R v Thompson (No 1) - [2022] NSWSC 1044

Supreme Court

New South Wales

Medium Neutral Citation: R v Thompson (No 1) [2022] NSWSC 1044
Hearing dates: 25 to 28 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Jurisdiction: Common Law - Criminal
Before: Walton J
Decision:
Act proven but not criminally responsible

Catchwords:
CRIME – murder – elements of the offence of murder – defence of mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 – Judge alone trial – two limbs of the defence of mental health impairment – meaning of “mental health impairment” under s 4 – whether the act was wrong – s 29 directions – Criminal Procedure Act1986 (NSW) – s 133 directions – expert evidence – special verdict – act proven but accused not criminally responsible

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 132, 133
Evidence Act 1995 (NSW), s 131
Mental Health and Cognitive Impairment Forensic
Provisions Act 2020 (NSW), ss 4, 28, 29, 30, 31

Cases Cited:
AK v Western Australia (2018) 232 CLR 438; [2008] HCA 8
Carter v R [2019] NSWCCA 11
Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
Fleming v The Queen (1988) 197 CLR 250
Hawkins v The Queen (1994) 174 CLR 500
Lucas v The Queen (1970) 120 CLR 171
R v Hall (1988) 36 A Crim R 368
R v Jenkins (1963) 64 SR (NSW) 20
R v Klamo (2008) 18 VR 644; [2008] VSCA 75
R v Minnani (2005) 63 NSWLR 490; [2005] NSWCCA 226
R v Siemek (No. 1) [2021] NSWSC 1292
R v Tonga [2021] NSWSC 1064
Spiteri-Ahern v R [2022] NSWCCA 56
Tumanako v R (1992) 64 A Crim R 149

Category: Principal judgment
Parties: Regina (Crown)
Harley Thompson (Accused)
Representation:
Counsel:
K Ratcliffe (Crown Prosecutor)
S Fraser (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2020/00224600

Judgment

On 26 July 2022, the accused, Harley Thompson, was arraigned before me on an indictment dated 10 February 2022 which charged that, on 31 July 2020, at Bomaderry in the State of New South Wales he did murder Cameron Johnston (“the deceased”) (“the alleged offence”). The accused pleaded not guilty on the grounds of mental health impairment.
On the evening of 31 July 2020, over a period of approximately one hour and a half, the accused attended the property of the deceased on Leonard Street in Bomaderry (“the premises”) on three occasions. On the first two occasions, he damaged property of the deceased whilst yelling abuse at the deceased, a man he did not know (“the first incident” and “the second incident”).
On the third occasion (“the third incident”), the accused returned to the deceased’s house and set fire to the deceased’s house. The deceased did not escape the house and died. An autopsy completed by forensic pathologist Dr Bernard I’Ons determined that the cause of death was carbon monoxide toxicity although it may be noted that the report also revealed that the deceased suffered burns to multiple areas of his body and soot was found within the pharynx, below the vertical cords and extending into the right and left bronchi.
Collectively, these incidents shall be referred to as “the incidents”.
The trial proceeded before a Judge alone because on 25 March 2022, the accused signed a written election to be trialled by Judge alone having received advice in relation to the election from Mr Scott Fraser of counsel who appeared for the accused at trial and Ms Rosslyn Mayne, solicitor, who instructed Mr Fraser. The Crown consented to a Judge alone trial so that the Court was required to proceed in that manner for the purposes of s 132(2) of the Criminal Procedure Act1986 (NSW) (“Criminal Procedure Act”).
It was common ground that the applicable legislation providing the defence of mental health impairment in this trial was the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (“the Act”). That position is soundly based. Even though the alleged offence occurred, and the accused was charged, prior to the enactment of the Act on 27 March 2021, the savings and transitional provisions of the Act provide that it applies to proceedings commenced after the commencement of the Act.
Schedule 2 of the Act contains transitional and other provisions. Clause 5 of Part 2 of Schedule 2 provides for the continuing application of the Mental Health (Forensic Provisions) Act 1990 (NSW) to “proceedings for offences commenced before the commencement of Part 3 of this Act” until such time as “a determination is made as to whether a special verdict should be entered or the defence is no longer being raised”.
In R v Tonga [2021] NSWSC 1064 (“Tonga”), Wilson J held at [10] that the expression “the commencement of the proceedings” should be construed narrowly such that the expression meant the present trial proceedings before the Court which commenced with the presentation of the indictment by the Crown. A similar approach was adopted by Johnson J in R v Siemek (No. 1) [2021] NSWSC 1292 at [9] (“Siemek”). With respect, I concur with the interpretation of Wilson J and Johnson J on the savings and transitional provisions which results in the conclusion that the Act applies to this trial, given that, at the earliest, the indictment was presented at an arraignment on 4 March 2022.

THE APPLICABLE LEGAL PRINCIPLES

In a criminal trial by judge alone, the trial is to be conducted in accordance with the requirements of s 133 of the Criminal Procedure Act which is in the following terms:

133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

By s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of an accused person and those verdicts have the same effect as a jury verdict.
The requirements of ss 133(2) and (3) are legal imperatives: Fleming v The Queen (1988) 197 CLR 250; [1998] HCA 68 (“Fleming”) at [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) (which considered the identical predecessor of s 133(2): see Spiteri-Ahern v R [2022] NSWCCA 56 (“Spiteri”) at [38] (Meagher JA, R A Hulme and Davies JJ)). I must set out the relevant principles of law and findings of fact upon which those verdicts are based: s 133(2). I must take into account any warning that the jury would receive: s 133(3).
In Tonga, Wilson J referred to the interaction between ss 132 and 133 of the Criminal Procedure Act and s 29 and 31 of the Act. Her Honour identified the task of the Court at a Judge alone trial where s 31 of the Act applied and stated at [98]–[100] as follows:

98. The tension I perceive between the two provisions is that, a trial by judge order having been made, the Court is obliged to comply with s 133 of the Criminal Procedure Act, and formally record all of the principles of law applied, and each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled. Section 31 of the MHCIFP Act permits the trial judge to enter a special verdict at any stage in the proceedings, as long as those things in ss (a), (b) and (c) are satisfied. That would suggest that, if the Court takes that course, and enters a special verdict pursuant to s 31, it would not be necessary to formally record findings of fact, and all relevant principles of law and warnings that the tribunal of fact would apply. The consequences of that would include, for example, the obviation of the need to explain those matters referred to in s 29 of the MHCIFP Act.
99. Having considered the interplay between the two provisions, in my opinion it is open to me at this stage to proceed pursuant to s 31 of the MHCIFP Act given that, although the Court is exercising the powers and functions of the tribunal of fact, the Court retains the powers and functions of the tribunal of law, one of which is the function provided by s 31.
100. Accordingly, although I am well aware of those matters in s 29 of the MHCIFP Act, and of the legal principles that apply to the determination of a matter such as this, I do not propose to consider them further for present purposes.

Johnson J agreed with this passage from Tonga in Siemek at [18]. However, the approach identified by their Honours in those judgments does not apply in the present case where the Crown has indicated that s 31 of the Act is not engaged because there is no agreement between the accused and the Crown that the proposed evidence in the proceedings establishes a defence of mental health impairment.
There must be more than a literal compliance with s 133(2) and the process of reasoning leading to the verdict must be clear. Thus, as was stated in Spiteri at [39], the requirements of s 133(2) are not satisfied merely by bare statement of the principles of the law that the judge has applied and the findings of fact that the judge has made. Rather, they must expose the reasoning process linking them and justifying the latter, and ultimately, the verdict that is reached. The Court must engage with the arguments made by counsel: AK v Western Australia (2018) 232 CLR 438; [2018] HCA 8.
This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged.
In order to prove the charge of murder, the Crown must prove first that there was a deliberate act of the accused that caused the death of the deceased, and secondly that the act was carried out with an intention either to kill or to cause really serious bodily harm or was done with reckless indifference to life. The Crown must also prove that the act of the accused was not done in self-defence. There is no evidence in the present case to suggest that self-defence is an issue.
The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. Subject to the discussion later in this judgment, the obligation on the Crown is only to prove the elements of the charge beyond reasonable doubt.
The one issue in this trial is whether the accused is not criminally responsible for the offence by reason of a mental health impairment.
If I find the first limb or element of the offence of murder proven to the requisite criminal standard, it is for the accused to prove on the balance of probabilities that he is not criminally responsible for the offence charged by reason of amental health impairment defence established by s 28 of the Act.
Section 28 of the Act provides for the defence of mental health impairment as follows:

28 Defence of mental health impairment or cognitive impairment
(1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.
(4) In this Part, act includes—
(a) an omission, and
(b) a series of acts or omissions.

Section 28(1) provides that there are two limbs to the defence (see Siemek at [85] and [86]), as follows:

Did the accused, at the time of carrying out the act, have a mental health impairment?

Did that impairment have the effect that he either:

Did not know the nature and quality of the act or

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

As to the second limb, the accused does not rely upon the effect of the impairment referred to in (2)(a) above.
What will constitute a mental health impairment is defined by s 4 of the Act. Section 4 provides:

4 Mental health impairment
(1) For the purposes of this Act, a person has a mental health impairment if—
(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2) 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.

(3) A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.

Whether the defence in s 28 of the Act has been established is to be determined on the balance of probabilities: s 28(2) of the Act. This is the standard of proof applicable to civil cases and requires no more than proof that the facts necessary to make out the defence are more likely than not. This standard is much less stringent than the criminal standard of proof beyond reasonable doubt.
Until such time as the defence is established, the accused is presumed not to have a mental health impairment to that effect: s 28(3) of the Act.
Murder is an offence of specific intent. Ordinarily, to prove such an offence, it would be necessary for the prosecution to prove both the physical element and the mental element of intent for the offence to the requisite criminal standard.
There was no issue taken by the defence at trial as to the first element of the offence of murder, namely, that the Crown had proved beyond reasonable doubt that the accused committed the Act that caused the death of the deceased. It was accepted that the accused lit the fire which amounted to a deliberate and voluntary action of the accused in the sense that they involved a willing movement of the deceased’s hands and muscles. In my view, the Crown established beyond reasonable doubt the first element of the offence of murder. As I will discuss below, the accused made admissions as to fire at the deceased’s home in interviews with psychiatrists, in a letter to his mother and ex-partner and in a phone call to a friend, Ms Samantha Monk. Again, as discussed below, the autopsy report for the deceased makes clear the deceased died as a direct result of the fires lit by the accused.
Having reached that stage, I am required to proceed directly to consider whether the accused is not criminally responsible for his actions and their consequences by deciding whether he has established the mental health impairment defence on the balance of probabilities. The Court will only turn to consider the second element of murder in the event that the accused has not established a mental impairment defence: Hawkins v The Queen (1994) 174 CLR 500; [1994] HCA 28 at 512–517 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); R v Minnani (2005) 63 NSWLR 490; [2005] NSWCCA 226 at [32]–[33] (Hunt AJA with whom Spiegelman CJ and Howie J agreed).
Whilst there was a discussion about a partial defence of substantial impairment addressed in the reports of the experts, in closing submissions, counsel for the accused stated that the accused no longer relied upon that partial defence.

Impartiality

In considering this verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of this case. My task must be undertaken free of prejudice or sympathy in any of its forms.

Right to Silence

The accused has not given any evidence at this trial. There are a number of important directions of law which I must give myself in relation to that fact. Although an accused person is entitled to give evidence in a criminal trial, there is no obligation upon him to do so.
It follows that the accused is entitled to say nothing. I direct myself, as a matter of law, that the accused’s decision not to give evidence cannot be used against him in any way, at all, during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt.
I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill in gaps that may be thought to exist in the evidence tendered by the Crown. It cannot be used in anyway of strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence, if the accused had given evidence or what might have been said by any other person, if that person had been called by the accused, as a witness in the trial.
However, where there is evidence that the defendant has made statements about the subject matter of the charges out of court, whether exculpatory or inculpatory, they may be taken into account as part of the evidence in the case. Where there is evidence of an exculpatory statement a number of “rules” apply: first, the Crown will not have proved its case beyond reasonable doubt if I accept the statement as true and reliable; second, the same applies if, after an evaluation of all of the evidence, I am left in the position where I consider the exculpatory statement might possibly be true; and third, the Crown will not have proved its case beyond reasonable doubt unless it demonstrates that the exculpatory statement could not possibly be true. Even then no inference may be drawn against the accused from the rejection of an exculpatory statement; the Crown will only have proved its case if I am satisfied beyond reasonable doubt by evidence, I actually accept from that was led in the trial these considerations are aspects of the burden and standard of proof in criminal proceedings.
However, to the extent to which the accused may have made inculpatory statements about the charge, I am entitled to take them into account as admissions against interest and accordingly as evidence favourable to the Crown.

Inferences

I am entitled to draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. In the context of a criminal trial, where proof of the offences is required beyond reasonable doubt, I direct myself that I should not draw any inference adverse to the accused from the direct evidence unless I am satisfied that it is the only rational inference in the circumstances.

Expert Evidence

There is expert evidence of forensic psychiatrists Dr Andrew Ellis and Dr Kerri Eagle. Dr Ellis produced a report (“the Dr Ellis Report”) dated 23 May 2021. Dr Eagle produced a report on 20 August 2021 (“the Dr Eagle report”) at which time she was in receipt of the Dr Ellis report. She wrote a supplementary report on 25 February 2022 (“the Supplementary Eagle report”). Both experts gave concurrent oral evidence. The experts addressed the defence of mental health impairment under s 28 of the Act in their respective assessments of the accused.

Prior to the enactment of the Act, it had been said that, although there is no legal requirement that medical evidence be adduced to prove the defence of mental illness (Lucas v The Queen (1970) 120 CLR 171 at 174 (Barwick CJ, Owen and Walsh JJ)), the need to establish the elements of the defence made the calling of medical evidence a practical necessity: Tumanako v R (1992) 64 A Crim R 149 at 160 (Badgery-Parker J with whom Gleeson CJ and Clarke JA agreed) (“Tumanako”).
An elaborate definition of “mental health impairment” now appears in s 4 of the Act (see [23] above) which requires the Court to consider whether, amongst other things, “a temporary or ongoing disturbance of thought, mood, volition, perception or memory … would be regarded as significant for clinical diagnostic purposes”: ss 4(1)(a) and (b). The introduction of an assessment of the relevant “disturbance” as being “significant for clinical diagnostic purposes” means that expert medical evidence is now more than a practical necessity in cases where the s 28 defence is raised.
It remains the case that juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370 (Roden J); R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at 655 [44] (Maxwell P with whom Vincent JA agreed) (“Klamo”). A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: R v Jenkins (1963) 64 SR (NSW) 20 at 31 (Walsh J); Tumanako at 161-163 (Badgery-Parker J with whom Gleeson CJ and Clarke JA agreed); R v Klamo at [44]-[50] (Maxwell P with whom Vincent JA agreed); Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 at [337] (R A Hulme J and Bellew J). I do not have to act upon the expert opinion where the facts upon which the opinions are based do not accord with the facts as I find them to be.
The accused in this trial referred to the statement of Button J in Carter v R [2019] NSWCCA 11 at [319] (“Carter”) concerning the evidentiary value of expert psychiatric evidence:

[A]lthough it is true that neither the trial judge nor this Court is compelled to accept the joint opinion of two distinguished forensic psychiatrists when there is evidence that may lead to a different view, I think that their joint opinion, although not determinative, is highly significant. Each of them, I believe, possesses far more experience in the assessment of the consequences of mental illness in general and schizophrenia in particular than even a judge who has spent many decades working in different roles within the criminal justice system.

Section 30 of the Act provides:

30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment
A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established.

Before reaching a conclusion on the issue of criminal responsibility, I am obliged to consider the matters in s 29 of the Act which include the legal and practical consequences of such a verdict.
That obligation is not impeded by s 6 of the Act. Section 6 provides:

6 References to juries and matters determined by a judge alone
In this Act (other than sections 29, 41, 56 and 58), a reference to a matter or question that is or is to be determined by a jury, or to another function of a jury, includes a reference to a judge in proceedings determined by a judge alone.

I agree with the submission of the Crown, that the explanation provided by s 29 of the Act is not “a matter or question that is or is to be determined by a jury” or “another function of a jury” and that accordingly, the exception of s 29 from the operation of s 6 does not obviate the requirement for the Court to give itself explanations as required by ss 29(a)–(d) or the direction required in s 29(e).
I will discuss each of the components of s 29 of the Act in turn. Section 29(a) requires me to explain the findings which may be made on the trial. These are as follows:

“Act proven but not criminally responsible”: if I am satisfied that the defence of mental health impairment has been established on the balance of probabilities, the burden of proof being on the accused.

“Guilty of murder”: if the accused has failed to establish the defence of mental health impairment on the balance of probabilities and I am satisfied beyond reasonable doubt that the accused did the act with intent to do grievous bodily harm or to kill or with reckless indifference to life.

Not guilty of murder but guilty of manslaughter by unlawful and dangerous act: If the accused has failed to establish the defence of mental health impairment and if I am not satisfied that the accused did the act with the relevant intent for the crime of murder, but I am satisfied it was unlawful and dangerous.

“Not guilty”: the Crown has not made out the elements of the offence of murder.

By s 29(b) of the Act, I must explain the legal and practical consequences of those findings. I take that step below:

For a verdict of “Act proven but not criminally responsible”:

The Court may order that the accused be released, unconditionally or on conditions that the Court believes are necessarily for his welfare and that of the community, but the Court may not make such an order unless it is satisfied, on the balance of probabilities, that the safety of the accused or any member of the public will not be seriously endangered by his release.

On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in the place and manner that the Court thinks fit until he is released by what is called “due process of law”. 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 (“the Tribunal”).

Unless the accused is released unconditionally, I must refer the accused to the Tribunal

For a verdict of “Guilty of murder” or “Not guilty of murder but guilty of manslaughter”: The Court will sentence the accused for the offence on which he is found guilty.

“Not guilty”: The accused walks free from the Court and the criminal process comes to an end.

By s 29(c) of the Act, I am required to explain the composition of the Tribunal and its relevant functions with respect to forensic patients.
The Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office.
The functions of the Tribunal are as follows:

To review a case of a forensic patient as soon as practicable after the court enters a special verdict of act proven but not criminally responsible. The Tribunal may make orders as to that person’s detention, care or treatment or their release.

The Tribunal cannot make an order for the release of a forensic patient 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 Tribunal must notify the Minister for Health and the Attorney General in advance of the release of a forensic patient and they may make submissions to the Tribunal in relation to the possible release of that person.

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

After the review referred to in subparagraph 1, the Tribunal must, at least once every six months, again review the case and make orders as to the forensic patient’s continued detention, care or treatment in a mental health facility, correctional centre, detention centre or other place or as to his release.

If release is ordered, then it may be on conditions or unconditionally. If any condition is breached, or where the mental condition of the person has deteriorated so that he may at risk of causing serious harm to himself or to any member of the public because of his condition, a further order may be made by the Tribunal for the person’s apprehension, care and detention.

Security conditions (as necessary) are in place while a forensic patient is detained in a mental health facility, correctional centre, detention centre or other place or if the person is allowed to be temporarily absent from the place of detention.

A person found “act proven but not criminally responsible” may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time.

Pursuant to s 29(d) of the Act, and without limiting the explanation provided under s 29(b), I must explain that a defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of a mental health impairment or cognitive impairment, or both, may be ordered to be released by the Tribunal only if the Tribunal is satisfied, on the evidence available to it, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release.
By s 29(e) of the Act, I direct myself that in determining whether I am satisfied that the defence of mental health impairment has been established, I must not be influenced by the consequences of a special verdict of act proven but not criminally responsible.

EVIDENCE AT THE TRIAL

In this matter, there are two classes of evidence. First, there is non-expert evidence. This is contained within a trial tender bundle (Exhibit 1). The tender bundle includes an agreed statement of facts under s 191 of the Evidence Act 1995 (NSW) (although due to logistical difficulties in communicating with the accused in custody the ultimate form of the agreed statement of facts is contained within Exhibit 3); crime scene statements and charts by Crime Scene Officer Austin; maps of Leonard Street Bomaderry and more generally the suburb of Bomaderry, photographs taken by Senior Constables Megan Rigby (“SC Rigby”) and the record of interview of the accused in an ERISP taken on 1 August 2020.
Additionally, accompanying the Supplementary Eagle Report is correspondence from the accused to his mother, Ms Joanne Thompson, and five letters to his ex-partner, Ms Telia Cruiskshank (“the letters”) (as there are multiple individuals with the same surname, and with no disrespect, I will refer to Ms Cruickshank by her first name, “Telia”). The letters were intercepted by corrective services on 2 December 2021.
The agreed facts incorporated not only a general narrative as to the factual background but a narrative as to the autopsy findings, the findings of a fire investigation, the findings of the crime scene investigation as well as a summary of accounts given by various witnesses: Ms Monk, Mr Gavin Hayman, Mr Robert Connelly, Ms Natalie Sutton, Mr Justin Mitchell, Ms Kylie Toomey, Ms Toni Vanderberg, Mr Jace Vanderberg, Ms Barbara Cruickshank, Mr Timothy Foster, Mr Joseph Tighe and Ms Codi Cruickshank.
The agreed statement of facts also incorporated references to the letters. The letters and the Supplementary Eagle report were relevantly connected, because Dr Eagle had been asked to consider further material, and in particular, these letters after the Dr Eagle report and “in light of that material state whether any of the opinions I expressed in my previous report [had] changed.” In substance, no changes to the primary findings of Dr Eagle were made in the Supplementary Eagle report, after taking into account the letters.
The second class of evidence was the expert evidence to which reference was earlier made during the course of giving directions with respect to expert evidence.

FINDINGS OF FACT

Whether the mental health impairment defence has been established is a matter of fact determined by the Court. The Court is required to consider the whole of the evidence and form its own view as to whether the evidence establishes the defence.
The following findings are drawn substantially from the narrative of the agreed facts although it will be necessary for the Court to draw inferences from the direct facts.

Background Circumstances of the Accused and Deceased

On 31 July 2020, Cameron Johnston was living at the premises. He lived there with his 18-year-old son, Mr Warren Stewart, and they had been living there since 2015.
On 31 July 2020, the accused was living with his de facto partner, Telia, with her family at on Leonard Street, Bomaderry (“the Cruickshank house”).
Telia family was comprised of her mother, Ms Debbie Walker, her mother’s partner, Mr Foster, her brother Cody Cruickshank, her sister Skye Cruickshank, and her four children.
The accused had been in a relationship with Telia for about 3 years. The accused ended the relationship on 30 July 2020, suspecting Telia of being unfaithful to him.

Events Prior to the First Incident

At 4.40pm the accused attended the North Nowra Tavern (“the Tavern”) with friends Mr Tighe, Mr Allan Tighe and Ms Emily Davis. The accused was wearing a white hat and North Queensland Cowboys NRL jersey.
At the Tavern, the accused consumed two beers while communicating with friend “Jamie” via Facebook messenger. The accused messaged “Jamie” in response to an enquiry about what he was doing: “nippin bra all I want is a good fuck and then a made [sic] fight with some dog and then go on a holiday”.
The accused left the Tavern at 5.31pm and went back to Mr Tighe’s house at an address in Bomaderry. While there, the accused had an argument with Mr Tighe and the accused left and walked home to Leonard Street.

The First Incident

At 8.57pm, an anonymous female caller to 000 reported a male person wearing a white hat (the accused) was outside the premises calling out “paedophile” and smashing windows before walking away down Leonard Street in the direction of the Cruickshank House.
At this time, Mr Peter Neilsen heard a loud crashing on a Colorbond fence and someone (the accused) yelling out “Come out cunt”, which was repeated several times.
Ms Lillie Fuller and Mr Sam McCormack was next door to the premises (“Mr McCormack’s house”). Ms Fuller provided a statement to police in which she said that they were inside in Mr McCormack’s room (on the eastern side of the house) when they heard a male’s voice (the accused) start screaming and yelling from outside. He was yelling repetitively “Come outside you paedophile dog”. Ms Fuller heard him laugh a few times, which she described as “a crazy laugh like he was psycho and out to hurt someone”. She also heard loud banging noises like someone was banging on a door. She then heard him yell out again asking the person to come outside and then she heard the sound of glass smashing. She heard more glass smashing. Then the male continued to yell out “paedophile dog”. She told police the male would scream out, then stop and then start up yelling again.
Mr McCormack told police he heard the male (the accused) screaming “Come out here”, “come here”, “come out here you rapist cunt”, “fuck you” and “racist”. Mr McCormack told police he distinctively heard the male yell “I’m going to kill you”. Mr McCormack told police that he heard the sound of someone banging loudly on the front door of no 41, and that he could still hear the demands and threats to the occupants of the house.
Mr Matthew Brooks heard a male’s voice (the accused) at this time screaming and yelling. He heard the words “Fucking dog” and “come here, let’s go dog” repeated over and over. He also heard banging noises like someone was throwing rocks and it was hitting the side of a fibro house. He then started to hear glass smashing and concluded it was the house windows.
At 9:03pm the deceased contacted 000 requesting police assistance because a male wearing a white hat (the accused) was smashing his house windows and his car while saying “get outside cunt”. The deceased reported to 000: “He’s smashed all the windows nearly, he’s going off his head.” The deceased told the operator the male was sitting out the front of the house across from No. 30 when he drove past but said he didn’t know who the male was. The deceased asked the operator: “Can you get them (police) here quick, cause he’s scary”.
Police attended the deceased’s house at 9.20pm, observing damage to the walls and windows of the right-hand (eastern) side of the house. They also saw that all the windows and the windscreen of the deceased’s motor vehicle, a white Nissan sedan Registration XXXXX X parked in the driveway, were shattered, the rear nearside and rear offside taillights were smashed.
The deceased told police that a male who he did not know had come to the house and damaged the house and the car. The deceased said that he thought he had seen the male sitting outside Ms Toomey’s address earlier in the evening when the deceased went to the shops.
The deceased told police he had been receiving threats on his phone and he showed police a number of text messages he had received on his mobile phone from mobile service …577. The deceased told police there were people in the street who were alleging he was a paedophile.
Mobile service …577 was subscribed to Ms Haleigh Stevens who lived at an address in Bomaderry. Police spoke to Ms Stevens on 5 August 2020 and she confirmed that she had attended the deceased’s home two weeks earlier about approaching younger women and offering them pills in their mailboxes and said that she had posted several comments on Facebook about this.
The deceased’s son, Mr Stewart, played an audio recording he had made during the incident to police. Police noted that Mr Stewart appeared to be frightened and distressed.
The accused’s mobile phone handset was found by police on the ground near the deceased’s letterbox.

The Second Incident

Ms Fuller and Mr McCormack were in the loungeroom of Mr McCormack’s house playing on the PlayStation when Ms Fuller told police they again heard banging noises and the sound of glass smashing. She looked out the kitchen window on the western side of the house towards the front door of the deceased’s house. She told police she could clearly see a male (the accused) standing in front of the door: “It appeared like he was in a fighting stance and I seen him punching the door”.
Mr McCormack told police he heard the same male voice screaming again “you racist cunt”, “you’re a piece of shit”, “you are a paedophile cunt” and he heard the sound of glass smashing. In between smashing the windows, the male would go back to banging on the front door while yelling out similar things, including “I’m going to kill you”.
The deceased again contacted 000 at 9.46pm to report that the male had returned. He told the 000 operator that, “The bloke’s back smashing my car up again”. He said “He’s scary. He’s going to smash through the front door any second”. Sounds of thuds followed by glass breaking are audible in the background of the call.
The deceased indicated that the male was smashing multiple windows. At one point during the call when the operator was requesting further information, the deceased said “Can you just get the police here please. It’s just so scary”. When the operator asked if he could see the person now, the deceased said, “I’m not game to look”.
Police returned to the deceased’s house at about 9.55pm and the deceased reported more damage to his house caused by the male (the accused), including broken windows next to the front door and near the front left corner of the house. SC Rigby took more photographs of the damage, noting that there was now not a window at the front and side of the home that had not been smashed.

Police remained in the area for about ten minutes but departed when they didn’t see anything relevant.
The accused meanwhile had gone to his friend Mr Connelly’s house on Leonard Street (“Mr Connelly’s house”). Mr Connelly told police that the accused asked for a bandage for a cut on his knee and admitted to Mr Connelly he had smashed the deceased’s car windows. Mr Connelly said the accused asked him for petrol because he wanted to burn “the neighbour’s” car, whom the accused referred to as “The prick across the road”.
At about 10.00pm, the deceased telephoned Southern Cross Housing to report the broken windows of his house and request urgent assistance securing the house. He said the male had been there twice, as had police, and that he and his son were scared with just about every front window smashed and requiring boarding up. The deceased was informed that someone would attend to at least board the windows up overnight.

The Third Incident

The deceased again contacted 000 at 10:39pm. He requested police and fire brigade assistance as the male (accused) had returned and “chucked petrol through the window”. He described it as a “firebomb”. A smoke alarm can be heard in the background of the call. The deceased told the operator “the loungeroom’s on fire” and said, “can you please hurry up”. He said, “he can get in the front door”. He said he was “too scared to go near him, he’s mad”. The operator asked if he was safe and the deceased said he was “trying to hide because he can get in that front door any second” and he was in the bathroom and said, “the loungeroom’s on fire, you need to get the police here as soon as possible”. He said he would not leave the house because he believed the male (accused) would kill him. He then told the operator he was in the loungeroom trying to get buckets of water to put the fire out. “If the bloke gets in here he’ll kill us”. He then informed the operator his car was on fire. He reported that he had put the fire in the loungeroom out but he told the operator he could not breathe because it was smoked out.
The deceased is heard persistently coughing and he complained he could not breathe. The operator asked him to step outside into the backyard. The deceased’s son can be heard in the background imploring his father to come outside. The deceased told the operator “no, I can’t go outside, he'll kill us. he’s mad”. He then reported to the operator that “The whole house is on fire. He’s chucking bombs, he’s chucking them in the bedroom now”. Through clear respiratory distress, the deceased enquired of the operator “how far away are they?”. The operator continued to request the deceased to leave the house, but there was thereafter no further response other than coughing, and then the call ended. The call lasted for 10 minutes.
The neighbours Ms Fuller and Mr McCormack had heard banging noises again coming from the premises and then saw the deceased’s house on fire. Mr McCormack said he heard the deceased’s son, Mr Stewart, scream “Dad, dad, dad” and a short time later he heard the male (the accused) yell “Burn cunt, burn” and a short time later he heard the male laughing. Mr McCormack said the laugh almost sounded excited. Ms Fuller told police she heard the male (the accused) had the same “crazy laugh” as he said “burn” a few times.
The deceased’s son contacted 000 at 10:40pm asking for help, reporting that “he’s come back” and reported he was smashing windows. He said he was “really scared”. Mr Stewart had locked himself in the bathroom but upon smelling smoke he opened the door, crawled to the laundry from where he escaped via the side door into the backyard.
The first police arrived at the scene at 10:47pm. Upon arrival at the scene, police found the deceased’s house and vehicle engulfed in flames. The deceased’s son was standing outside with his dog.
Fire brigade personnel arrived at approximately 10:54pm and observed thick smoke issuing from the eastern, western and southern side of the deceased’s house and the car was well alight in the driveway.
The deceased’s body was located in the living room with extensive burns to his abdomen, chest, face and arms and there was a considerable amount of black soot under his nose and in and around his mouth. He was pulled from the house at 11:09pm, unconscious, pulseless and not breathing. Attempts were made to resuscitate him for about 15 minutes but he was monitored as asystole and resuscitation was ceased. At 11:17pm he was pronounced deceased.
Fire fighters noted there was a strong smell of petrol at the scene.
A circular piece of timber with silver tape around one end was located at the front of the property and was collected as an exhibit.
Ms Monk was at her home at 47 Leonard Street when she learnt of the fire. She went across the road to Mr Connelly’s house and the accused was there. Ms Monk told police the accused said to her: “I’ve just gotten out of the shower. Can you run me around the corner?” The accused handed something to Mr Connelly. The accused was shirtless, wearing shorts, shoes and carrying his cap.
The accused left Mr Connelly’s with Ms Monk and they went back to Ms Monk’s house (the accused is captured on CCTV arriving at 22:44pm). At 22:54pm the accused was captured on CCTV leaving Ms Monk’s house with Ms Monk and he was wearing a light-coloured long-sleeved shirt and long dark coloured pants. They drove in Ms Monk’s Commodore to Mr Tighe’s house at an address on Bunberra Street, arriving at 10:57pm. Ten minutes later, at 11.07pm, they were back at Ms Monk’s house.
At 1:07am (on 1 August 2020), Senior Constable Carter was captured on CCTV at Ms Monk’s front door conducting a canvas for information relating to the house fire. The door was answered by Ms Monk. At 2:05am, the accused was captured leaving Ms Monk’s house.
The accused was arrested at the Cruickshank’s home at 12:30pm on 1 August 2020. He was cautioned at the time of the arrest. As he was being led to the police car, he said “I don’t understand what’s happened I only smashed his windows”.

ERISP

The accused participated in an electronically recorded interview during which he told police the following:

Confirmed he resided at the Cruickshank house with his partner, Telia Cruikshank and mother-in-law, Debbie Walker, and Debbie’s son Eddie Cruickshank and Debbie’s partner Mr Foster, and Skye Cruickshank (A37-51) and her children.

He said, “we all seen it” (the incident the previous night).

When asked what he had done on 31 July 2020 the accused said he had been at his mate Joey Tighe’s house nearly all day then he came back got Aiya (Skye’s daughter) and went to the shops. They were walking on the side of the road and the deceased nearly hit them driving his car. When he came back that night the deceased drove into his driveway and said something. The accused yelled at the deceased about what’s his problem and the deceased went inside. The accused said he went to the deceased’s house and ripped the front lights off and then went home and got a hammer and smashed the windows and the window and lights of his car. Then he went over to the people’s house across the road and 2-3 hours later people were screaming the house was on fire. He denied he lit the fire. He went to his friend Sam’s house, stayed there the night and walked home. Today he went to the shop and his cousin said the police were looking for him, so he went home.

After the deceased’s vehicle nearly hit him, he went to his friend ‘Joe Boy’s’ house and they went to the Northern Tavern and played the pokies (A238-244) and he had a couple of beers (A256). He went back to Joe’s house and then he walked to Sam’s house. She wasn’t home so he went to walk down the street and that’s when he saw the deceased in his car pull into his driveway.

He said he didn’t know the deceased but he always drove past him slow and he got told he was a paedophile but he doesn’t have a clue who he is and he has never met him (A182-185).

He said the deceased was inside the house when he ripped off the lights (A354).

He said he saw the police attend the deceased’s premises when he ripped the lights the first time (A372).

He thought the neighbours “Tyson and Hailey” said he lit the fire (A507-509).

He admitted he wore his white ‘Nike’ hat all day yesterday (A560-561)

He admitted he carries a bumbag (A600) and he carries it with him everywhere (A613).

He said “I didn’t drink at all pretty much last night until I got with Sam” (A628).

He said police had found his phone at the deceased’s house (A652) and his phone number is xxxxxxx836 (A659) and he got that number one and a half weeks ago.

He said when he smashed the windows, he cut his finger (A676)

He had some ice yesterday during the day “maybe around 1.00, 2.00” (A694). He said that ice calmed him (A699).

His recollection is “usually good.” He has been “out stressing” and trying to get his life “back on track.” When “that bloke there… yelled out at me I just [retaliated] at him” (A709).

He said after he smashed the deceased’s house he heard the deceased was a paedophile and puts pills in Ms Sutton and Mr Connelly’s mailbox and had also done it to his friend Sam (A741-743).

Later he said he didn’t see the person who tried to run him over and this was the first time he had ever seen the deceased (A746-749).

He says he consumed “not even a point” (A790).

He said he was not affected by the ice (A795-796).

He denied he had ever messaged the deceased.

“Everyone’s always just been spiteful to me. Like, like, Telia and that, Like, I don’t have no one, I don’t have my mum and dad. I don’t talk to ‘Em, they’ve got an AVO against me…” (A894).

Drugs with nothing to do with him smashing the deceased’s windows (A805).

He denied he had handled petrol or any liquids the previous night (A969).

He didn’t think he yelled the word “paedophile” but when he is angry he calls every name under the sun (A1003). “He was doing the same to me.”

Prior to the incident commencing with the deceased he had an argument on the phone with Mr Tighe about his girlfriend Telia’s whereabouts but denied he was angry (A1060-1092).

He denied that he had touched petrol the previous day (A1102) and he had nothing to light a fire with (A1103).

He says he watched the fire engulf the deceased’s house for 5-10 minutes (A1136).

When he was watching the fire “everyone” was out the front and he heard people yelling his name (A1145).

He denied he had lit the fire (A1151).

Police asked the accused what a person inside a fire would do and the accused said “I dunno, run, I dunno” and police replied “that’s exactly what you wanted” and the accused responded “yeah but” (A1167-1170).

When asked how he ingests his ice the accused said he smokes it but when asked about a lighter he denied he had one and said he borrowed a lighter for it yesterday from Skye (A1195-1205).

If the deceased had come out of the house when he damaged it he said he would have just asked him what he had said and why he tried to hit them, he denied he would have assaulted him (A1255) and did not necessarily want to hurt him (A1256).

He agreed he had been angry that he thought the deceased tried to run him over and that made him damage the property (A1317).

Conversation with the accused and his mother while in custody

The accused spoke to his mother whilst in custody at Nowra police station. She told police he told her “I was walking past with Cody. He was screaming out shit to us and called me a wanker. I went home and got a hammer. I smashed the windows and his car. I went to Sam’s and then went to Skye’s. Natty came and said the house is on fire. I went and had a look and then went to bed with Skye. I woke up in the morning and went to the shop with Skye, got a small boy and then went home. Police came and told me I lit the fire. I didn’t light the fire.”

Fire Investigation

Fire Investigator Andrew Lou of Fire and Rescue NSW attended the scene on the morning of 1 August 2020 and conducted both an external and internal investigation of the premises. He made observations and formed opinions as outlined hereunder.
The front door to the premises had heat damage to the interior and not to the exterior. There was sooting to the rear of the door and charring to the bottom of the door closest to the window. The door frame was free of fire damage, consistent with the front door being closed at the time of the fire. A red towel was found near the front door where an inverted V pattern can be seen, consistently with the deceased coming from the bathroom to extinguish a fire in the lounge with the towel.
There were protection marks and a hole in the lounge room wall between a three-seater sofa and a single seat sofa where fire crews located the deceased.
Bedroom 1 had the greatest fire damage.
Mr Lou was of the opinion there were three seats of fire:

The vehicle in the driveway;

The lounge room; and

Bedroom 1

There was no line of communication between the three seats of fire.
Mr Lou determined the cause of the fire was the use of an ignitable liquid in the three origins and then an introduction of an ignition source to these areas.
Mr Lou formed the opinion that the fire was deliberately lit.

Crime Scene Investigation

Crime Scene Officer Philip Austin (“Officer Austin”) examined the scene on the morning of 1 August 2020. He made observations and formed opinions.
Officer Austin concluded that in his opinion there were two clearly defined seats of fire: bedroom 1 and the burnt vehicle in the driveway and that these fires were deliberately started. The third area of defined burning near the internal bottom corner of the front door (in the living room) was either a third seat of fire or the result of part of a burning curtain dropping down from the curtain above. He noted that the common wall between the living room and Bedroom 1 had been breached, however the lack of fire damage indicates this may have occurred after the fire was extinguished.
Officer Austin was unable to determine the cause or ignition source of the fires. No direct evidence of ignitable accelerants was located during the initial examination of the scene and the analysis of all samples collected from the scene for ignitable liquid residue testing returned negative results. However, based on the speed and intensity of the fire, the strong odour of accelerants smelt by the firefighters when they initially arrived at the scene and the deceased’s 000 call, the use of ignitable liquids in the development of these fires was highly likely.

Accounts of various witnesses

Ms Samantha Monk

Ms Monk provided a statement to police on 4 August 2020. She said that on 31 July 2020 in the morning sometime after 9.00am, she saw the accused with Skye Cruickshank and two of Skye’s children when they arrived at her house. The accused was wearing a white baseball cap and shorts. They stayed for about an hour and when they left the accused said he was going to the shops (IGA Lyndhurst Drive) to get a “Smally” (a bottle of Port). She told police she believed the accused was “acting ‘edgy’” at this time and she was later told by Cody Cruickshank that the accused had had a shot of ice that morning.
At 9-9:30pm on 31 July 2020, Ms Monk went with her friend Mr Hayman to Coles to buy a new mobile phone. She returned home at 10pm and 5-10 minutes later Skye Cruickshank and her daughter Aaleigha arrived and they heard yelling and screaming of male voices coming from the street in the direction of the Cruickshank’s house.
They went outside to the verandah but she did not see anything and they went back inside. A few minutes later they heard more “ranting and raving” coming from the same direction. Mr Hayman subsequently told her the deceased’s house was on fire. Ms Monk went outside to the veranda and she, Mr Cruickshank, Mr Hayman and Aaleigha walked across the road to Ms Sutton and Mr Connelly’s premises and she saw the accused standing on Mr Connelly’s front verandah with Ms Sutton, Mr Connelly and Cody Cruickshank. She said the accused asked her to drive him to Bunberra Street, Bomaderry which she did.
Five to ten minutes later the accused returned to Ms Monk’s car and asked her to drive him back to her house. They returned to Ms Monk’s house and sat on the lounge. Mr Hayman returned to Ms Monk’s house and the accused appeared ‘spacey’. The accused asked Ms Monk for a cigarette which she gave him, the accused made a comment that he thought Aaleigha was his daughter. Ms Monk said she could not understand why the accused told her this and that it shocked her as “Skye” had previously told her that her kids all had the same father. Ms Monk could smell alcohol on him and she thought he was moderately affected by alcohol. Mr Hayman came in and out of Ms Monk’s house giving them updates on what was occurring in the street. The accused and Ms Monk lay on Ms Monk’s bed, then at 2-3am the accused left and Ms Monk does not know where he went.
At 10am the accused, Skye Cruickshank and her children Aaleigha and TJ, returned to Ms Monk’s premises and they spoke about the fire but the accused did not say anything about the fire. Mr Hayman came to Monk’s and told them all that the deceased’s body had been moved and the accused got up and said “I’m going to go”. At 4:00pm that day Ms Monk was speaking to Skye on the phone and she heard Cody Cruickshank say in the background “I was at Natalie’s with Harley before the fire and Rob and Natalie gave Harley the fuel drum to go over there and was saying to him, I bet you’re a gutless cunt and don’t do it”. She said after some reflection she thinks the person she saw running from the deceased’s house on 31 July 2020 looked to be of “similar build” to the accused and they were wearing similar clothing to what she saw the accused wearing earlier in the day but with no white hat.
Ms Monk told police in her statement that some weeks prior to the 31 July 2020, she had received a paper towel containing 15 Xanax tablets, 2 strips of Valium tablets and a note “Can do a deal ???? for $150”. A mobile number and email address was provided and “contact me”. She communicated by text message with that number and received a response from a person identifying himself as “Cameron, I live up the street from you”. She told a few people in the street about the package and the text messages. She learnt that other women in the street had received similar messages and there was a discussion about one of the male neighbours going to confront the deceased about it.

Mr Gavin Hayman

Mr Hayman provided police with a statement on 6 August 2020. Mr Hayman said that on 31 July 2020 he went with Ms Monk to purchase her a new phone and they returned to Ms Monk’s premises at 10pm. They were inside for 5-10 minutes when Skye Cruickshank arrived with her daughter. They heard screaming outside that sounded like males arguing and then glass smashing. He opened the door and looked along Leonard Street and saw the silhouette of a person running from a driveway where the deceased lived. The person was normal sized and had a male style of running. Five minutes later he heard a scream like “rah” and a male say something like “get out here” but he didn’t recognise the voice. He went outside and he saw the house was on fire.
Mr Hayman, Skye, Ms Monk and Skye’s daughter went outside and they saw Mr Connelly, Ms Sutton, the accused and Cody Cruickshank standing on Connelly’s front lawn. Mr Hayman said, “Is there anyone in the house that’s on fire?” and someone said, “That Cameron bloke is in there.”
Mr Hayman went back and observed the scene and then returned to Ms Monk’s, by which time Ms Monk and the accused were inside Ms Monk’s house. Mr Hayman said, “The bloke is dead they couldn’t revive him”. The accused was sitting on the lounge and he did not say anything but appeared “in shock white as a ghost”. Mr Hayman said his suspicions were confirmed so he made a comment to the accused. The accused replied, “My dad raped me and I can’t stand paedophiles so I should go and see my Mum and Dad”. Mr Hayman said the accused was not making sense.

Mr Robert Connelly and Ms Natalie Sutton

On 5 August 2020 police attended Mr Connelly’s house (opposite the deceased’s house) and spoke to the accused’s friend Mr Connelly and his partner Ms Sutton. They were both subsequently interviewed by police.
Police seized a piece of timber (1 x 70cm long timber [square]) pole with silver electrical tape on one end and a burnt piece of black material which had been tied to the stick with wire at the opposite end. The piece of timber was found in Mr Connelly’s backyard. Mr Connelly told police that this stick had been in his laundry cupboard and it had been beside a baby’s bottle containing “a little bit of petrol” and was a weapon for his protection. He said he had previously shown the stick to the accused. The baby’s bottle of petrol was missing from the laundry, although he did not see the accused take anything from his home.
Mr Connelly told police that on the evening of 31 July 2020 when the accused arrived at his house asking for a bandage, he seemed “pretty intoxicated” – Mr Connelly said he could smell alcohol on him - and agitated, “real fidgety”. He said he took the accused into his laundry to get him a bandaid from the laundry cupboard. When the accused asked him for petrol because he wanted to burn the deceased’s car, Mr Connelly said he said to him “Yeah, I got petrol but you don’t want that…you’ll go to gaol, mate”. He said when the accused left he said he was going to find his bottle of port. Mr Connelly was asked by police if the accused gave any reason for wanting to burn the deceased’s car and Mr Connelly said “he just said…just dirty prick, or something like that”. Mr Connelly also said that the accused told him “his missus was mucking up behind his back” and he was “pretty upset” about that.
Mr Connelly told police that about four or five weeks before a script for Valium, pot and a note saying something like “sex for girls” was left in the mailbox. Three to four other women in the street including Sam (Monk) received similar packages and they all suspected it was ”the bloke across the road from me” (the deceased).
Ms Sutton told police that she had seen the accused at about midday on 31 July 2020. The accused was walking past the deceased’s house towards Sam Monk’s house. The accused was yelling, “You wait cunt, you wait cunt”. Ms Sutton said that the accused was “aggressive … he was wild”, “he didn’t look like the same Harley” and he was obviously on something”.
The following day, 6 August 2020, police attended the address again and seized a golf club from the laundry of the premises.

Mr Justin Mitchell

Mr Mitchell, who was living at 22 Leonard Street provided a statement to police dated 14 August 2020. He said that at about 8:30-9pm on 31 July 2020 he heard yelling from outside and he went outside and looked into the deceased’s front yard and saw a male he did not recognise yelling towards the deceased’s house. The male was yelling “you dog cunt, you paedophile dog cunt touching my kid.” This continued for 10-20 minutes and Mr Mitchell returned inside to watching a movie.
Twenty minutes later he heard further yelling coming from outside. He saw a figure coming from the pink house on the opposite side of the street and the person ran to the deceased’s house and was carrying a bar or a bat in their hands. The same male as the first time started yelling “you dog cunt, you paedophile, touching my kid.” The male started smashing the deceased’s car windows, kicking the car and smashing the windows at the front of the premises. The male was yelling “come outside, you dog cunt, paedophile.” After five minutes Mr Mitchell returned inside. At 10:20pm Mr Mitchell thought he heard a sound at the back of the premises and went outside and saw the deceased’s car and house on fire.

Ms Kylie Toomey

Ms Toomey was resident on Leonard Street with her partner Michael Shaw as at 31 July 2020. At 8:05pm on 31 July 2020, she was at home and Mr Shaw arrived and said “be careful there is a guy out there going off, he is probably on drugs.” Ms Toomey looked outside and saw a male in the middle of the road outside the deceased’s house yelling “paedophile”. The male was wearing a white ‘Nike’ cap, ‘brownish’ mullet, five foot five, blue/white t-shirt and shorts and carrying a bumbag on his shoulder. About 5-10 minutes later Ms Toomey heard banging of a window and a male screaming “get out here paedophile”. She went inside and called police. It went silent for a short time and then she heard smashing and the police arrived.
After police had left she looked outside and saw the male running towards the deceased’s house and smashing again and yelling, “paedophile get out here” and he then bolted across the road. She said that when the male was outside the first time she also saw another male on her side of the road of bigger build, wearing a bucket hat and a long neck bottle in his hand he was laughing and walking slowly and when the accused ran he followed him towards the house opposite. Police arrived and she went inside. Fifteen to twenty minutes later she heard dogs bark and went outside and saw an orange glowing coming from the deceased’s house and his car on fire.

Ms Toni Vanderberg

Ms Vanderberg resided on Leonard Street (“the Vanderberg house”). She had known the accused since 2005. Around sunset on 31 July 2020, she heard arguing outside and saw the accused outside the deceased’s premises. He was yelling at the deceased who was behind his screen door. Ms Vanderberg saw the accused bang on the house and smash the car windows. The accused ran to 37 Leonard Street and the people there yelled out “Harley”. She saw the accused return to the Cruickshank house and Ms Vanderberg went inside.
Sometime later, she heard voices again and walked outside and saw the accused in the front yard of the Cruickshank house with a light-coloured thin object and he walked at speed to the deceased’s premises. The accused started smashing the deceased’s car and house and yelling “you paedophile cunt”. The accused returned to the Cruickshank house. Ms Vanderberg went back inside. Sometime after she heard further banging, explosions and loud noise and when she went outside, she saw the deceased’s premises alight.

Mr Jace Vanderberg

Mr Vanderberg resided at the Vanderberg house with his mother “Toni”. On the evening of 31 July 2020 his mother asked him to call police, he went outside and heard yelling and smashing and a man saying “paedophile cunt” repetitively. The male then walked to the Cruickshank house. He saw the male exit the Cruickshank house and a “bigger” female yelled out from 37 Leonard Street “we will back you up Harley”. Mr Vanderberg knew the accused from motor cross riding and he saw the length of the male’s hair and recognised his voice.
The accused walked back into the Cruickshank house and then went “back over to the house up from the left of us, opposite the road.” Two other people were walking behind the accused, a lady with longer hair and a male he did not know. He heard the smashing of windows and fibro and yelling. Police attended and left a short time later. His mother later came into his bedroom and told him the deceased’s house was on fire.

Ms Barbara Cruickshank and Mr Timothy Foster

Barbara Cruickshank and Mr Foster, the mother of Telia and her partner, refused to speak with police about this matter or provide statements.

Mr Joseph Tighe

Mr Tighe refused to speak with police about this matter or provide a statement.

Mr Cody Cruickshank

On 9 September 2020 police spoke with Cody Cruickshank, who was in police custody for an unrelated matter. The conversation was captured on body worn video. He refused to make a statement but said he did not see the accused ‘smash’ the deceased’s house up but heard it, he was at his mother’s house and the accused was coming back and forth. When the accused set fire to the deceased’s home he was at Mr Connelly’s house. He denied he had encouraged the accused and he did not see anyone else encouraging the accused. He did not see the accused get any petrol and he did not see the accused again until a couple of hours later.

Exhibit Examination and Testing

The areas of blood on the window glass, windowsill and letterbox were swabbed and later subjected to DNA analysis. In each case, the DNA recovered had the same profile as the accused.
The SIM card contained in the mobile phone handset found near the letterbox was swabbed for trace DNA. It was later subjected to DNA analysis and the DNA recovered was a mixture originating from at least two individuals. The accused’s could not be excluded as a contributor.
The piece of timber with silver tape on one end found at the front of the premises was photographed and examined but no fingerprints suitable for comparison were able to be developed. It was swabbed for trace DNA but DNA testing was unsuccessful (in the case of the swabs from the timber surface) or the DNA profile recovered was unsuitable for comparison due to the low level and complexity (in the case of the exterior surface of the silver tape).
The piece of timber (1 x 70cm long timber [square]) pole with silver tape on one end and black material secured to the pole with black wire recovered by police from Mr Connelly’s house, was examined. Both the black material and the pole had scorch marks on them, consistent in the opinion of Crime Scene Officer Austin with the black material being used as a wick. The wire was swabbed for trace DNA but DNA testing was unsuccessful. The black material (which was partially burnt remnants of the top portion of a black shoe) was examined by a forensic scientist at the government laboratories at Lidcombe and petrol was detected in the contents.
A swab for trace DNA was taken from the rubber handle of the broken golf club recovered by police from Mr Connelly’s house. It was subjected to DNA analysis and the DNA recovered was a mixture from which the accused could not be excluded.

Letters sent by the Accused to Ms Thompson

The accused sent a letter to his mother, Ms Thompson, which stated:

At 1 o’clock on the 31st of July 2020 I bashed Camron Johnson out the front of 41 Leonard St, Bomaderry then I left and went to 33 Leonard St Bomaderry for about 1 hour then I went to JoeBoils and smoked ice and drank port then went up to the Tav in North Nowra till about 5 o’clock then went back to JoeBoils and smoked some more ice and drank some more
Then Telia showed up with James Tigh and she pissed me [off] so I left I went to Sames house but she wasn’t home so I started walking home
I got to 41 Leonard St and that Camron got out of his car and said there’s the little wanker down the road so I smashed his spot lights down then went home and got my hammer and smashed his windows on the house then he called the police. The police left then I went back smashed his car and then he rang the police again so I ran home and I dropped my phone the police took some photo’s of the smashed windows and car then the police left so I walked over to Robb Connllys house and I was telling them what I done and Rob said burn his car and gave me the petrol boatel and stick so I burned his car and then I thought fuck this cunt so I burnt the house I started at the front room then went one window by window so I new he was dead he is a paedophile
now you know whats its like in the eyes of a killer

Letters sent to his ex-partner Telia

In the first letter in the tender bundle the accused wrote:

Hey my baby how are ya how’s every one at home I love you baby and miss ya I whent to cort bub and thy nkocked back the manslaughter they are trying to just charge me with murder
You need to go to the cort house and get the AVO fixed up
Im Shattered coz I got my hopes up now Im looking at 15 to 20 years jail
You need to tell the police Rob Connly gave me the petrol bottle and stuck to light the fire coz Im looking at the rest of my life in jail or get sam to tell the police
I love ya bubba
Love Harley
Your number one xxx

In the third letter in the tender bundle, the accused wrote:

…I wish I didn’t light the fire that night I miss you I done it cos I was fighting with you

In the fourth letter the accused wrote:

Hey bub how are ya
I hope ya well I fucking miss ya
I love ya so so much
Its killing me I can’t see ya
They knocked back manslaughter so I’m looking at 16 to 25 years
Its fucked I will always love you and I will wait for you
The AVO finishes in 2023 so you need to go to the cort house and get it DROPPED
And baby send me a letter and photos its doing my head in I can’t talk to ya
I miss ya bubba girl
Keep putting money in baby

On 31 October 2021, the accused was recorded on a call to Ms Monk. The accused is V.1 and Ms Monk is V.2.

V.2    And then I looked at Alia yesterday and I said it straight to Telia’s face, I said, “I’m sorry, but who the fuck does that look like to you?” She’s like, “Shut up man,” argh, argh, argh.
V.1   Yeah, I, I told you she was mine.
V.2   Yeah.
V.1   Even, I’m, I’m shown all these photos of um, like photos of me when I was on the outside and there, there’s a photo in there of Alia - - -
V.2   Yeah.
V.1   - - - and they go, “Fuck, she, she’s a spitting image out of your mouth.”
V.2   Yeah. And the photo of you and your other daughter and Alia are exactly the same.
V.1   Yeah, I know, but Skye denies it.
V.2   Mmm. Skye’s just, she doesn’t, well, I would too with Telia there.
V.1   Yeah. But I, I was reading your statement that you said that I was saying that Alia was mine and that. ..... and then you asked Skye and Skye said that she ..... the same kid.
V.2   Yeah.
V.1   So kid to the same father.
V.2   But that’s exactly what was said man.
V.1   Yeah, I know. Yeah, I know. Yeah.

The accused is recorded saying “I can barely remember that night really. I know what I done, but ---”
On 6 November 2021, the accused was recorded on a call to Ms Monk saying:

“Can you tell Telia, tell her that my, the manslaughter got knocked back”;

“I’m fucking spewing”;

“I went for the bail and the, yeah, they knocked it back. And now they done manslaughter under the Mental Health Act. Yeah and it got knocked back”;

“Well, they’re trying to pin first degree still on me”;

“So I’m looking at fifteen to twenty-three years”;

“They’re trying to say it was premediated because I went back there three times and I smashed up his house, they’re trying to say I tortured him in the house”;

“And I was like, but his son was there, I said his son fucking escaped out the back door”;

[The accused and Ms Monk spoke about unrelated matters for three minutes.]

“You know how you were telling me to tell the coppers that fucking them cunts were egging me on and that…if the coppers come and see Telia again tell her to tell them that fucken that she knew they were egging me on..”cause I don’t want to say it, I don’t want to be, sound like a dog”;

“’Cause that’s what I, I was thinking that I should tell Telia to tell them that fucken Rob gave me the stick and that to [indecipherable]”;

“Yeah, ‘cause that’s what I need someone to do, tell them that fucken Rob gave me the stick and petrol bottle”;

“Cause it’s been stressing me out”;

“Because which they did. They did give me the petrol bottle…so I’m not a liar”.

Overview

Having regard to the factual material before the Court including the agreed statement of facts, the following findings of fact including inferences drawn from the facts may be distilled:

The accused provided a false account in the ERISP in two respects:

He did not light the fire at the deceased’s house

The amount of drugs and alcohol he had consumed on 31 July 2020. He downplayed his consumption of those substances on that day.

Dr Eagle thereby correctly described him as a “poor historian.”

Those false statements were exculpatory in nature. He also made inculpatory statements in his ERISP as to his involvement in the first and second incident.

The accused was yelling abuse at the deceased when the deceased was situated in his house. The accused was emphatic, in the abuse leveled at the deceased in the first, second and third incidents, that the deceased was a pedophile. This is despite a slender basis for him to form such a view based on neighbourhood rumours and information conveyed to the accused that the deceased had approached young women and offered them pills. No one in those allegations suggested those approached were children.

The accused was described by witnesses as exhibiting the following features during the incidents - “edgy and spacey” (by Ms Monk); “agitated and fidgety” (by Mr Connelly) and “not looking like the same Harley” (by Ms Sutton). The accused was heard laughing in an “excited” or “crazy” way.

The accused believed that the deceased directed derogatory remarks toward him during the incidents. However, it may be inferred that the deceased did not do so. Whilst there is some very limited direct and inconclusive evidence such as Mr Hayman referring to what “sounded like males arguing” that was said to have been heard at the same time as “glass smashing and a male challenging” someone to “get out here” (during the incidents) and Ms Vanderberg hearing “voices,” it is clear that the deceased (and his son) were terrified of the accused during the incident as evidenced by the recordings of triple “0” calls. The deceased consistently described the accused as “scary” and capable of smashing through the front door. The deceased said he did not go to have a look outside and that he was “hiding” from the accused and he feared the accused “would kill us.”

The accused’s behaviour was disorganised having regard to the messages he sent from the “pub” and his comings and goings from various residences on the day of the incidents, on one occasion having left and returned from one premises on a number of occasions.

In his record of interview, the accused stated that the deceased had slowed down in his car when he drove past the accused and was passing him at random times of the night (as well as nearly hitting him with his car), notwithstanding that the accused made clear in his ERISP that he did not know the deceased until the day of the incidents.

The accused told police that the media were saying to him “Did you do something to [the deceased]?”

The accused was “angry” by the time he lit the fire because of the relationship difficulties with his partner, because he believed the deceased was a pedophile and because he perceived (irrationally) the deceased was yelling abuse at him.

There was no evidence of the accused hearing voices, talking to himself ‘or nobody’ at the time of the three incidents. He did not mention hearing voices in the ERISP or in his letter to his mother.

The account of his motive given by the accused to his mother, “I thought fuck this cunt, so I burnt his house. I started at the front room then went one window by window, so I knew he was dead” was inconsistent with his account to the psychiatrists when he said he had lit the fires to lure the deceased out to fight him.

The accused had said that he thought “Skye’s daughter” was his child but there appears to have been some substance in the assertion.

The letters to the accused’s partner and a telephone call to Ms Monk demonstrated an apparent appreciation of the basis for a defence and the implications of a conviction for the offence of murder (and that other convictions may be entered such as manslaughter).

EXPERT EVIDENCE

Qualifications of the Experts

It is unnecessary to delve deeply into their curriculum vitae’s because both the Crown Prosecutor and counsel for the accused accepted that Dr Eagle and Dr Ellis were eminent forensic psychiatrists. It is sufficient to note that Dr Ellis currently holds the post of Clinical Director and Medical Superintendent of The Forensic Hospital, holds a conjoint appointment as Associate Professor with the University of New South Wales Medical Faculty, School of Psychiatry and is a Consulting Psychiatrist to the NSW Police State Protection Group. Dr Eagle is currently a Senior Staff Specialist with Sydney Local Health District and a Consultant Forensic Psychiatrist in private practice.

The Crown’s Submissions

The Crown pointed to the fact that the opinions and diagnoses of both psychiatrists were largely predicated on the accused’s self-reporting. However, the accused’s accounts were dishonest and unreliable.
The Crown submissions, by refence to countervailing factors which undermined the expert opinion were as follows:

Lies told in his interview

Both experts accepted that the accused lied in the police interview - he gave a blatantly false account of events. However, as aforementioned, Dr Eagle stated that lots of the things the accused said were self-incriminating and that the accused references to the deceased yelling at him and the media asking him, “Did you do something to Mr Johnson?” were possibly auditory hallucinations.

Inconsistencies in accounts and the opinion of the doctors that he is a somewhat unreliable historian

The unreliability of the accused was demonstrated unquestionably by the answers he gave in his ERISP. While Dr Eagle acknowledged the accused dishonesty, she also pointed to several self-incriminating statements made by the accused. The Crown submitted that Dr Eagle based much of her opinion on what the accused told her of his experiences, which were clearly a false account.

The accused’s account in the letter to his mother (tender 4A, Exhibit 1), in which he wrote “I thought, fuck this cunt, so I burnt the house. I started at the front room then went one window by window, so I knew he was dead” is entirely inconsistent with the intention that the accused described to both experts, which was that in lighting the fires he was attempting to lure the deceased out in order to fight him. The Crown submitted that the inconsistencies in the accused’s accounts of the third incident calls into question the reliability of his account of his mental state at the time of the offending, given to both psychiatrists and his history of his mental health.

Dr Eagle acknowledged that there was no objective evidence of the accused hearing a voice at the time of the alleged offence, however, she also gave evidence that the accused’s account of hearing voices was but one symptom from which she formed the opinion that he was suffering a psychotic disorder. The Crown pointed to the other symptoms Dr Eagle relied upon (paranoid delusions and referential ideas and beliefs) being based on the accused’s self-report.

The ingestion of drugs and/or alcohol as an alternative explanation for his behaviour

The accused minimised his drug and alcohol use on the day of the alleged offence. Dr Eagle considered that this was not unusual and did not cause her concern in terms of relying on the accused’s account of his experiences to her. The Crown pointed to the fact that while this is perhaps not as significant as the false account, he gave of not having lit the fires, it is an additional false account that he gave to police.

The possibility that the accused had feigned symptoms

Although Dr Ellis gave evidence that he had screened for some typical things that, if you ask populations in the community to feign mental disorder they would respond to, he acknowledged that the technique is not a foolproof way of determining whether someone is malingering their presentation or not.

Dr Eagle described her list of screening questions that she administered and said that it was consistent with genuine symptoms. If it was not, she said she might go on and do a more structured assessment, but in this case there was no indication of feigning.

The letters the accused wrote to his mother and ex-partner and the phone call to Ms Monk suggest “he might be malingering or exaggerating his symptoms.”

The possibility that the accused’s actions were anger fuelled

The Crown did not make submissions regarding this issue.

The Accused’s Submissions

Counsel for the accused submitted that, the experts were unanimous in their opinion that the accused was suffering at the time of the alleged offence from a mental health impairment and that he did not know at the time of committing the acts that he did that the acts he was committing were wrong. The Court ought to accept the expert which was soundly based. The experts had an advantage over the Court in making an assessment of and diagnosis of mental illness.
Counsel for the accused submitted that while there are some pieces of evidence that point in a countervailing way to the experts opinions, the psychiatrists determined that, nonetheless, and in that light, the accused had available the defence based on the evidence before the Court.
It was submitted that the Court would not be in a position to reject the evidence of the psychiatrist’s, bearing in mind that the test in that regard is on the balance of probabilities. Accordingly, the special verdict of act proven but not criminally responsible would be the verdict found by the Court.
The accused’s submissions as to particular areas of controversy as to countervailing factors were as follows:

Lies told in his interview

The accused clearly did lie in his interview however he also gave many responses that were, as Dr Eagle perceived from her psychiatric perspective, relatively self-incriminating.

Dr Eagle observed that the accused’s reference to the media saying to him, “Did you do something to Mr Johnson?” in his interview was some evidence of his delusional thinking.

Dr Eagle opined that the accused appeared to genuinely believe at the time of the interview that the voices were not a symptom of his illness which is why he did not raise them in the interview.

The lies were not definitive and both experts acknowledged that lies told in a police interview setting could be motivated by any number of reasons, the most obvious being the desire to be given bail.

Inconsistencies in accounts and the opinion of the Doctors that he is a somewhat unreliable historian

The experts did not just listen to what the accused had to say to them, they also considered his criminal history and history of mental illness prior to the alleged offence, documents by mental health professionals including those in Frankton Hospital in Victoria and evidence from the agreed statement of facts.

The letter sent by the accused to his mother revealed an inconsistency as to the accused intention at the point of lighting the fire. However, Dr Ellis opined that the inconsistency may derive from persecutory beliefs at play with respect of the accused relationship with his mother.

The experts stated that the absence of a reference to voices in the letter to his mother can be explained by a number of factors, including that, in the sufferer’s mind, the voices became part of a norm.

Dr Ellis regarded the inconsistencies between the accounts given to him as opposed to Dr Eagle as relatively minor and also acknowledged that the accused was an unreliable historian. Dr Ellis noted that reporting with “exactitude” would be “more of a red flag.” He also opined that some inconsistencies could be explained by the accused being seen at differing stages of his treatment, given his symptoms subsided gradually while he was in custody.

The ingestion of drugs and/or alcohol as an alternative explanation for his behaviour

Dr Dayalan (a respected psychiatrist per Dr Ellis) saw the accused on several occasions during his stay on remand. Dr Dayalan reported that the accused was seen to have symptoms in particular including auditory hallucinations and they were there present at admission. The symptoms did dissipate but took time to do so. Dr Eagle’s opinion was that a purely drug induced psychotic state would expect to see some significant improvement in a matter of days and at most, a couple of weeks, whereas, in the accused’s case, it was over several months and needing an increase in medication in order to achieve an improvment. Both experts were of the view that this was consistent with an underlying illness, not with what is seen in purely drug induced conditions.

The possibility that the accused had feigned symptoms

The absence of a reference to voices in the accused’s letter to his mother is in fact consistent with a person who is not feigning.

Both psychiatrists conducted as assessment that is not just simply a yes/no questioning type process but rather a question process designed to elicit information and to identify if there is any possibility of feigning of symptoms.

Both psychiatrists referred to the fact that when assessing those with genuine symptoms that it is not just saying “I’m hearing voices.” It is the way in which the patient describes the phenomena of the voices in terms of how they present and when they are experienced that in both experts view suggested that the accused was described a genuine experience of psychotic phenomena.

That the accused was unlikely to have the level of intelligence that would be required to learn the level of detail in his responses.

That the phone call to Ms Monk in which the accused references being knocked back in respect of manslaughter was in early November 2021, which suggests that the accused is no more than conveying information to Ms Monk that he has been provided by lawyers at that point in time (considering he was charged in August 2020). The phone call in no way supports a suggestion that the accused is creating a mental illness for the purpose of the Court, the question of a mental illness defence had already been raised prior to the phone call.

Dr Ellis pointed to the fact that the accused had a defined set of symptoms, which suggests he was not feigning. Further, the accused had been subject to forensic assessments by two expert psychiatrists as well as clinical assessments on several occasions by Dr Dayalan. This is important as there were not just a simple, single assessment.

The possibility that the accused’s actions were anger fuelled

Dr Eagle acknowledged that the acts of the accused if considered in isolation could in fact be explained by anger. However, there were factors pointing towards psychosis (the anger was misdirected, delusional thoughts, paranoia associated with the deceased slowing down, referential experience from the television and auditory phenomena relating to the deceased yelling at him).

CONSIDERATION

As the Court has found that the Crown has established beyond reasonable doubt the first element of the offence of murder, the central question in this trial is whether the accused, having raised a mental health impairment defence, has established that defence for the purposes of s 28 of the Act on the balance of probabilities.
That question may not be properly answered solely by reference to the opinions of the experts, even though they firmly held a view that the accused had a mental health impairment, as defined in s 4 of the Act, arising from a psychotic disorder (Dr Ellis diagnosed an underlying mental illness such as schizophrenia, schizoaffective disorder (depressive subtype) or depression with psychotic features that has been exacerbated by substance use, and Dr Eagle, schizophrenia), and both experts opined that the accused did not know the act resulting in the charge brought against him was wrong, that is, a person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.
The Court must determine whether the defence is established having regard to the entirety of the evidence, in a context where the experts found the accused did know the nature and quality of the act, a conclusion not disputed by the defence.
In substance, the Crown contended that the Court should be cautious in accepting the expert opinions in circumstances where their opinions may be undermined to the extent they relied upon the self-reporting of the accused in circumstances where he had been shown to be unreliable and dishonest in his statements to police and had given inconsistent accounts to the experts and his mother regarding his motives for lighting the fires. Issues were raised as to whether he had feigned his mental condition or malingered in order to reduce or eliminate culpability or the gravity of the charges brought against him.
The defence accepted that the bases for the expert opinions relied, in part, upon the accused’s unreliable accounts but contended the experts had considered those issues and, on balance, found them not to be overall decisive in excluding the defence. Strong reliance was placed upon the objective evidence which was relied upon by the forensic psychiatrists to reach their opinions, independently of the accused’s self-reporting and the careful approach adopted by the psychiatrists in assessing the accused discern any malingering.
There are four significant matters which require mention at the outset of these considerations which, in my view, significantly bear upon the acceptance of the expert opinions and ultimately a finding that a defence had been made out.
First, as Button J observed in Carter, while the Court is not compelled to accept joint opinions of experts of the kind the Court has received in this trial, they are nonetheless highly significant. The evidence should not be rejected unless there is evidence sufficient to cast real doubt upon the psychiatric evidence.
Secondly, there was no dispute that Drs Eagle and Ellis are eminent forensic psychiatrists. The formulation of their ultimate opinion was based on rigorous and extensive inquiries across a wide range of sources (including the ERISP of the accused, statements of witnesses, the letters written by the accused to his mother and ex-partner, and various other medical records) using screening techniques for testing the veracity of accounts given by the accused.
The questioning undertaken by the experts was designed to elicit information and identify feigning of symptoms. Nonetheless, the accused responses were consistent with what the experts had observed in other settings and did not replicate a lay persons understanding of schizophrenia.
Further, the experts drew upon their extensive experience with psychiatric patients including those suffering from chronic mental illness and those experiencing substance induced psychotic symptoms without an underlying illness.
Overall, I consider the experts gave frank and convincing opinions while also acknowledging and dealing with the countervailing factors bearing upon their opinions.
Thirdly, the opinions of the experts were predicated upon considerations which extended well beyond the self-reporting by the accused, or which corroborated the accused being in a psychotic state at the time of the alleged offending, as follows:

The clinical roles of other medical practitioners examined by the experts demonstrated a change in behaviour by the accused leading to events in 2020 including increased aggression and disorganized behaviour and thinking including a fixation with a bystander. With a retrospective analysis, this appeared to be the onset of mental illness which was not treated at the time.

The records from Peninsula Health which refer to the accused being brought to hospital in Victoria in November 2019 after running onto a road with suicidal intent suggest that at least some clinicians suspected the accused was psychotic at that time. He was intoxicated at that time but reported that he had not been using methylamphetamines for three months.

The accused has been reporting experiencing auditory hallucinations since he was 23 at least, consistent with a chronic psychotic disorder.

This longitudinal picture - the accused’s history of hospitalisation in Victoria in 2019, the medical records by clinicians in Victoria, the significant functional decline of the accused and change in his behaviour identifiable by his relatives for the period leading up to the alleged offences was a significant factor in why the experts rejected the notion of the accused feigning his symptoms. The history of the accused provided by his mother demonstrates the onset of aggression and violence in the last few years leading up to the alleged offence. Dr Eagle explained that this formed part of the functional decline observed when people are developing a chronic psychotic illness. The accused went from being employed and productive and leading a relatively stable lifestyle to deteriorating.

Dr Ellis explained that the serial evaluation (notes made over time) by Dr Dayalan reduced the risk of feigning because he was able to see the accused again and again. Dr Eagle agreed that it added weight to the proposition that the accused has a genuine illness because the nature of his symptoms were consistently reported to Dr Dayalan.

The experts had regard to the accused’s state in remand. The accused was assessed and treated over a period of time by Dr Dayalan, a respected psychiatrist. Dr Dayalan also assessed the accused as having auditory hallucinations both at admission and subsequently. The condition did improve but not rapidly. An increase in medication was required to reduce the symptoms. This has significance at three levels in terms of the accused’s defence. First, another respected psychiatrist reached a similar conclusion to Drs Ellis and Eagle. Secondly, it is apparent that the mental illness would not resolve itself and would require medical intervention. The accused was not taking medications at the time of the alleged offending. Thirdly, according to Dr Eagle, the recovery period points against the accused having encountered a drug induced psychotic state as opposed to an underlying mental illness at the time of the alleged offending as it may be expected the former to have resolved after a few days or at most a couple of weeks rather than the months taken by the accused. Both experts considered this outcome was consistent with the evidence of an underlying mental illness.

The experts took into account the observations made by neighborhood witnesses of the accused which showed the accused engaging in odd behaviour at or about the time of the alleged offending.

The experts placed weight in reaching their opinions as to the accused being in a psychotic state at the time of the offending upon perceptions of the accused at or about that time such as the accused’s account that the deceased had yelled abuse at him from the premises (which I have inferred did not occur) or the deceased driving slowly past the accused at various times (when, virtually at the same time, the accused stated he did not know the deceased).

The accused’s verbal attack upon the deceased as being a pedophile was undertaken with a singular conviction, in absolute terms, where the evidence of the deceased by a pedophile was flimsy and questionable. The experts also attached significant to this matter in their diagnoses of the accused.

Fourthly, and noting the need to carefully examine the countervailing considerations raised by the Crown, Dr Eagle’s account as to why the accused’s diagnosed condition at the time of the alleged offending would meet the definition of mental health impairment in s 4 of the Act was convincing and essentially unchallenged. In summary, Dr Eagle stated as to the elements of s 4:

Regarding s 4(1)(a), the accused has a psychosis or a psychotic disorder resulting in symptoms such as delusions and hallucinations, in addition to impairments in his thinking, in his judgment and in his behaviour and disturbances of his thoughts, mood and perceptions.

Regarding s 4(1)(b), a psychotic disorder reaches the clinical diagnostic threshold for a number of classification systems and warrants treatment and intervention.

Regarding s 4(1)(c), the accused was experiencing auditory hallucinations and delusions which are positive symptoms of psychosis and impact a person’s judgment by influencing their perception of reality. In the accused case they potentially provided a motivation for his actions, preventing him from being able to weigh up or reason as to the wrongfulness of his actions.

Regarding s 4(2)(c), the accused had a mental health impairment that arose from a chronic underlying psychotic disorder.

Dr Eagle explained that psychosis is a severe psychiatric condition that results in global disturbances of a person’s thoughts and experiences and also causes a change in a person’s mood, perception of their experiences in the past and can disturb memory.

In my view, these considerations present a compelling basis for the acceptance of the unanimous opinion of the experts as to the accused’s mental health impairment and the availability of a defence under s 28 of the Act but may not be said to be determinative until a further assessment of the countervailing factors identified by the Crown is undertaken.
By way of overview as to that latter consideration, when regard is had to the explanations provided by the experts, I do not consider the countervailing factors, whilst relevant to the accused of the mental health impairment defence, should result in the Court finding the accused had not made out a mental health impairment defence under s 28 of the Act.
I turn then to consider, in that light, the foundations for that conclusion. My reasons are as follows:

It is true that the accused lied in his ERISP. He denied lighting the fire and he has since acknowledged that he did. He understated his consumption of drugs and alcohol on the day he lit the fires. However, in my view, Dr Eagle is correct in saying that the accused also gave self-incriminating responses in his ERISP. His admission as to attending the house of the deceased on the first two incidents was certainly inculpatory. Hence, the lies told by the accused were not definitive and were motivated by a number of reasons, namely the accused’s desire to be given bail.

I accept the evidence that the lies the accused told in the interview could suggest that the accused did not appreciate what he was doing was wrong at the time and that as Dr Ellis explained, the accused’s lies in the police interview itself is also evidence of uncomposed reasoning.

I accept the opinion of the experts that the lies the accused told in the interview did not as such suggest that the accused did appreciate what he was doing was wrong at the time. As the experts stated, the lies do not represent great evidence of “composed reasoning”. It was a “naïve motive”. Dr Eagle stated that, in terms of a psychosis, there is a distinction between knowledge of a legal wrong and a moral wrong. The accused may have reflected with composure as to illegality and its consequences for him but would have been unable to reason as to the moral wrongfulness of his actions at the time of his offending or in providing answers in his ERISP. The psychotic condition created a conviction for the accused to deal with a (supposed) paedophile.

I accept that it is not unusual that the accused minimised his drug and alcohol use because it is likely that he instinctively recognised that it is not something that is beneficial for him to volunteer.

The references to the deceased driving past the accused slowly, the yelling by the deceased and the media saying to him, “Did you do something to Mr Johnson?” evidence the accused’s delusional thinking, them being, on any objective assessment of the evidence, not reality based.

The accused did not refer to hearing voices during the ERISP or in his letters to his mother or ex-partner, but as the experts opined, the accused appeared to genuinely believe at the time of the alleged offence (and his ERISP) that his voices were not a symptom of his illness and would likely have experienced them as part of his natural being.

Dr Ellis was of the view that some minor inconsistencies in the accused’s account was, in fact, less concerning than if the report had been exact in its consistency throughout.

Regarding the inconsistencies in his account of why the accused lit the fire, Dr Ellis explained that the inconsistencies were occurring at differing points in his treatment. Further, Dr Ellis explained that it is likely he held persecutory beliefs regarding his mother.

Dr Ellis’s view was that one of the reports by the accused when he was admitted to hospital in Victoria on 2 November 2019 may amount to the symptom of echo des pensée, which he described as “a very technical psychiatric term of hearing your own thoughts spoken out loud, again, the general population are extremely unlikely to know about and many psychiatric registrars will fail in their exam on that kind of question.” Because it is such a rare symptom, it is more likely he was experiencing that symptom than the hypothesis that he had learnt it somewhere.

As I have mentioned, the accused’s symptoms continued despite antipsychotic treatment and only improved when that medication was increased. This is consistent with someone who is responding to treatment because they have an underlying mental health condition such as a psychosis, rather than substances being for the sole cause or even the primary cause of his behaviour.

I accept the evidence of the experts that it is most unlikely the accused was feigning his symptoms which were more consistent with actual mental illness. As Dr Ellis suggested, it is unlikely the accused could have learnt from textbooks the responses he gave in interviews with the psychiatrists. Both experts had undertaken screening processes designed to detect malingering and none was detected.

As Dr Eagle suggested, the accused’s phone call with Ms Monk in which he refers to being “knocked back” with respect to manslaughter can easily be explained as no more than conveying information that one would expect he would have been provided by lawyers at that point in time.

The accused had a defined set of symptoms, rather than ticking the boxes of all possible symptoms of psychosis. Further, it was not a simple, single assessment where the accused had managed to fool someone, but two forensic assessments and the clinical assessments of Dr Dayalan. The clinical records from years before the alleged offence, indicated that at least some clinicians suspected the accused was psychotic. These factors support a longitudinal diagnosis of psychosis and in my view, on balance, exclude the suggestion that the accused was feigning his symptoms.

Although the acts of the accused, if considered in isolation, could be explained by mere anger, the other factors (delusional thoughts, paranoia, the referential experience from the television) point to psychosis. Dr Eagle explained that the emotion of anger may actually exacerbate a psychotic disorder.

Is the Defence Established?

Having considered all the evidence placed before the Court, I am satisfied that the defence of mental health impairment is established and that a special verdict should be returned pursuant to s 31 of the Act.
For the reasons I have given, I accept the opinions of the two eminent forensic psychiatrists, Dr Eagle and Dr Ellis, that the two limbs of s 28 of the Act have been established. The accused has a mental health impairment as defined in s 4 or the Act and the accused did not know that, at the time of carrying out the act consisting of the offence of murder, namely, the lighting of the fire at the premises, the act was wrong.
The accused has a psychotic disorder (or psychosis) diagnosed as schizophrenia or schizoaffective disorder (depressive subtype) or depression with psychotic features. This has resulted in persecutory or referential delusions or auditory hallucinations. The condition is severe; although responding to medication, and results with global disturbances and experiences in the accused’s thoughts and did so at the time of the alleged offence.
He experienced temporary or ongoing disturbances of thought, perception, mood and mostly likely memory. The disturbances were regarded by the experts as significant for clinical diagnostic purposes and the disturbances significantly impact judgment.
While the accused has a substance abuse disorder, his impairment is his underlying mental health condition and is not caused solely by the temporary effect of ingesting a substance or a substance use disorder.
There were countervailing considerations which were relevant to the assessment of the expert evidence and more generally as to whether the accused had made out a defence but I have found, for reasons given in my judgment, those factors did not ultimately diminish my acceptance of the expert opinion and were adequately dealt with by the experts. These factors do not result in the Court rejecting a mental health impairment defence.
I am satisfied that the accused knew of the nature and the quality of his act but did not reason with a moderate degree of sense and composure about whether the act, as perceived by a reasonable person, was wrong.
The defence is thus made out.

VERDICT

On the charge that the accused on 31 July 2020 at Bomaderry in the State of New South Wales did murder Cameron Johnson, the Court finds the act proven but the accused not criminally responsible for it.
The verdict that will be entered on the indictment is “act proven but not criminally responsible”.

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Decision last updated: 05 August 2022

Medium Neutral Citation:	R v Thompson (No 1) [2022] NSWSC 1044
Hearing dates:	25 to 28 July 2022
Date of orders:	05 August 2022
Decision date:	05 August 2022
Jurisdiction:	Common Law - Criminal
Before:	Walton J
Decision:	Act proven but not criminally responsible
Catchwords:	CRIME – murder – elements of the offence of murder – defence of mental health impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 28 – Judge alone trial – two limbs of the defence of mental health impairment – meaning of “mental health impairment” under s 4 – whether the act was wrong – s 29 directions – Criminal Procedure Act1986 (NSW) – s 133 directions – expert evidence – special verdict – act proven but accused not criminally responsible
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 132, 133 Evidence Act 1995 (NSW), s 131 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 29, 30, 31
Cases Cited:	AK v Western Australia (2018) 232 CLR 438; [2008] HCA 8 Carter v R [2019] NSWCCA 11 Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Fleming v The Queen (1988) 197 CLR 250 Hawkins v The Queen (1994) 174 CLR 500 Lucas v The Queen (1970) 120 CLR 171 R v Hall (1988) 36 A Crim R 368 R v Jenkins (1963) 64 SR (NSW) 20 R v Klamo (2008) 18 VR 644; [2008] VSCA 75 R v Minnani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v Siemek (No. 1) [2021] NSWSC 1292 R v Tonga [2021] NSWSC 1064 Spiteri-Ahern v R [2022] NSWCCA 56 Tumanako v R (1992) 64 A Crim R 149
Category:	Principal judgment
Parties:	Regina (Crown) Harley Thompson (Accused)
Representation:	Counsel: K Ratcliffe (Crown Prosecutor) S Fraser (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2020/00224600