R v Zhang

[2014] NSWDC 331

District Court

New South Wales

Medium Neutral Citation:

R v Zhang [2014] NSWDC 331

Hearing dates:

7 & 9/10/2014

Decision date:

09 October 2014

Jurisdiction:

Criminal

Before:

Judge S Norrish QC

Decision:

Count 1 - Not guilty

Count 2, 3 & 4 - Not guilty by reason of mental illness.

Catchwords:

Criminal – trial by judge, mental illness

Legislation Cited:

Crime (Domestic and Personal Violence) Act, 2007
Criminal Procedure Act (1986)
Firearm’s Act 1996
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Fleming v R (1998) 197 CLR 250
McKinney and Judge v R [1991] HCA 6
R v McNaghten [1843] UKHL J16

Category:

Principal judgment

Parties:

Director of Public Prosecutions
Yu Zhang - Accused

Representation:

Counsel:
Mr O’Brien – Crown
Mr P Skinner - Accused

Solicitors:
Director of Public Prosecutions
Ford Criminal Lawyers - Accused

File Number(s):

2013/244305

Judgment

1. HIS HONOUR: Could you stand up please Mr Zhang.

2. I return these verdicts in relation to the counts on the indictment. Firstly, in relation to count 1 on the charge alleging that you on 5 August 2013 at Burwood in the State of New South Wales used an offensive weapon namely a 6 millimetre blank fire calibre BBM manufactured a model Olympic 6 blank fire revolver with intent to commit an indictable offence namely intimidation. I find you ‘not guilty’.

3. In the alternative count alleging that you at the same date and place assaulted Constable Peter Driscoll a police officer acting in the execution of his duty, I return the special verdict of ‘not guilty on the ground of mental illness’.

4. In relation to count 3 which alleges at the same date and place you possessed a prohibited pistol particularised in count 1, without being authorised to do so by license or permit. I return a special verdict of ‘not guilty by reason of mental illness’.

5. In relation to count 4 which alleges that you at the same date and place possessed a prohibited pistol which is particularised as set out in counts 1 and 3, which was not registered, I return a special verdict of ‘not guilty on the grounds of mental illness’.

6. Just take a seat sir, I have to give a judgment.

7. I have just read onto the record the counts in the indictment that was presented by the learned Crown Prosecutor last Tuesday. I will not repeat the details of those counts for the purposes of this judgment. I have as is my practice in trials by judge alone already given the verdicts.

8. This was a trial by judge alone pursuant to s 132 Criminal Procedure Act (1986), the relevant election was signed by the accused on 1 October 2014 acknowledging that he had sought and received relevant advice and apparently that election was consented to by a representative of the Director of Public Prosecutions either on that date or on 2 October 2014. The election was filed on 2 October 2014 and any deficiencies in notice or other irregularities were waived by the learned Chief Judge before the trial was allocated to me last Tuesday morning.

9. A trial by judge alone in accordance with the provisions of the Criminal Procedure Act requires the trial judge, not just to state the bare principles of law which are applied and the findings of facts that are made, but also to expose the reasoning process justifying the findings of fact and ultimately the verdict.

10. All principles of law which are relevant and required to be applied and considered should be identified in the judgment including any necessary warnings that the trial judge is required to apply in the assessment of the evidence.

11. In this regard I apply the principles that were set down by the High Court in Fleming v R (1998) 197 CLR 250. In a trial by judge alone even where the issue of mental illness is raised as it is here as a defence, requiring proof by the accused on the balance of probabilities, the prosecution bears the burden of establishing the relevant elements of any particular charge alleged against the accused. That burden or onus rests upon the prosecution throughout the trial, the accused bears no onus of proof in relation to matters concerning proof of the elements of the relevant charge.

12. In considering matters where there are matters on an indictment, where they are charged separately, each count must be considered separately in the context of the burden being upon the prosecution to establish all essential elements or ingredients of the particular charge under consideration.

13. In this particular matter the accused did not give evidence himself, although evidence was adduced by the production of reports from a psychologist and a medical practitioner on his behalf solely directed at the issue of the special verdict sought in respect of some of the counts in the indictment.

14. An accused person, of course, bears no onus of proof except in relation to matters such as the raising of a defence required to be proved by the accused. An accused person cannot be compelled either in court or in particular circumstances out of court to say anything in defence of himself. All persons facing trial by judge and/or judge and jury are entitled to remain silent in court and to put the prosecution to proof in relation to the matters where it bears that burden. 

15. I cannot draw any adverse inference against the accused because he exercised his right to silence. I cannot interpret it in any way as being an acknowledgment on his part as to the accuracy, veracity or strength of the prosecution case, I cannot be tempted to reason that the accused has remained silent because he believes he is guilty. Such reasoning is prohibited I am not permitted to engage in it and I do not.

16. It is not for the tribunal of fact to speculate as to why an accused person has not given evidence and I cannot treat the accused’s election not to give evidence as filling any gaps in the Crown case to seek to exist.

17. In order to establish the relevant elements or ingredients of a particular count under consideration the Crown must prove each and all of essential ingredients or elements beyond reasonable doubt.

18. So far as the elements of the counts in the indictment are concerned I need only deal with those briefly, given the way the case has been conducted. In relation to count 1, putting aside the particulars as they are not essential elements of what the Crown needs to prove, the Crown must prove, firstly, that the accused used an offensive weapon and secondly that he did so with the intent to commit the indictable offence of intimidation. I pause for a moment to note from the expert evidence that was adduced in the prosecution bundle of material that was tendered and from the way the case was conducted by the defence that the relevant weapon that was ultimately seized from the accused or recovered from him after he threw it to the floor in circumstances I will outline later and particularised in each of the counts in the indictment to which it is referred, that is counts 1, 3 and 4 is relevantly an offensive weapon.

19. With regard to the element of intention to intimidate or particularly commit an indictable offence, to wit intimidation, I note that in the Crimes Act where the offence of intimidation is referred to and in the Crime (Domestic and Personal Violence) Act, 2007 to which the word “intimidation” is referred and defined for the purposes of that Act, there are, it would seem slightly different definitions. As I would understand it the relevant definition of intimidation that I am concerned with is the intimidation defined in the latter Act as set out in the Crown’s written submissions. S 13 of that Act provides that a person “Intimidates another person with the intention of causing the other person to fear physical or mental harm where that person intends ‘cause fear or physical or mental harm, if he or she knows that the conduct is likely to cause fear in the other person’, the prosecution is not required to prove that the person alleged to have been intimidated actually feared physical or mental harm.

20. The word ‘intimidation’ also is further defined in s 7, of that Act where it states that the meaning of ‘intimidation’ includes “Conduct amounting to harassment or molestation of the person”, or “an approach made by the person by any means that causes a person to fear for his or her safety,” or “any conduct that causes a reasonable apprehension of injury to a person or persons with whom a person has a domestic relationship or of violence or damage to any person or property.” The court may have regard to a pattern of behaviour to be satisfied of intimidation having been committed.

21. It is clear that having regard to the character of this matter that parts of that definition obviously have no applicability here bearing in mind the accused had no relevant domestic relationship with the victim or the alleged victim and there is no relevant pattern of violence.

22. With relation to count 2, the alternative count to count 1, the prosecution must prove that the accused acted intentionally or recklessly causing another person to apprehend immediate and unlawful violence.

23. There are four elements which constitute an assault. They are, firstly, an act by an accused person which intentionally or recklessly causes another person to apprehend immediate and unlawful violence, secondly that such conduct was without the consent of the alleged victim, thirdly that such conduct was intentional or reckless in the sense that the accused realised that the complainant might fear that he or she would then and there be subject to immediate and unlawful violence and none the less went on and took the risk and, fourthly, that such conduct be without lawful excuse.

24. In relation to counts 3 and 4 they each commonly allege against the accused that he possessed a prohibited pistol. ‘Possession’ means in this context that the accused relevantly had intentional control or custody over the pistol. There is absolutely no dispute about the accused being in possession of the prohibited pistol, having regard to both the filmed evidence contained within the CCTV footage and of course the evidence of eye witnesses to relevant events contained within the statements that are tendered.

25. In relation to count 3 the Crown must prove that the accused was not authorised to possess the pistol by license or permit. There is no need to strictly define those words and I point out that within the Crown’s brief of evidence there is relevant certificates produced stating firstly that the pistol was not one for which the accused had any licence or permit that authorised his possession of it and also that the pistol itself was “unregistered”, which is a requirement to be established by the prosecution in relation to count 4 having established the accused’s possession of the relevant firearm.

26. There is in the circumstances of this case, having regard to the way in which the case has been conducted, little else that requires specific direction to myself upon. There are no particular warnings that I am required to give myself, although many of the witnesses are of course professional witnesses in the sense they are police officers so no issue arises as to their credibility in this case. I do not think it is a matter that requires any warning that might ordinarily be given where there is challenge to police evidence, such as set out by the High Court in cases such as McKinney and Judge.

27. With regard to the issue of mental illness as has been pointed out in the submissions of the parties the accused bears the burden of establishing on balance that he was relevantly mentally ill at the time of the alleged commission of the offences. In this regard I note the terms of s 38 Mental Health (Forensic Provisions) Act 1990. In essence what the defence must establish in relation to the relevant charge is that the accused was

“labouring under such a defective reason from disease of mind as not to know the quality and nature of the act that he was doing, or if he did know it that he did not know that what he was doing was wrong.”

28. This is the classic formulation of the decision of the House of Lords in R v McNaghten from 1843/4. Although the Mental Health (Forensic Provisions) Act, hereinafter referred to as “the Act”, does not give a definition of mental illness it is accepted that the McNaghten test is the test applicable to consideration of the operation of s 38. The section itself refers to a person who was mentally ill “so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made.

29. The section also states,

“If it appears to the jury before which the person is tried that the person did the act or made the omission charge but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness”.

30. Of course the references to “the jury” encompass a reference to a trial by “judge” as provided under the Criminal Procedure Act. 

31. By reference to what I have outlined there is in the elements of the charges with which I am concerned, particularly counts 1 and 2, a requirement by the court to consider, in respect of count 1, the element of intention required to be established by the prosecution. When one is referring to intent or intention one is not talking about a reasonable person or a test that involves any form of objective assessment. One is concerned with an examination of the state of mind of the accused and what the accused himself or herself in the appropriate case desired or wished to achieve or gain by the relevant actions.

32. In this matter there was an “agreed facts on sentence” as it was stated although that would appear to me to be a statement of the relevant purpose of the document, setting out a summary of what is clearly shown in the various statements that have been provided in the bundle to the court.

33. I propose largely to rely upon that agreed “statement” but I need to refer to some additional material that emerges from the bundles of documents produced, having regard to some of the issues that were foreshadowed at the commencement of this trial and have concluded the trial in the submissions of the respective parties. I note amongst the statements prepared and tendered in this court without objection there are three statements from what might be called civilians who were present as is clearly the case from the CCTV footage. I viewed the CCTV footage that is part of the Crown bundle.

34. There are also a number of statements from relevant witnesses including Constable Driscoll, the victim of the accused’s actions, who particularises at paragraphs 8 to 12 specific events at the heart of, particularly the allegations in counts 1 and 2, but also obviously of relevance to counts 3 and 4. There are statements from a number of other constables of police who came upon the scene that is shown in the CCTV footage, almost immediately after the accused had thrown the firearm to the floor. There are the police who were involved in the subduing of the accused, police who conducted an interview with the accused which is part of the tender, the transcript acting as an aide memoir. There are police who attended upon Concord Hospital in relation to requests for an assessment of an alleged mentally ill or mentally disturbed person.

35. There is the statement from the Custody Manager and some records produced by him. There is the opinion expressed by Senior Constable Andretti, concerning his examination of the firearm, his opinion that it is a prohibited pistol in accordance with s 4C Firearm’s Act 1996. There was some evidence concerning a search of the accused’s residence after his apprehension which ultimately revealed the identification of a crystalline substance later assessed to be 0.19 grams of methylamphetamine. There are statements from Dr Russell Cook and Sister Beverley Conlan who treated the accused at Concord Hospital after he had come into custody of police. Certificates from the Commission of Police as I said earlier that the accused was not licensed to possess a pistol or a firearm, nor was the relevant firearm registered as is required.

36. Finally there is the evidence from Dr Bruce Westmore, who had been retained by the defence to assess the accused’s relevant mental state, a report from a psychologist Anna Robilliard and a report in reply to the reports of Ms Robilliard and Dr Westmore prepared by Dr Stephen Allnutt.

37. From this material emerge the following matters. The accused came to the Belmore Police Station on Monday 5 August at 6.14 pm. He entered the police station and walked into the foyer area. There were at that time a number of members of the public present. Police were variously going about their duties assisting those citizens with their inquiries. He paced around the foyer area and was holding in his hand a black “revolver pistol” which is the relevant firearm particularised in counts 1, 3 and 4. He purchased a can of soft drink from a vending machine and variously can be seen in particular positions around the foyer area.

38. At about 6.20 pm Constable Peter Driscoll exited a door directly to the right of where the offender was located. Constable Driscoll was a general duties officer, he was in full police uniform, there could be no mistaking the fact that he was relevantly in the process of that evening going about fulfilling his lawful duties.

39. When Mr Driscoll came through the doorway and entered the foyer area as the CCTV footage makes clear, the accused without warning raised his right hand holding the black revolver by the stock and pointing it directly at the chest area of Constable Driscoll. Constable Driscoll spoke of hearing a clicking sound as the accused was pulling the trigger over and over. I point out as it transpired of course the firearm was not relevantly loaded.

40. Mr Driscoll was standing approximately a metre to the right of the offender and he said in his statement that he felt “ambushed” and “confused” about what was happening. He reached down to his hip where one can see on the film his police issued firearm was located in a holster. He stepped backwards behind the open door and pulled the door almost closed, as he stepped away and out of sight of the accused, the accused still had the revolver held by his hand with his arm out straight and according to Constable Driscoll pulling the trigger. The aiming of the firearm at the direction of the police officer is confirmed by at least one of the civilians present, Young Cha. When Constable Driscoll had his firearm out, as is stated in his statement, he retreated with serious concerns for his safety and the safety of members of public in the foyer. The door was pulled almost closed for a relatively short period of time. I have not counted it on the CCTV clock but it would appear to me to be closed for a period of at least five seconds. The accused when the door was pulled to, threw the gun down on the ground, a matter about which Mr Driscoll might not have been immediately aware.

41. Mr Driscoll in his statement said that he said words to the accused at one point and it is not clear when these were said having viewed the film “Are you serious?” And he said the accused replied “Yeah, yeah”. This account is supported by one of the civilians. The statement of facts suggest that in fact these words were said by Mr Driscoll as he retreated through the door away from the reception area into the secure area of the police station. It must be said the confrontation between the accused and Mr Driscoll where the gun was pointed at him could not have been more than ten seconds and perhaps was shorter. Again I did not take the liberty to time it from the timing device on the close circuit television. Mr Driscoll called out saying words “Gun, guys, gun in the foyer,” obviously alerting his colleagues that there was an armed man in the foyer. By the time he burst back into the public area, very bravely it has to be fairly said, to confront the accused he had thrown the revolver away. Mr Driscoll said he in fact saw the revolver travel through the air and heard the sound of metal contacting or sliding along the tiled floor but again he would have heard and seen this as he was making his way back into the room, he had little time to react.

30. The statement goes on to say that Mr Driscoll and other police officers entered the foyer, the accused was pulled to the ground and I have seen him subdued by the police. One can see Constable Driscoll picking up the relevant firearm from the ground. He was wearing gloves at this time and the firearm was rendered secure although the firearm had empty chambers. As I have earlier said there is clear evidence of the status of the firearm both by reference to its description as a pistol or revolver and also its status as an unregistered firearm for which the accused was unlicensed to possess.

31. The accused was taken into the care of the custody manager and assessed. He made admissions about having smoked methylamphetamine previously that day. He said that he had a small amount at his premises which was confirmed by subsequent police search at his unit at Elsie Street, Burwood. The facts state that the drug was weighed and registered a weight of .56 grams. The certificate says something different. I do not think a great deal turns upon this.

32. The accused gave an electronically recorded interview. I have read the transcript of that and I have tried to view it. I viewed some of it watching the reactions of the accused but could barely hear what was said. But no issues taken by the parties that I cannot hear clearly what the accused or the interviewing officer said.

33. The accused gave an account that is not consistent with the objective facts, but this is a matter really of no moment given other evidence as to his state of mind at the relevant time. He told the police that he had taken possession of the gun with the intention of surrendering it. He said he had no intention of hurting anybody. He said that he had obtained the gun from a friend which I understood lived at Auburn. He smoked an amount of Ice or methylamphetamine after he had taken possession of the gun. He said he walked around the Burwood central business district in possession of the gun, openly showing members of the public. He said that he caught a taxi from Dean Street in Burwood to the police station which is a distance of a mere four hundred metres according to the statement of facts. He said that he had shown the taxi driver the firearm. He said the he knew that the firearm was not loaded. He said that while in the police station he was waiting to be served and he tried to call Triple-0 but he could not get through to the police. Whether that is so or not, I do note that from a film of him that it were one point particularly, shortly before the victim came into the foyer, the accused was either speaking or waiting to speak on his mobile phone. He denied that he intended to threaten the police and he made other statements which reflected some bizarre thinking at the time of the interview.

34. The accused’s mobile phone was accessed with the assistance of the interpreter who was present during the interview. There were bizarre text messages obviously recorded by the accused, amongst other things saying “kill the government”.... “benefit the common people, common civilians”. “You take it along and then kill, kill” and, “No one come, I’m claiming the honour all by myself.”

35. The accused was ultimately conveyed to Concord Hospital for a mental health assessment. It was clear from the character of the interview with the accused, his behaviour in the foyer observed on the CCTV footage the observation of him by the uniformed police officers and the observation of him through the course of the electronic interview, that he was ”mentally disturbed”.

36. The accused was held at the Concord Hospital for a period of some days. In relation to his treatment at the Concord Hospital I have a statement from Dr Cook, he saw the accused on 12 August 2013 having been brought in in the early hours of 6 August 2013. He could not give a coherent account of his behaviour on admission. He had grandiose delusions at that time saying that he was “the leader”. He reported auditory hallucinations and he was thought disordered. He admitted to regular use of methylamphetamine as it is described in the statement. He had a poor insight into his conduct. He improved significantly with medication and discharged back to the police on 12 August.

37. The opinion of Dr Cook was the accused had “psychosis in the context of chronic methylamphetamine use” and it was recommended that he continue to take the medication Olanzapine. I also have a report from Ms Conlan a registered nurse who saw the accused on 12 August. According to her statement she reported he was suffering from “drug induced psychosis”.

38. The accused was seen, firstly as I understand the chronology of events, by Ms Robilliard who took some history of him when she interviewed him on 5 February 2014. I note the various histories the accused has given which I need not read onto the record. He had only a scattered recollection of events surrounding his initial treatment. His account of how he came into possession of the gun and why he would take it to the police station made it difficult for the psychologist to identify from his account any particular motivation. She formed an opinion that the matter needed to be progressed by Justice Health records, being assessed given his history of drug use. She thought that much of what he said during their interview seemed “delusional” but he did not present in a condition that suggested he was substance affected. She thought there might be a dual aetiology of mental illness and substance dependence.

39. That led to the accused being seen by Dr Bruce Westmore a respected forensic psychiatrist retained by both the Crown and the defence from time to time, over the last 30 years from my experience. The accused was seen by Dr Westmore on 9 March 2014. He took, as I said in relation to the psychologist, a history. He noted on presentation that the accused was neat and tidy, pleasant and cooperative, maintained good eye contact, spoke mainly in response to questions and then reasonably expansively, his mood and affect were both intense and restricted, but generally appropriate and he could demonstrate some limited “smiling behaviour”. He did not have a major depressive disorder and he denied having any type of psychotic symptoms at the time of interview.

40. He went through the available records available to him including records of the accused reporting on 6 August that he believe that there was a government conspiracy against him because he believed his “friend is the lead of it all”. He verbalised delusional ideation on 6 August 2013.

41. A medical assessment completed by a Psychiatric Registrar on that date offered the view that he probably suffered a drug induced psychosis and a further assessment of him on 8 August 2013 diagnosed him as suffering from a “amphetamine psychosis (schizophreniform)”. Another assessment was made by another psychiatrist on that date coming to the same conclusion. On 8 August the accused was still delusional but not thought disordered. He was diagnosed on 12 August by some other medical practitioner as suffering from a “paranoid psychosis”.

42. There were forms filled in as required under the Mental Health regulation noting that the accused suffered numerous persecutory and grandiose ideas. He needed containment and treatment to prevent harm to others at that point and he was considered under the “Act” as being “currently a mentally ill person”. There are other nursing entries that he took into account.

43. His diagnosis was: “My provisional diagnosis is that Mr Zhang suffered a drug induced psychosis at the time of the offending behaviour that condition currently appears to be in remission”. A secondary Axis 1 diagnosis was “poly-substance abuse (currently in remission)”. He deferred any opinion in relation to his personality and he made other observations about him that I need not concern myself with.

44. Noting all that was available to him he said in his report, in his final opinion of the matter:

“Based on this information Mr Zhang was, on the balance of probability, suffering from an acute episode of drug induced psychosis at the time the offending behaviour occurred. His behaviour appears to have been impulsive and to some extent disorganised. While there appears to be some inconsistency in the history that he took the gun into the police station intending to hand it over to the police his reported statements while at the police station appear to be bizarre and reflect his acute drug induced mental illness at that particular time.”

57. He went on to say:

“Mr Zhang could raise a mental illness defence in relation to the matters now before the court doing so on the basis that at the time the incident occurred he was suffering from an acute drug induced drug induced psychotic illness. That illness would have deprived him of the capacity to know his actions were wrong, certainly from a moral perspective and his mental illness would have prevented him from considering his actions in a rational and composed way.”

58. He said further,

“Whilst there does appear to be a transient quality to his psychotic illness, at least in terms of the most acute symptoms it will be essential that Mr Zhang remain in complete sobriety from all illicit drugs as further use of illicit drug is likely to precipitate a further acute psychotic illness in this man.”

59. Dr Westmore’s report is somewhat silent as to the aetiology of the of the condition the accused presented himself in at the time of his presence at the Burwood Police Station.

60. That issue is addressed in a greater detail by Dr Allnutt who was retained by the Crown and reported by report of 22 May 2014, he goes through matters of history. He notes the accused is fit to be tried. He said so far as his psychiatric diagnosis was concerned:

“In my opinion he manifests ongoing symptoms consistent with delusional beliefs of a persecutory and grandiose nature. He believes that there is an ongoing fight in relation to the government involving a person named Jackie who he believes is his adopted father. He continued to believe that cameras were monitoring him. The symptoms appear to have ameliorated somewhat since the alleged offending but persist never the less. In the absence of auditory phenomena and referential ideas a differential diagnosis would include delusional disorder and paranoid schizophrenia along with drug induced psychosis. It is difficult to clarify a diagnosis because methylamphetamines can induce a psychosis that can present in a very similar way to schizophrenia and methylamphetamine - induced psychosis tends to last longer. It remains therefore unclear whether or not he continues to present with a drug induced psychosis or if in fact he has an underlying paranoid schizophrenia. Not-withstanding this the persistence of his psychotic symptoms remains a significant vulnerability.”

61. Reflecting upon his processes of thought and mental state at the time of the alleged offending he said:

“I believe that the defendant would be regarded as suffering ‘a disease of the mind’ at the material time that the alleged offending occurred. That is that he was manifesting active symptoms of a psychosis in the form of persecutory and grandiose delusional beliefs (believing that there was some form of argument or battle between two people that related to the government which involved him but provably also involved testing him to become “the boss of New South Wales”). He was also thought disordered and thus his thinking process was likely disorganised”.

62. He said it was difficult to provide a complete understanding of his thought processes given the way in which he produced relevant information. He said psychotic symptoms eight months after the alleged offence and the absence of evidence of ongoing substance abuse is suggestive of a persistent rather than a transient mental state and he would regard this as being “a disease of the mind”. He was incapable of reality testing. It was said that his motive was derived from this irrational thought process which resulted in highly unusual behaviour that put himself and others at serious risk of harm.

63. The doctor said:

“In my view as a consequence of his “disease of the mind” (thought disorder and delusional belief system) he would have been incapable of reasoning about the matter with a moderate degree of sense or composure about (his) behaviour at the material time having regard to the commonly held standards. While he might have been aware of the illegality of his actions - he knew that he would be arrested and sent to gaol - his moral capacity was compromised by delusional beliefs and irrational reasoning processes.

On this basis I believe he has available to him a defence of mental illness.”

64. I have been favoured by the learned Crown Prosecutor’s helpful written submissions which address the legal issues arising in respect of the issue of proving the element of intimidation as it is required to be established as being the accused’s intent and his actions in respect of count 1. The Crown’s helpful written submissions also deal with the provisions under the Mental Health (Forensic Provisions) Act 1990 particularly Part 4, sections 37 to 39, s 38, as I earlier indicated being concerned with the special verdict of mental illness. There are other submissions made in relation to the issue of disposition, the Crown’s oral submissions briefly are that the court would be satisfied at least that the elements in relation to count 2 were made out, but does submit the court could be satisfied beyond reasonable doubt that the elements that are required to be proven in relation to count 1 may be made out. It submits that the elements in relation to counts 3 and 4 are clearly made out. It submits, however, that the defence on balance having regard to the totality of the medical evidence, including the contemporary observations of the accused by both lay people and medically qualified people, has established the defence of mental illness in relation to relevant charges.

65. In respect of the helpful submissions of learned counsel for the accused, his written outline addresses, firstly, the question of whether the Crown has established the appropriate elements to be established in respect of count 1. It notes in the written submissions the description of the demeanour of the accused, including a reference to him “appearing quite blank” as appears in one of the civilian statements, the various bizarre statements made by the accused during his arrest, messages contained within his text message memory on his mobile phone, the opinions of those who saw him on the evening of 5 August and the early morning of 6 August appearing to be “mentally ill” or requiring police to invoke powers under the relevant legislation for dealing with mentally ill people. He relies upon the assessments of Dr Westmore, Dr Allnutt and Ms Robilliard.

66. The defence submits that even if the accused’s onus to establish a relevant defence of mental illness failed, the court would not be satisfied beyond reasonable doubt that the accused was guilty of count 1, that the accused acted with the relevant intent or with the relevant recklessness required to be established to intimidate or to commit the offence of intimidation in respect of the victim. It also submits that the surrounding circumstances of the offending do no establish the relevant intention that the Crown would be required to establish in relation to that count.

67. I have given very close consideration naturally to the issue of what elements are established by the Crown in respect of the matters requiring proof by it. I can deal with counts 3 and 4 very quickly indeed. It is quite clear that the Crown has established beyond reasonable doubt the possession of the prohibited pistol relevantly in each count and that it was relevantly unregistered as required in relation to count 4. I should say that the accused did not have the relevant licence or permit to possess the firearm. In respect of count 1 the features of the matter that I note in relation to the case from all the material available to me is that firstly the accused, as I would understand, it was not known to the complainant. They had had no particular dealings together. Even though the accused was delusional, I note his explanations for taking the firearm to the police station the bizarre conduct of the accused in exposing the firearm in the public area. It is clear that he pointed the firearm at the police officer and I accept the police officer’s evidence of what he said and what the accused said at that time that the complainant was exposed to the presentation of the firearm. I note that the firearm was unloaded. The accused has claimed that he knew that it was unloaded at the relevant time.

68. The period of presentation of the firearm was a matter of some seconds. The accused was pulling the trigger of the firearm giving a clicking noise, it was self-evidently, at least on an objective basis with the wisdom of hindsight I hasten to say, clear that the firearm was unloaded, given the fact that if the accused was in fact pulling the trigger and nothing was happening by way of discharge. I note as soon as the police officer retreated, after a very short period of time of being exposed to the firearm, the accused threw the firearm away and at the time of being subdued was unarmed.

69. Noting what was put by the defence in relation to matters pertinent to his state of mind at that time, his motivation for doing what he claimed he did, his lack of relationship with the victim and noting as I have said earlier what the relevant elements are of proof of guilt of this particular charge, I am not satisfied beyond reasonable doubt that the accused on the facts of the case had an intent to commit an indictable offence, namely intimidation by his actions.

70. However, I am satisfied that the accused assaulted the police officer, even making allowance for his claimed motivations, but noting what might be inferred to as relevant to the proof of intent in the charge set out in count 2. From his actions in presenting the firearm and putting the victim in fear of safety, as his retreat itself eloquently establishes, this count is established.

71. There is a fine line between the different offences, it must be fairly said, when one examines the elements of intimidation and the elements of assault. But particularly compelling in the context of what is required to be established beyond reasonable doubt in respect of count 1 is, as I said earlier, the character of the relationship, if it could be called that, of the accused with his victim at the time of his actions occurring over a relatively brief time. Certainly the nexus and time is sufficient to establish the elements required in respect of count 2, but not ultimately in respect of count 1.

72. The having been said on the basis of the totality of the material and primarily the last view of the matter of Dr Allnutt, I am satisfied on the balance of probabilities that the defence of mental illness has been made out in respect of the remaining counts the relevant elements of those counts having been established by the Crown. I am satisfied that the accused did not know that what he was doing was wrong. I am satisfied that there was a relevant disease of the mind which produced the relevant defect of reason.

73. The law requires that the accused state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or of long standing, whether curable or incurable. Such condition may have been caused by some physical deterioration of the brain cells but need not necessarily be so caused. It may arise from some mental malfunction with no apparent organic basis or where the cause of the disease may be unknown, provided in all cases that it results in the function of the reason, memory or understanding being thrown into a state of derangement or disorder. The distinction is to be drawn between a defence of reason from an underlying mental illness, as distinct from a reaction of a healthy mind to some extraordinary, external factor, that is transient, that is passing, and not prone to reoccur. A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing that what he was doing was wrong but wrong according to the ordinary standards of reasonable people in our community or because he did not know the physical nature or quality of the act that he was performing. It is the former that has been established on the balance not the latter. Thus in those circumstances I have entered the special verdicts in respect of the three counts that I have identified.

64. I have gone to some length into the material that is available because of the need, in light of the verdicts, for the Mental Health Tribunal to review this matter. It would not have been appropriate for me simply to deal with the medical reports in a cursory nature.

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Decision last updated: 27 May 2015