Adam Martin (who had been engaged by the Crown). Both psychiatrists are undoubtedly professionally qualified and experienced in the assessment and management of mental illness.

111. Both psychiatrists interviewed the defendant on separate occasions in 2022, although, in each case, this was by means of audio-visual assessment.

112. Both experts prepared two reports. In each case, a focus, or principal purpose, of each expert’s first reports was to address the defendant’s fitness to plead; whereas the focus, or principal purpose, of both experts’ second reports was to address the potential availability of a mental health impairment defence to the charges.

113. In his first report (16 April 2022), Dr Furst opined that the defendant met the criteria for diagnoses of schizophrenia (being chronic and treatment resistant) and a substance use disorder (methylamphetamine).

114. In his first report (6 June 2022) Dr Martin also diagnosed the defendant as having schizophrenia. He observed that during the course of his interview, the defendant displayed severe disorder of thought and multiple delusional ideas of a bizarre, persecutory and grandiose nature. Dr Martin described him as being ‘grossly mentally ill.’ He also opined that schizophrenia was frequently associated with and exacerbated by substance use. This was the position here, with the defendant’s lengthy history of substance use disorder.

110. I find that the defendant does have a mental health impairment.

Did the defendant have a mental health impairment at the time of carrying out the acts, and did such impairment have the effect that the defendant did not know that the acts he committed were wrong?

116. These questions were considered by both psychiatrists in their respective second reports.

Dr Furst’s expert opinion evidence

117. In his second report (17 April 2023) Dr Furst thoroughly canvassed the police brief.

118. Dr Furst started with the statement of Ms Ngalob and considered that her observations were consistent with the defendant being acutely psychotic on the morning of 11 June 2021.

119. Dr Furst considered the evidence about the events at Manly and in the apartment at Narraweena, involving harm, initially to Mr Yuille, and thereafter harm to the two police constables. As to the incident in Manly, Dr Furst noted that the defendant had been observed talking to himself on the bus travel to Manly and shouting obscenities prior to stabbing Mr Stegmann.

120. Dr Furst also took into account the video footage obtained. This included the defendant’s own video recording on his phone, which referred amongst other things, to his engaging in a blood ritual. Constable Moon’s body worn footage evinced the defendant’s hostility to the police. Reference was also made to Constable Moss’ recording of the defendant when the latter was being driven by ambulance to hospital further demonstrated multiple disjointed thoughts and delusional references.

121. Overall, he opined that the defendant was acutely psychotic on 11 June 2021. The signs of psychosis were evident to his ex-girlfriend (apparently a mental health nurse herself). Text messages regarding the ‘illuminati’ were nonsensical.

122. He concluded that the defendant’s thinking was grossly and acutely disturbed by paranoid precepts, illogical thinking and thought disorder which prevented him from reasoning with a moderate degree of sense and composure about whether his acts, which I referred to at length in relation to each of the charges, and as perceived by reasonable people, were wrong.

Dr Martin’s expert opinion evidence

123. Dr Martin also reviewed evidence in the police brief.

124. He noted the defendant’s admission as to stabbing Mr Stegmann at Manly and also Mr Stegmann’s reference to the defendant screaming loud things in an aggressive way.

125. Dr Martin also noted the witness statements of the two shop assistants at Chatswood and, in particular, their observations concerning a lack of steadiness.

126. He noted Mr Yuille’s description of the defendant as appearing agitated and threatening, which was indicative of highly disturbed behaviour.

127. He also noted the circumstances in which he had acted aggressively and uncooperatively with the police culminating in the physical tussle with the two police officers at Narraweena and himself getting shot.

128. Like Dr Furst, Dr Martin regarded the text messages from the defendant containing bizarre thought content around the ‘Illuminati.’

129. Taking into account all of these things, Dr Martin opined that the defendant had a defence of mental health impairment available to him. He was severely mentally ill with psychosis. He suffered persecutory delusions and a disturbed mood in the context of schizophrenia (chronic and severe mental illness) and his disturbance was not transient. Further, the disturbance could not be seen to be solely as a consequence of substance use.

130. He regarded it as reasonably arguable that the defendant had a mental health impairment that had the effect that the defendant did not know the nature and quality of his acts, and did not know that the acts were wrong: he could not reason, with a moderate degree of sense and composure whether the acts, as perceived by reasonable people, were wrong.

Finding

131. In respect to each and every charge, I find on the balance of probabilities, that at the time of carrying out all of the acts constituting the respective counts on the indictment, the defendant had a mental health impairment, being schizophrenia of a chronic and treatment resistant nature, and that this impairment had the effect that the defendant did not know that the respective acts were wrong; that is, he could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, was wrong.

132. Thus, for the purposes of ss 28(1)(b) and 31(c) of the Act, after considering the evidence, I am satisfied a defence of mental health impairment is established in respect to each and every charge. I have already indicated that the other requirements in s 31 are satisfied.

Verdicts

133. In accordance with ss 31 and 59(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW):

In respect to count 1: a special verdict is entered of act proven but not criminally responsible

In respect to count 2: a special verdict is entered of act proven but not criminally responsible

In respect to count 3: a special verdict is entered of act proven but not criminally responsible

In respect to count 4: a special verdict is entered of act proven but not criminally responsible

In respect to count 5: a special verdict is entered of act proven but not criminally responsible

In respect to count 6: a special verdict is entered of act proven but not criminally responsible

In respect to count 7: a special verdict is entered of act proven but not criminally responsible

In respect to count 8: a special verdict is entered of act proven but not criminally responsible

Other orders

134. By a combination of ss 33(1)(b), 34 and 61(2) of Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and with the consent of the Crown and Counsel for the defendant, it is further ordered that:

1. the defendant is to be detained at a correctional centre, or such other place as may be determined by the Mental Health Review Tribunal (the ‘Tribunal’), until released by due process of law;

2. the Registrar is to notify the Minister for Health of these orders within 7 days;

3. the defendant is referred to the Tribunal;

4. the Registrar is to notify the Tribunal of these orders within 7 days and is to provide the Tribunal with:

1. a copy of these reasons for verdicts and orders; and

2. a copy of Exhibit A in this special hearing;

5. the Registrar is to notify Justice Health of these orders within 7 days and is to provide Justice Health with:

1. a copy of these reasons for verdicts and orders; and

2. a copy of the reports of:

1. Dr Richard Furst dated 16 April 2022 and 17 April 2022; and

2. Dr Adam Martin, dated 6 June 2022 and 7 July 2023

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Endnotes

Decision last updated: 13 July 2023