R v Sleiman

[2010] NSWSC 1206

CITATION:	R v Sleiman [2010] NSWSC 1206 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 October 2010
JUDGMENT DATE :	20 October 2010
JUDGMENT OF:	Schmidt J
DECISION:	Not guilty by reason of mental illness.
CATCHWORDS:	CRIMINAL LAW - judge alone trial - murder - defence of mental illness
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Mental Health (Criminal Procedures) Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659 R v Coles [2008] NSWSC 682 R v Coleman [2010] NSWSC 177 R v Huy Pham [2007] NSWSC 1313 Regina v M’Naghton (1843) 8 ER 718 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358
PARTIES:	Regina Omran Sleiman
FILE NUMBER(S):	SC 2010/10647
COUNSEL:	Mr T Thorpe (Crown) Mr P Winch (Accused)
SOLICITORS:	Office of the Director of the Public Prosecutions (Crown) Public Defender (Accused)

- 28 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

WEDNESDAY, 20 OCTOBER 2010

2010/10647 R v SLEIMAN

JUDGMENT

1 HER HONOUR: Pursuant to s 18 of the Crimes Act 1900 Omran Sleiman is charged with the murder of David Phillip Williams on 11 January 2010 at Belmore in the State of New South Wales. Under s 132(1) of the Criminal Procedure Act 1986 he has elected to be tried by a judge sitting alone. The Crown has consented to that election. A plea of not guilty has been entered by the accused, who has relied on the defence of mental illness.

2 Under s 133(1) of the Criminal Procedure Act, a judge trying a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt. A judgment by a judge in such cases must include the principles of law applied by the judge and the findings of fact upon which the judge relies (s 133(2)). If any act or law requires a warning to be given to a jury, the judge is to take the warning into account in dealing with the matter (s 133(3)).

3 There was no issue under the Mental Health (Forensic Provisions) Act 1990 as to the accused’s fitness to be tried for the offence with which he has been charged. I am satisfied that the evidence established his fitness. The accused is presumed innocent. He gave no evidence, but no adverse inference flows from that election. The accused does not dispute that he was responsible for the acts which caused Mr William’s death. His defence was based on evidence which both parties accept showed that at the time that he caused Mr William’s death, the accused was suffering from a mental illness, schizophrenia or paranoid schizophrenia.

4 It follows that if I am satisfied that the Crown has proven the elements constituting the offence of murder, I am required to consider the defence of mental illness which the accused has raised.

What occurred on 11 January 2010

5 The parties agreed as to the facts.

6 Mr Williams was formerly known as Isam Alnimer. The accused came to know Mr Williams in August 2009, after he had placed an advertisement on the internet, seeking a flatmate to share his premises at Yangoora Rd Belmore. Mr Williams responded to that advertisement and the two men then met. It was agreed that they would share the flat for a weekly rental of $130 to be paid to the accused in advance and by way of a further payment of rent as a security bond, also paid by Mr Williams.

7 Mr Williams took up residence with the accused, but the arrangement only lasted less than two weeks. The precise dates are not known. Mr Williams moved out, but he and the accused remained in periodic phone contact. The security bond was not repaid.

8 At 9.24 pm on 11 January 2010, Mr Williams phoned the accused. He went to the flat a few minutes later and the accused let him enter. They sat on the lounge and spoke. During the conversation Mr Williams slapped the accused on the face in a disrespectful manner and called him a dickhead.

9 The accused then picked up a knife which was under, or near the lounge. He thrust the knife at Mr Williams, striking him in either the lower left arm or the upper right leg. A scuffle ensued during which Mr Williams and the accused moved out onto the balcony. Mr Williams picked up a chair and held it to towards the accused, in an attempt to defend himself. The accused stabbed Mr Williams a number of times to the left chest and armpit area. Mr Williams fell to the floor of the balcony and began to make gurgling sounds.

10 The accused went inside the flat and washed blood from his hands, changed out of the Nike shorts which he was wearing and put on jeans, a blue Lonsdale t-shirt and shoes.

11 At 9.51 pm the accused phoned 000 from his mobile phone. He indicated his address and said that he thought that Mr Williams was dead. He phoned 000 a second time at 9.55 pm. He then said that he had left the flat and that ‘I stabbed this guy and I think he’s dead’. He had left the door of the flat unlocked, with the lights switched off.

12 Ambulance officers arrived at the flat a short time later. They found Mr Williams lying on the floor of the balcony in a pool of blood. There were no signs of life. Mr Williams’ body was moved a short distance and his vital signs were checked.

13 Police attended and secured the flat as a crime scene. A blood stained hunting style knife was located in the lounge room.

14 At 10.21 pm the accused again telephoned 000 and told the operator where he was. Police investigators went there and arrested him. At Campsie Police station in an electronically recorded interview, the transcript of which was in evidence, the accused admitted that:

"a. he had stabbed Mr Williams a number times;

b. he had done so because Mr Williams had been disrespectful and was 'playing mind games' with him;

c. he stabbed Mr Williams with the knife to show him that he should not " fuck with him ";

d. he had wanted to hurt Mr Williams, but did not want to kill him; and

e. his own life " wasn't at risk for me to respond in that way so I can't claim self-defence" .

f he had experienced a number of what he described as "paranoid" thought processes which included his perceptions of the conduct of Mr Williams acting as an undercover operative for a number of international security organisations including Mossad and ASIO and that Mr Williams had been trying to control his thoughts;

g. he " gets visions of things happening " and Mr Williams transmitting his thoughts to other clandestine operatives; and,

h. he had not taken his Zyprexa medication for 3 to 4 weeks, but had taken 20 milligrams of Valium a couple of nights ago."

15 The autopsy report prepared by Dr Szentamariay was in evidence. At autopsy, 12 sharp force injuries were found, including 3 stab wounds to Mr Williams’ chest, which had injured both lungs, which had caused haemorrhage in both sides of the chest and air entrapment in the chest cavity, preventing further lung movement and respiration. Some wounds were located on the back, others on the arm and thigh. One relatively large defence type injury was found on Mr Williams’ left wrist. Sharp force injuries were also found to have caused marked haemorrhage. The cause of death was concluded to have been multiple stab wounds.

Proof of the charge

16 The onus falls on the Crown to prove the elements of the offence of murder with which the accused has been charged, beyond reasonable doubt. The elements of this offence are that:

1. David Phillip Williams died.

2. That his death was caused by the acts of the accused, Omran Sleiman.

3. That at the time of committing those acts Omran Sleiman committed those acts with reckless indifference to human life, or with intent, either to kill David Phillip Williams or at least, to cause him grievous bodily harm.

17 As I have said, the accused has the benefit of the presumption of innocence. The Crown must prove all elements of the offence charged. The accused raised no issue concerning proof of any of the elements of this offence. There was no dispute that the evidence established, to the requisite degree, that the accused’s acts were done with an intention that makes what he did murder. No issue of self defence was raised.

18 I find that Mr Williams’ death was caused by the fatal stab wounds which the accused inflicted on Mr Williams, while he was at the accused’s home on 11 January 2011, where a blood covered hunting style knife was found, after the accused alerted the 000 service to what he had done. Both the accused’s statements to the police that night and the assessments later made by Dr Allnut and Dr Nielssen showed that the accused had an understanding of what he had done.

19 The evidence has led me to be satisfied that it is beyond reasonable doubt that by his acts in repeatedly stabbing Mr Williams, the accused caused his death while possessing the requisite intent, namely of at least causing Mr Williams grievous bodily harm.

The defence relied on

20 The other issue to be determined is whether the accused has available to him the defence of mental illness, pursuant to s 38 of the Mental Health (Forensic Provisions) Act 1990. I note that both the accused and the Crown submitted that the evidence was such that the Court would conclude that the defence had been made out.

21 Section 38 provides for a special verdict that an accused person is not guilty by reason of mental illness, if the evidence at the trial establishes that the accused person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done. If it appears that the person did the act in question, but was mentally ill at the time, a special verdict that the accused person is not guilty by reason of mental illness must be returned. If a special verdict of not guilty by reason of mental illness is returned, the Court may remand the person in custody until the making of an order under section 39 of the Mental Health (Forensic Provisions) Act in respect of the person.

22 The onus of proof of a defence of mental illness rests on the accused, on the balance of probabilities (see Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659). The term ‘mental illness’ is not defined in the Mental Health (Forensic Provisions) Act. The test which must be considered when a defence of mental illness is relied on, is discussed in Regina v M’Naghton (1843) 8 ER 718. Mentally ill in this context means suffering from a ‘defect of reason’ or ‘a disease of the mind’, so that the accused did not know the quality and nature of the physical acts which he was doing, or alternatively, if he did know, that he did not know that what he was doing was wrong. Knowing what is wrong is not the same as knowing that the act committed is against the law (see Stapleton v The Queen [1952] HCA 56; (1952) 86 CLR 358 at 367).

23 In this case there is no issue that the accused was suffering a serious mental illness at the time of Mr William’s death and that he had been suffering such mental illness for a considerable period of time beforehand. There is no suggestion that as the result of his mental illness, the accused did not know the quality and nature of the physical acts which led to Mr Williams' death. The defence was pressed on the basis that owing to his disease of the mind, the accused did not know that what he was doing was wrong.

24 It is the accused who must establish that at the time that he stabbed Mr Williams, because of his mental illness, while he caused Mr Williams’ death, he did not understand that what he was doing was wrong. In The King v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-90, Dixon J of the High Court explained that the accused must prove that the disease, disorder or disturbance of the mind from which he was suffering, whether arising from some infirmity, temporary or of long standing, was of such a character that he was not able to appreciate the wrongness of what he was doing. His Honour explained what the accused must show at 189 - 90, observing:

"The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."

25 Despite the common ground which the parties reached as to the defence, I take the view that in this case, given what the evidence must show in order that the defence be found established, the basis upon which the defence was advanced and what is revealed in the medical reports in evidence, it is necessary to consider the evidence going to the accused’s mental state, with particular care.

The accused’s mental state

26 The accused was examined by a psychiatrist Dr Nielssen on 3 March 2010. Dr Nielssen provided a report dated 1 June 2010. On 17 June, the accused was also examined by a forensic psychiatrist, Dr Allnut, who provided a report dated 2 July 2010. He had earlier examined the accused in 2007.

27 The psychiatrists were briefed with various material not in evidence, including a transcript of the accused’s criminal history and police facts for prior offences of violence; a report by a psychologist who examined the accused in April 2010; his medical records from Sydney South West Area Health Service, including a report from the Director of Clinical Services dated 12 January 2010 and his Justice Health medical record. Various references were made to such material in the reports.

Dr Nielssen

28 Dr Nielssen made a diagnosis of schizophrenia in partial remission, as well as substance abuse disorder in partial remission. The schizophrenia diagnosis was based on a history of typical symptoms, a documented history of persecutory beliefs and previous involuntary treatment, as well as aspects of the accused’s presentation when interviewed by police on 11 January 2010 and when interviewed by Dr Nielssen. Vivid auditory hallucinations, thought broadcasting and a pattern of persecutory beliefs typical of the disease were noted. At the time of the offence the accused was affected by symptoms of acute relapse of illness brought about by stopping regular treatment with antipsychotic medication about 6 months previously.

29 The history which the accused gave Dr Nielssen was that he had been treated for schizophrenia for three years and that he had first received treatment during his previous term of imprisonment for an assault, but his first admission to a psychiatric hospital was in 2001.

30 The accused said that he had experienced hallucinations of voices for five years when he did not take drugs and he assumed that people were following him. Symptoms were controlled by medication prescribed during imprisonment in 2007. On release he was given medication and referred to the local community health centre for further care. He stopped taking the medication after about 7 to 8 months before the offence and the symptoms then came back.

31 The accused explained that he had stopped taking medication because ‘I thought it was better’. His previous treatment had been a condition of a Community Treatment Order. When the order expired he stopped attending for prescriptions and stopped taking medication. He did not recognise the return of symptoms. He thought they were real. He attended the local community health centre to tell staff he was being followed, there were bugging devices in his shoes and that people were trying to make him into a suicide bomber. Arrangements were made to take him to Concord Hospital from which he absconded. He then avoided contact with mental health services for three months between his admission to hospital and the offence.

32 He had been visited at home by police and community health centre staff. He assured them that he would take medication to avoid re-admission, but did not do so. The mental health team attempted to place him on a Community Treatment order as an outpatient. A hearing had been scheduled, but there was a delay and the offence occurred before the hearing took place.

33 The accused told Dr Nielssen that Mr Williams was a Palestinian, who said he had lived in Israel for three years. The accused assumed he was a Mossad agent because Mr Williams spoke Arabic so well. Mr Williams worked in a security capacity, but was very secretive about his activities. While they were living together, he concluded that Mr Williams was going to make him into a suicide bomber. After he disclosed his concerns, Mr Williams teased him, calling him ‘e jihad’ which means ‘martyr boy’ in English.

34 The accused heard voices that he believed were Mossad agents discussing him and the presence of cameras and microphones in the house. He believed that Mr Williams was sending him signals and downloading his thoughts. Mr Williams lent him a car which he used in the course of stealing offences. What Mr Williams said made him believe that a bomb would be put in the car to turn him into a suicide bomber without his knowledge. He thought the Federal police, ASIO and the NSW police were involved.

35 He had no major fights with Mr Williams but he said things which scared the accused. He found Mr Williams intimidating. He kept a knife in the corner of the couch because he was afraid that his life was in danger. He had previously cut himself with the knife in response to voices. He did not kill Mr Williams in self defence, but believed that he was about to attack him. He was afraid and Mr Williams responded aggressively when confronted.

36 In 2001, he had been treated for an episode of drug induced psychosis. The voices returned soon afterwards, usually associated with continued drug use. About 5 years ago he experienced voices even when not using drugs. There had been an abatement of symptoms since the resumption of treatment following his arrest in January 2010. The accused now realised that the voices had abated and that his beliefs regarding Mr Williams were delusional.

37 The accused reported drug use from age 15, including ecstasy, cannabis and cocaine, which stopped around the age of 23. He had only used amphetamines twice in the four years leading up to the offence. He was aware of the association between drug use and the development of psychotic symptoms. He occasionally drank alcohol, but not to excess and reported no alcohol abuse. He also reported problem gambling and committing offences in order to obtain money for gambling.

38 The accused was born in Australia. His older brother committed suicide after treatment for schizophrenia. He believed an uncle may also have been mentally ill, but was not aware of his treatment. He attended local primary schools in the Darlinghurst area to age 11 and then went to school in Lebanon. He returned to Australia aged 15 to live with an uncle who mistreated him. He ran away and had lived independently since. He committed property related crimes during the course of his drug use and problem gambling.

39 Dr Nielssen noted a calm and coherent demeanour for most of the accused's interview, but a guileless account of symptoms and beliefs. A history of convictions for dishonesty, drug and assault offences were noted, as well as several matters dismissed under s 32 of the Mental Health (Criminal Procedures) Act 1990.

40 Dr Nielssen noted that the accused was initially suspicious in manner, distressed when discussing his circumstances at the time of Mr Williams' death, disorganised in his speech and apparently distracted by hallucinations and hearing voices during the interview. He said that he recognised they were symptoms of his illness and no longer believed he was the subject of surveillance or the victim of a conspiracy by security services. He was also able to provide a reasonably sequential history and his registration and retrieval of information and other aspects of his intellectual function were thought to be largely unimpaired. His intelligence was in the normal range, given his vocabulary and verbal fluency.

41 Dr Nielssen was of the view that the defence of mental illness was open; that the accused was acutely mentally ill at the time of Mr Williams' death; and that his behaviour was directly related to the effect of symptoms of the mental illness. The accused had a defect of reason in the form of delusional beliefs about Mr Williams, which arose from an acute exacerbation of his chronic schizophrenia illness. His symptoms affected his ability to recognise that his actions in killing Mr Williams were wrong, because he believed that Mr Williams was conspiring to make him a suicide bomber. In his acutely psychotic state he was unable to reason with any sense or composure about the alternative causes of action available to him, for example, seeking treatment.

42 Dr Nielssen was also of the view that the defence of substantial impairment by abnormality of mind was available to the accused on the basis of the effects of his mental illness. His assessment was, however that the accused required indefinite treatment by a mental health service and that a manslaughter verdict might not lead to adequate long term supervision or treatment.

Dr Allnut

43 Dr Allnut was of the view that the accused met the criteria for a diagnosis of chronic paranoid schizophrenia.

44 The accused reported that he had last heard voices a few weeks previously and that he was not hearing voices when he saw Dr Allnut. He had experienced flashes of the deceased, but they had dissipated. Paranoid thoughts still occurred intermittently, triggered by the way somebody looked at him, which triggered thoughts of conspiracy. He described past thoughts of ASIO, Mossad and police following him and monitoring him in various ways, with the result that he had to change his clothes constantly, because he thought bugs were inside his clothes. He had also changed his phone a number of times. Initially he thought they followed him because they believed he was a terrorist, but then he started thinking that they were trying to kill him, by making him act like a suicide bomber and that they were trying to make him insane. He described messages from God and the Devil received on television or a movie. He heard derogatory comments about him inside other peoples heads, particularly Mr Williams. In gaol he came to believe that there were police informants present. He was still anxious that others might want to attack him.

45 The accused told Dr Allnut he now realised that he had previously been mentally unwell.

46 The previous psychiatric, family, medical and substance abuse history which the accused gave to Dr Allnut was similar to that given to Dr Nielssen. At the time of Mr Williams’ murder, the accused was an unemployed 29 year old man, who had come to Australia without his parents as a young teenager. He had a troubled history at school, running away from home and stealing, with drug use and two admissions for his mental condition. His brother had schizophrenia and committed suicide.

47 In 2007 he has been on a community treatment order and had remained on antipsychotic medication for 10 months. He ceased taking the medication when the order expired, because he felt better. His symptoms resumed and 7 to 8 months before Mr Williams' murder, he was experiencing persecutory beliefs and auditory phenomena.

48 The accused advertised his flat because he needed money. He was then seeing the Canterbury Mental Health Service, who he consulted on the second day that Mr Williams came to live with him. He became concerned by what Mr Williams told him, that he was an agent from Mossad sent to get him. He went to the Canterbury Mental Health Service and told them of his fears and was admitted to hospital. He did not believe that he was mentally unwell, but was convinced that Mr Williams was Mossad. He ran away from the hospital and returned home. He refused to open the door when he was found by the Mental Health Service. A locksmith was used to open the door and he was interviewed. He then said that he did not believe his delusions anymore, because he did not want to go back to hospital. He said that he would take his medication, but only did so a few times. He stopped seeing the Mental Health Service a few weeks before Mr Williams' death. He told them he did not want to go see them anymore. The Mental Health Service wanted to impose a community treatment order, but the hearing was adjourned. The offence occurred before the hearing proceeded.

49 After Mr Williams moved out, he came to see the accused, who thought that Mr Williams might be trying to poison him. The accused changed his phone number, but gave the number to Mr Williams when he encountered him in the street about six weeks later. Mr Williams came to see him about two weeks before his death. At that time the accused thought that Mr Williams was playing games with him and concluded that he was under surveillance.

50 In January 2010, he was stressed out from his paranoia. He was preoccupied with thoughts of being persecuted by various intelligence agencies including Mossad, being under surveillance and that they were monitoring him.

51 On the day of Mr Williams' death, the accused believed that Mr Williams intended to rig a car with explosives to have it look like a suicide bomb, so that people would think that Arabic people had done it, when in fact it was Israel behind the bombing At the flat, they discussed defrauding the government and stealing goods. The accused told Mr Williams that he believed that he was Mossad. That was when Mr Williams slapped him in the face. He always kept a knife under the couch for protection and lent over grabbed it and stabbed Mr Williams. He wanted to stop the harassment and to force other agents who he believed were outside in a car watching, to come to Mr Williams' rescue and that this would blow up their plans. He believed that Mr Williams was downloading evil thoughts into his head. He did not want to kill Mr Williams but things got out of hand. After he stabbed Mr Williams they started fighting. It was during this time that he must have hurt him critically.

52 He realised that Mr Williams was not in good shape. He left because he was scared and thought that more agents would be after him. He thought it best to turn himself into the police, believing that if he stayed in the streets, he would be shot. At the time he was not taking his medication consistently. He never thought he needed it, having been discharged from hospital about three months previously.

53 When asked by Dr Allnut if he thought what he had done was right, the accused said ‘they had been tormenting him for too long, he was sick and tired of the harassment, they spoke to him in derogatory terms all the time’.

54 Dr Allnut made extensive reference to the accused’s history. He noted that the documents which he had reviewed, which were not themselves in evidence, revealed that in February 2007 the accused was diagnosed with psychosis with co-morbid gambling problems, poly substance abuse and probable paranoid schizophrenia, with a differential diagnoses of a drug induced psychosis or organic causes. He was later found to be manifesting florid psychosis, persecutory delusions and auditory hallucinations. In March 2007, he was considered to have symptoms of a major depressive disorder with schizophrenia. He improved with treatment during March.

55 In May 2007, there was a relapse with paranoid delusions with persecutory themes. The accused was referred to the Community Mental Health Service. In May 2007, Dr Allnut saw the accused and diagnosed a chronic psychotic disorder with a differential diagnosis of schizophrenia and schizoaffective disorder, with persecutory delusional beliefs and auditory hallucinations. Dr Allnut did not then think that a drug induced psychosis was attributable, given the accused’s persistent symptoms. At that stage, amongst other things the accused thought the television was communicating with him. Dr Allnut then considered the accused eligible for consideration under s 33 of the Mental Health (Criminal Procedures) Act (which permitted a defendant to be detained for assessment in a hospital or to be discharged into the care of a responsible person.)

56 The accused was assessed by the Rockdale Mental Health Service in June 2007. A July 2007 report noted that he was then receiving treatment for psychosis as a voluntary patient. Application for compulsion was made. He was a client of Connections Recent Onset Psychosis team from 15 June 2007. In October 2007 continued treatment became part of a bail condition.

57 Dr Allnut referred to progress notes spanning from October 2007 to 14 January 2010, described as ‘community follow ups’. In October 2007, the accused had been seeing St George Services for 4 months. He moved to the Canterbury area and there were then numerous contacts with him to the end of 2007, although some difficulties experienced in making contact with him. He denied symptoms and compliance with assessments was limited. In December 2007 the assessment was that he was stable and in remission. His contact with the Mental Health Service waned in 2008. He presented again with paranoid symptoms in August 2009, when there was contact with police and a home visit, when marked paranoia was observed. He wanted a letter to give to Courts to have ASIO stop following him and he believed that his flatmate worked for Mossad and might have bombs and might poison him. A schedule was issued and he was hospitalised, but he went AWOL. He was assessed further in September, after the order expired. While observed to be hyper vigilant, he denied paranoid ideas and claimed to be taking medication.

58 In early September 2009 there was another involuntary admission after referral by the Canterbury Acute Care Team, describing persecutory delusions, including auditory delusions. He settled over 48 hours. By 4 September he was compliant to medication, manifesting insight and allowed to leave. On 7 September he was reviewed and showed good insight, but did not return from leave. The Canterbury Community team was asked to facilitate his return to hospital. He could not be presented to the Magistrate on 22 September 2009, but was regarded as having had a psychotic episode, but to be in remission. On 29 September he advised by phone that he was well.

59 On 1 October 2009 there was further contact and apparent symptoms, resulting in a Community Treatment Order application, which was rejected in November. There was continuing contact in the meantime, including a further home visit with police escort. On 11 November there was entry to his home with a locksmith. He claimed to be taking medication but was found to be suspicious and perplexed. The view then taken by police was that no reasonable grounds existed to exercise powers under s 22 of the Mental Health Act 2007. (This section empowers police officers to apprehend a person and take them to a declared mental health facility, if the officer believes on reasonable grounds that the person is committing or has recently committed an offence, or has recently attempted to kill himself or herself, or that it is probable that the person will attempt to kill himself or herself or any other person, or attempt to cause serious physical harm to himself or herself or any other person, and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act).

60 The team made an application under s 23 of the Act which was granted. (This section empowers a Magistrate or authorised officer to authorise a medical practitioner or accredited person to visit and to personally examine or personally observe a person to ascertain whether a mental health certificate should be issued for the person). The accused then claimed to be taking medication every 3 to 4 days, but continued manifesting thoughts that he was being followed by ASIO. He was found not to be detainable and agreed to a follow up with a psychiatrist. He had nightly house visits for 6 days, when acute symptoms of mental illness were not noted. Medication was provided, which he claimed to be taking, although he continued to answer the door, whispering, but reassuring the treating team that he was fine. On 19 November, the accused phoned the team to advise that he felt persecuted in having to be there for medication, because it interfered with his life. He contacted the Mental Health Advocacy Service and was advised that as a voluntary patient he need not accept home visits. The accused did not attend the psychiatrists' appointment and was not seen by the team after 18 November, when he was thought to have reduced his medication and to have a deteriorating mental state, but there was a reluctance to pursue him further without police assistance, due to the risk of aggression that an unwanted visit might cause.

61 On 11 December 2009 , a registrar conducted a file review, which noted amongst other things, schizophrenia complicated by substance abuse, gambling addiction and erratic compliance; limited insight; AWOL and difficulties with follow up, with a significant history of aggression; strong indications of a high risk of relapse and a deterioration in mental state, if he remained non-complaint with treatment and thus a significant risk of aggression to himself and others. A further application for a community treatment order was recommended. A hearing scheduled for 7 December had not proceeded and was rescheduled for 20 January. An application for a community treatment order in December 2009 was noted, which referred, amongst other things to advice from the Mental Health Advocacy Service that the accused was a voluntary client who did not need to accept home visits.

62 On 14 January 2010, the accused was thought to have had an acute relapse of chronic schizophrenia, with intense affect and florid delusions. Medication had been commenced. On 16 January, he was denying persecutory symptoms and his chronic schizophrenia was thought to be resolving. On 21 January he was thought to be acutely psychotic. By 4 February some resolution was noted as beginning.

63 In April 2010, Dr Taylor took the view, on assessment, that the accused had not formed the intention to kill or seriously injure Mr Williams. His motivation was to cease what he perceived were investigations by agents, while suffering from paranoid schizophrenia.

64 Dr Allnut concluded as to Mr Sleiman’s mental state:

"At the material time that the alleged offence occurred the accused was manifesting symptoms of psychosis characterised by auditory hallucinations, delusions and ideas of reference so that he would be regarded as suffering "a disease of the mind".

Psychosis is a mental condition that impacts on a person's capacity to make rational decisions with regard to their environment and to be aware of that lack of capacity (lack of insight); thus psychosis is a condition that causes a "defect of reason".

I do not believe that his disease of the mind caused a defect of reason of a nature and severity that it impacted on his capacity to know the nature and quality of his actions, that is that I believe he maintained capacity to understand that he was utilising a knife to stab someone and that could potentially harm somebody.

In my view, the evidence suggests that at the material time of the alleged offence the accused felt morally justified and as a consequence of his perception of the deceased as a Mossad member would have had difficulty in reasoning about the wrongfulness of his actions at the material time that the alleged offence occurred and for this reason would have available to him a defence of mental illness for the following reasons:

For a number of years he had been living in a delusional world believing him to be persecuted by a variety of intelligence agencies and he was having auditory experiences that were compounding these beliefs as well as experiencing referential ideas;

He had a tendency to interpret the interactions of others from the perspective of his delusions;

In the time leading up to the alleged offence he was preoccupied by the idea that he was being followed and monitored by a variety of intelligence agencies and when the deceased visited his home and commented that he had lived in Israel, the accused concluded that he must be Mossad agent planted as part of the conspiracy against him, a game and was acting in a deceitful manner towards him in order to conspire to have him act as a suicide bomber with the intent of blaming Arabic people for what was in fact an Israeli plot;

On the day of the alleged offence he described believing that the deceased was a Mossad agent, that he also that(sic) there were other agents outside of his apartment and that his intention was to force whoever had been conspiring against him to make themselves known

When the deceased slapped him he likely experienced this as a combination of an insult as well as an example of further harassment (I am unclear how the knife came to be under the couch; whether it was placed there by the accused purposefully prior to the meeting with the deceased or whether it happened to be there; that the knife happened to be there would be reasonable given the persecutory world that the accused was living in)

Feeling his life to be under threat; it would be reasonable to be of the view that living such a life and believing oneself to be under such close scrutiny by malevolent forces that a person holding that belief under the circumstances that the accused found himself might act in an impulsive and aggressive manner, for example stabbing somebody, feeling justified in one's action.

Failing a defence of mental illness, he would be eligible for substantial impairment because he would have been substantially impaired in his capacity to know right from wrong as well as to understand events. "


Was the defence advanced established?

65 That question must be answered having regard to the evidence as to the accused’s outward conduct, as well as the medical opinions which have been received.

66 I have outlined in some detail the opinions of the psychiatrists who examined the accused and who considered his considerable medical and other history. There is no question that the accused has a history of significant mental illness. I must determine whether this evidence leads to the conclusion that as a consequence of his undoubted mental illness, the accused was unable to understand that what he was doing at the time he caused Mr Williams' death was wrong, so that the defence of mental illness is available to him, as is common ground between the parties.

67 The two psychiatrists are essentially of the same opinion. They do not suggest that the accused did not understand that he was stabbing Mr Williams. What the accused told the police also revealed an appreciation that what he had done had caused Mr Williams’ death. It was common ground that was what he intended to do. The accused had a knife to hand in the lounge room where he was speaking to Mr Williams and after first stabbing Mr Williams, he pursued him out onto the balcony, where he continued stabbing Mr Williams, to the point of death, despite his attempts to fend the accused off with a chair.

68 Dr Allnut, who had also assessed the accused in 2007, did not take the view that the accused’s mental condition caused a defect of such a nature and severity, that it impacted on his capacity to know the nature and quality of his actions. He believes that the accused ‘maintained capacity to understand that he was utilising a knife to stab someone and that could potentially harm somebody.’ As the result of his delusional perceptions, however, the accused felt ‘morally justified’. Dr Allnut concluded that the accused’s delusional perceptions resulted in him having ‘difficulty’ in reasoning about the wrongfulness of his actions with the result that he has a defence of mental illness.

69 Dr Nielssen who saw the accused earlier in 2010 than Dr Allnut, has a similar view. His view is that there was an acute relapse of the accused's illness, brought about by stopping regular treatment with antipsychotic medication resulted in delusional beliefs regarding Mr Williams which affected the accused’s ability to recognise that his action in killing Mr Williams was wrong, because he believed that Mr Williams was conspiring to make him a suicide bomber. In his acutely psychotic state he was unable to reason with any sense or composure about the alternative causes of action available to him for example seeking treatment. His mental illness also affected his capacity to control his actions.

70 The onus falling on the accused was that discussed in The King v Porter at 184:

“On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.”

71 It is settled that the unanimous opinions of the expert witnesses in a case such as this ought not to be rejected, unless there is evidence before me which would cast doubt on those opinions (see for example R v Huy Pham [2007] NSWSC 1313 at [42] per James J; R v Coles [2008] NSWSC 682 at [9] per Michael Grove J). I have given the expert evidence careful thought, because it seems to me that the history to which Dr Allnut particularly referred so extensively in his report, raised two obvious concerns.

72 While they are related, the first, the apparent failure of the systems under which the accused was being dealt with in January 2010, which ought to have resulted in his deteriorating mental state in late 2009 being addressed, is not a matter which goes to the question of whether the accused has made out his defence.

73 The second, however, is directly relevant to that defence. The accused revealed to both Dr Allnut and Dr Nielssen, a capacity to manipulate circumstances in which he found himself, by being untruthful. Thereby the accused at times successfully misled those dealing with him as to the true nature of his insight, or lack of insight, into his delusional state of mind; as to his actual experience of the persecutory delusions by which his mental illness manifested itself; and as to his non-compliance with medication and treatment for his chronic and persistent mental illness. In the past this has enabled the accused to obtain release from hospital and to resist efforts to ensure his re-admission for treatment, at times when his mental state patently required that he receive such treatment, if he was not to put the safety of others at risk.

74 In the light of this evidence I have considered the possibility that the accused was also not being truthful in what he told Dr Allnut and Dr Nielssen about his state at the time of Mr Williams’ death. At that time the accused was engaging in ongoing and deliberate resistance to treatment which he patently required, and which was being actively pursued by the Mental Health Service. I have considered whether, if he was also not being truthful in the accounts which he later gave to Dr Allnut and Dr Nielssen, as to his state at the time of Mr Williams’ death, this would suggest that, contrary to the views to which they came, that at that time the accused was in fact capable of understanding the wrongfulness of what he was doing.

75 After careful consideration of the evidence, I have concluded that the possibility that the accused was not truthful in what he told Dr Allnut and Dr Nielssen does not provide a basis upon which it might be concluded that the accused has not made out the defence of mental illness which he has advanced.

76 I have concluded that such untruthfulness, if it occurred, does not reveal an appreciation of the wrongness of the acts which caused Mr Williams’ death, but rather itself reveals the nature and extent of the accused's delusional state and his ongoing lack of appreciation of the nature of his mental illness and his need for treatment. This, it seems on the history, is itself an ongoing feature of the paranoid and delusional state which is caused by the accused’s mental illness. The history certainly suggests that for those treating the accused’s mental illness, care must be taken to ensure that proper attention is paid to the accused’s past propensity for being untruthful, when making assessments as to his actual mental state, any remission of his illness and his adherence to treatment and medication. I am satisfied that it is not, however, a basis for concluding that despite the effects of his mental illness, the accused had an appreciation of the wrongness of the acts which caused Mr Williams' death.

77 The evidence established the serious and ongoing nature of the accused’s mental illness and the delusional world which he has repeatedly come to inhabit, whenever medication falls away. This, it seems to me, must lead to the view that the opinions of Dr Allnut and Dr Nielssen, that due to his mental illness, the accused could not appreciate the wrongness of what he was doing to Mr Williams on 11 January 2010, must be accepted. The accused’s seriously delusional state when he caused Mr Williams' death had for some time been recognised by those dealing with the accused even before he caused Mr Williams’ death. The point had earlier been reached where police protection was thought to be necessary for those who were visiting the accused’s home, in order to treat him. Steps were then being actively pursued to ensure that the accused again became the subject of a further Community Treatment order and involuntary treatment. What the accused told the police on 11 January 2010 after his arrest, also revealed the existence and nature of his then delusional state. These contemporary events supported the conclusions reached by Dr Allnut and Dr Nielssen as to the nature and seriousness of the accused's then deluded state and the depths of his illness, at the time that he caused Mr Williams' death.

78 It is entirely regrettable that the steps then being pursued were not effective in ensuring the earlier resumption of the accused’s treatment. The evidence of his response to treatment, when received, suggests that had treatment been received earlier, Mr Williams' life may have been saved. Even so, I am satisfied that the conclusion that the defence has been made out must be accepted, in the face of all of the evidence to which I have referred. I find that the evidence establishes that on 11 January 2010, the accused was incapable of appreciating the wrongness of the acts which caused Mr Williams’ death, because of his mental illness.

The consequences

79 Section 37 of the Mental Health (Forensic Provisions) Act requires that consideration be given to the legal and practical consequences of a finding of mental illness, including the existence and composition of the Mental Health Review Tribunal constituted under the Mental Health Act and its functions with respect to forensic patients.

80 The effect of an order made under s 38 is that provided for in s 39 of the Mental Health (Forensic Provisions) Act, which provides:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.

81 In this case the accused sought no order for his release. On the accused’s history, I am well satisfied that such an order would not be appropriate, given what appears to be his serious history of aggression before Mr Williams’ murder; his approach to adhering to medical treatment and prescribed medication; and his repeated decline into a delusional state, whenever medication ceases.

82 The role and responsibilities of the Mental Health Review Tribunal were described by Hall J in R v Coleman [2010] NSWSC 177, a description which I respectfully adopt. His Honour observed:

"70 The statute which governs cases like this, namely, s.39(1) of the Mental Health (Forensic Provisions) Act , requires me to consider making an order that the accused be detained in such place and in such manner as the Court thinks fit until released by due process of law. In practice, this means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal.

71 The Mental Health Review Tribunal consists of a president and his/her deputy, who must be a lawyer. It also consists of two other persons, one of whom must be a psychiatrist. The third member is a person who has suitable qualifications or experience for the task.

72 The Tribunal is required to review the accused’s case as soon as practicable after an order is made for his detention in strict custody. The Tribunal may make orders as to his continued detention, care or treatment, or as to this release.

73 The Tribunal cannot make an order for the release of the accused unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to the possible release of the accused.

74 Where an order for release is not made, the Tribunal orders result in continued detention, care and treatment in a place and manner specified by the Tribunal.

75 After the initial review, the Tribunal must, at least once every six months, again review the case and make orders as to the accused’s continued detention, care or treatment in a hospital, prison or other place or as to his release.

76 If release is ordered, then it may be on conditions or it may be unconditional. If any condition is breached, or where the mental condition of the accused has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for his apprehension, care and detention.

77 The conditions which could be prescribed include matters such as living in a particular place, taking particular medication, appointments with health care professionals, enrolment in educational and therapeutic programmes, to ensure that the accused is properly cared for. Other than pursuant to any such release, the accused would remain, as I have said previously, in strict custody within one of the psychiatric institutions caring for forensic patients.

78 Security conditions (as necessary) are in place while the accused is detained in a hospital, prison or other place or if he is allowed to be temporarily absent from the place of detention.

79 The accused may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. However, as I have previously explained, the accused will only ever be released when the Mental Health Review Tribunal is satisfied on the evidence available to it that his safety and the safety of any member of the public will not thereby be seriously endangered."

Conclusion

83 In this case, for the reasons I have explained, I am satisfied on the evidence, on the balance of probabilities, that the accused is not guilty of the offence with which he has been charged, on the ground of mental illness. I find that at the time that the accused committed the acts which caused the death of Mr Williams, that he was mentally ill so as not to be responsible in law for his acts. I am accordingly required to return a special verdict under s 38 of the Mental Health (Forensic Provisions) Act.

Orders

84 Omran Sleiman, upon the charge that on 11 January 2010 at Belmore in the State of New South Wales you did murder David Phillip Williams, pursuant to the provisions of s 22(1)(b) of the Mental Health (Forensic Provisions) Act 1990, I find that you are not guilty by reason of mental illness.

85 I order that Omran Sleiman be detained, pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law.

86 The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by this Court and to provide the Tribunal with copies of the exhibits in these proceedings.

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25/10/2010 - typographical error - s 22(1)(a) should be s 22(1)(b) - Paragraph(s) [84]