Tasmania v Fowles

[2024] TASSC 68

[2024] TASSC 68

COURT:	SUPREME COURT OF TASMANIA
CITATION:	State of Tasmania v Fowles [2024] TASSC 68
PARTIES:	STATE OF TASMANIA
v
FOWLES, Kurtis John
FILE NO:	89/2024
DELIVERED ON:	21 November 2024
DELIVERED AT:	Burnie
HEARING DATES:	15-18 October 2024
JUDGMENT OF:	Jago J
CATCHWORDS:

Criminal Law – Procedure – Trial had before judge without jury – Generally – Accused charged with two counts of attempted murder contrary to ss 299 and 158 of the Criminal Code 1924 – Defence of insanity

Aust Dig Criminal Law [3164]

Criminal Code Act 1924 (Tas) ss 16, 299 and 158

R v Porter [1933] HCA 1, [1936] 55 CLR 182; R v Falconer (1990) 171 CLR 30, followed.

REPRESENTATION:

Counsel:

Prosecution:	P Sherriff
Defence:	G Richardson

Solicitors:

Prosecution:  Director of Public Prosecutions

Judgment Number:	[2024] TASSC 68
Number of paragraphs:	95

Serial No 68/2024

File No 89/2024

STATE OF TASMANIA v KURTIS JOHN FOWLES

REASONS FOR JUDGMENT JAGO J
21 November 2024

1 The accused is charged on indictment with two counts of attempting to commit murder, contrary to ss 299 and 158 of the Criminal Code Act 1924. He has entered a plea of not guilty to each charge. In accordance with an order made by me, pursuant to s 361AA of the Criminal Code, I conducted the trial as a single judge in place of a trial by jury.

Presumption of innocence and burden of proof

2             The accused is entitled to the presumption of innocence. Accordingly, he is presumed to be innocent of these crime unless and until I am satisfied beyond reasonable doubt as to his guilt. The prosecution has the burden of proving the guilt of the accused beyond reasonable doubt.

3             In this case, it is accepted by both the prosecution and defence that, if the acts which constitute the crimes of attempted murder are proved, the question arises as to whether Mr Fowles is criminally responsible for those acts by reason of mental disease: Criminal Code, s 16.

4             He is presumed to have been of sound mind at the time he committed the relevant acts, unless the contrary is proved: Criminal Code, s 15. He bears the onus of establishing that he is not criminally responsible on the ground of insanity, although the onus may be discharged on the basis of evidence presented by the prosecution: Criminal Code, s 381. The standard of proof is on the balance of probabilities: Evidence Act 2001, s 141(2).

The charged crimes

5             The indictment alleges that the accused, on 29 July 2022, attempted to murder Oliver Christopher Triffett by stabbing him in the neck on two separate, but close in time, occasions. Both acts are alleged to have occurred in the early hours of the morning on 29 July 2022 at the home where both Mr Triffett and the accused lived. The evidence establishes Mr Triffett and the accused were both close friends and house mates.

6             There is very little dispute in this case as to the physical acts committed by the accused. Evidence was called on the prosecution case from a number of witnesses. There was little challenge to the evidence the respective witnesses gave, and there was a general consistency about the evidence in terms of family and friends who described the accused's demeanour and presentation in the weeks and days leading up to the alleged incident. I do not intend to canvas the entirety of the evidence in these reasons. I will summarise the evidence that I accept and which I found to be the most useful in determining my verdict. It is as follows.

Oliver Triffett

7             Mr Triffett gave evidence that as of 29 July 2022, he was living at 102 George Street in Devonport with the accused. They had lived there for approximately five months. Mr Triffett and the accused were good friends. They had known each other for about seven years. Mr Triffett was a fly in/fly out worker. He would work in Western Australia for a two-week rotation, then return to Devonport for two weeks. He returned to Devonport on Friday, 22 July 2022, a week before the alleged incident.

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8             Mr Triffett gave evidence that when he returned home on 22 July, he noticed that the accused "wasn't in a great mood". He said he became aware that the accused had broken up with his partner, a Ms Hannah Elbourne, shortly before his return home. On Saturday 23 July, he invited the accused to accompany him to his partner's place (Jess Humphries) because he became aware Ms Elbourne was having a birthday celebration that evening and the accused was not invited. The accused was upset about it.

9            He said over the next few days he noticed that the accused was not going to work very often. He thought this was unusual as the accused usually worked seven days a week.

10           Mr Triffett gave evidence that on Thursday, 28 July 2022, a mutual friend of his and the accused, Ryan Males, came to the residence, and he had a discussion with him about the accused's mental health. Mr Triffett said that he and Mr Males were so concerned about the accused's mental health that they discussed "putting him into Spencer Hospital" because they believed there was a real risk of self-harm.

11           On the evening of Thursday, 28 July 2022, Mr Triffett gave evidence that he returned to the house at approximately 7.00pm. The accused was home. The accused told him that he wanted to have an early night and went to his room. He described the accused as being "lost in thought, yeah, he was quiet, lost in his own thoughts and just wasn't himself." At approximately 7.30-8.00pm, another mutual friend, a Liam McKenna, arrived. Mr McKenna told Mr Triffett that he was there to "check up on" the accused because he "didn't seem to be himself." He said Mr McKenna was at his house for approximately 20 minutes and during that time the accused stayed in his room.

12           After dinner, Mr Triffett put his headphones on and sat on the couch, listening to music and scrolling on his phone. He fell asleep. Sometime later he woke up, still on the couch, and observed the accused in the lounge room/living room area. The accused had over the ear headphones on and was pacing about. Mr Triffett said something to the accused, but he could not recall whether he received a response. He described the accused as appearing as if he was "away with the fairies."

13           Mr Triffett got up from the couch and went to his bedroom. He put his phone onto a charger that was in his bedroom. Shortly after, he said the accused came into his bedroom and said that he did not want to be alone. He climbed onto the bed next to Mr Triffett. Mr Triffett said the accused had his headphones around his neck at this point. Mr Triffett laid down and tried to go to sleep. Shortly after, he felt the accused climb over him and leave the room before returning. He then heard his phone beeping in the kitchen. He got out of bed and retrieved his phone from the kitchen bench and returned to the bedroom and put it back on the charger. He laid down and tried to go back to sleep. The accused was still sitting beside him on the bed.

14           Mr Triffett woke up to the accused over the top of him. He had a knife in his hand and was trying to stab him. He described the knife as a blue handled pocketknife, about 10 centimetres in length, with a blade of an equivalent length. Mr Triffett said he felt an impact to his neck. He described the accused's forearms coming across his throat and his temple, and he said the blow felt like he had been "king hit in my sleep". He said he grabbed hold of the accused and flipped him onto the floor. He got up out of the bed and went into the lounge room. At that point, he put his hand to his neck because he was in pain. When he pulled his hand away, he realised he was bleeding.

15           Mr Triffett said that whilst he was in the loungeroom, the accused came into the archway area that divides the lounge room from the living/dining room. He observed the accused to have his headphones around his neck. Mr Triffett asked him what was going on? The accused said, "It was the podcast – the podcast made him done [sic] it". Mr Triffett responded by asking, "What shit have you been listening to?". The accused again said, "It was just the podcast made him done [sic] it".

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16           Mr Triffett moved to the bathroom area to treat his injury. He turned the lights on and took his jumper and shirt off. He was at the sink, cleaning his neck when the accused entered the bathroom. The accused said, "Did I get you?" Mr Triffett responded by saying, "Of course you got me". Mr Triffett was continuing to clean the blood from his neck when the accused stabbed him in the back of his neck. Mr Triffett described feeling the "thud in the back of my neck". He then reached around to the back of his neck and felt the knife. Mr Triffett said he had the sensation of pain in his neck. He said he observed the accused and he was still wearing headphones.

17           Mr Triffett pulled the knife from his neck and blood began to flow freely from the wound. He said at that point, he dropped the knife and realised that he was "not in a good way". He walked out of the bathroom, into the hallway. At this point, he again saw Mr Fowles. He still had headphones over his ears. He said he threw a punch and a knee at Mr Fowles and pushed him into the wall of the house. Mr Fowles offered no resistance. Mr Triffett left the residence.

18          Mr Triffett said as he departed the residence, he noticed that the charger cord to his phone was laying outside of his room in the hallway.

19           Mr Triffett gave evidence of leaving the house and attending at 103 George Street. That was the home of Mr Lochlan Cooper. Mr Cooper gave evidence on the trial. I do not consider it necessary to go into his evidence in detail. It is sufficient to say he provided first aid to Mr Triffett and assisted him by applying pressure to the wounds until paramedics arrived. There was no contest as to any of his evidence.

Evidence of attending paramedics

20           Tasmania Ambulance and police arrived at 103 George Street. Evidence was given by the attending paramedic, Mr Fisher. He gave evidence of observing injuries to Mr Triffett. He observed two stab wounds, one to the front of the neck and one to the right lateral side of the neck. Both wounds were bleeding. Both wounds were treated with bandages. Mr Fisher gave evidence that the blood from the wound on the right lateral side came through the dressing very quickly, causing him to believe that the injury was quite serious. He described the injury to the front of the neck as being approximately two centimetres in length. The area in which the stab wound was inflicted was potentially dangerous because, if the wound had penetrated the trachea, it could lead to difficulties in breathing. His assessment was that the airways had not been affected.

21           As to the second wound, he described that as a horizontal wound of about the same parameters. He said it was bleeding more than the wound to the front of the neck, and he was concerned about it because that area of the neck has some "bigger arteries and veins". He was concerned about blood loss and potential damage to a major structure so arranged for the transfer of Mr Triffett to hospital. Mr Fisher offered the opinion that if not treated, this wound had the capacity to cause death.

22   Mr Fisher travelled with his patient to the Launceston General Hospital.

Evidence of attending police officers

23           Evidence was given from Sergeant Robert Woodrow. He attended at 103 George Street at approximately 6.38am on 29 July 2022. When he arrived, he observed Mr Triffett lying in the doorway, injured and with wounds to his neck. He received information that the alleged offender was at 102 George Street. He attended at that residence. Body worn camera footage of the interaction at 102 George Street was tendered on the trial. It depicted officers endeavouring to raise the occupant of 102 George Street. Doors and windows were knocked upon. Eventually, the front door was answered by the accused. He had an apparent injury to his neck, which was bleeding. He presented as lethargic and disorientated. Police officers directed him to the loungeroom and assisted him with his injuries

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until ambulance personnel arrived. During interactions with police the accused was compliant. He spoke to police about what had occurred. At times it was difficult to understand his responses. Some appeared nonsensical. At one point he said to police there had been an argument about a girl. Sergeant Woodrow gave evidence that whilst assisting the accused with his injuries, he observed a hole in his t-shirt. When he lifted it, there was a puncture wound over his heart area and another one to the right side of his chest.

24           Constable Patrick Roberts gave evidence of attending upon the accused at the Mersey Hospital whilst he was awaiting transportation to Hobart. He spoke to the accused for approximately 10-15 minutes whilst he was in a bed in the emergency department. His body worn camera was activated during that conversation. The body worn camera footage was tendered on the trial. In it, the accused said some peculiar things. Some of what he said was difficult to understand. He told police he had "all these voices coming to me"; that he "couldn't sleep"; that he had been listening to a podcast and it just kept "feeding and feeding me"; that "he had no control over it"; that he did not know what was happening, he had not been himself; that he "could not control my brain, it just kept going and going…for hours and hours"; that he "had been caught in a loop for so long…I couldn't snap out of it"; that he "couldn't escape the thoughts, I'd go back there"; that "I felt like I was being controlled…he'd tell me like yeah fucking like I was gay or something like that…like all these different changes"; "my head was just fucked". In my assessment, the behaviour the accused displayed on the body worn camera footage was entirely consistent with him having experienced, and was continuing to experience, a significant mental health event.

Ryan Males

25           He gave evidence of being a friend of both Mr Triffett and the accused. He said he spent time with both on a regular basis. He gave evidence of observations he had made about the accused in the week or so leading up to the events of 29 July 2022. He said that around that time, he came to learn that the relationship between the accused and his partner had ended. He spoke to the accused about that. The accused appeared "very distressed and in his own head, and not himself…he was speaking, talking in circles a little bit, very just unsure".

26           He said he attended the home of the accused and Mr Triffett on Thursday, 28 July 2022. He arrived at about 9.30/10.00am. He was planning to do some gardening work. When he arrived, Mr Triffett was there, but Mr Fowles was apparently asleep in bed. He had a conversation with Mr Triffett about the accused's mental health. He said he was concerned about him. He said he did not see the accused until about approximately 11.00/11.30 am. He said that when he saw him, he was "not himself, just no one, just not there...Just oblivious to the world in a sense". He said when he spoke to him, he did not get any responses that made a lot of sense. He said at one point when he was cutting the edges of the grass, the accused appeared in front of him and he looked "dumbfounded and had a confused look on his face".

27           Mr Males also gave evidence of receiving some messages from the accused later that day. He described the messages as "seeming a bit odd, wasn't really making a lot of sense". Consequently, Mr Males invited the accused to his house for dinner. The accused declined and said he did not want to come for dinner because he "wasn't himself".

28           Mr Males said he decided to return to the accused's home later that same evening to check on him. When he arrived, the accused was in the kitchen. He had a conversation with the accused. He said the accused told him about "a blood blister or some sort of thing on his forehead… that he was 100 percent convinced he had been cursed". Mr Males said he offered to take a photograph of the mark and send it to his aunty, who was a nurse, to obtain some medical advice. The accused did not want him to do that.

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29           Mr Males said during the conversation he had with the accused, the accused was "uttering, the sentences were incomplete, and it was hard to decipher what he meant…the words were all sort of jumbled". Mr Males said he left the residence about 7.30pm.

Jessica Humphries

30           Ms Humphries was the partner of Mr Triffett at the relevant time. She gave evidence of a social occasion she shared with Mr Triffett and the accused on Saturday 23 July. She thought the accused was his normal self then. She said the following Wednesday evening, Mr Fowles arrived at her home. She had COVID and was isolating. Mr Fowles said that he needed somebody to talk to. He came inside. She said that she tried to ask Mr Fowles what was wrong, but "never really got a clear answer from him".

31           She described him as being unable to put together proper sentences. She said that he appeared to be "on edge, just frantic pacing". She also recalled him saying something to her about her cat "acting weird". She said he left after about half an hour.

32           Ms Humphries also gave evidence on receiving a series of messages, via social media, from the accused, that night and into the early hours of Thursday, 28 July 2022. She said one of those messages was "sorry, I'm not well Jess".

Hannah Elbourne

33          Ms Elbourne gave evidence she was in a relationship with the accused between January 2019 and January 2020, and then again from about February 2022 until the incident, although she agreed the relationship was having difficulties in the weeks leading up to the incident. There had been a recent trip to Hobart that had involved many arguments.

34           She described some behaviours the accused had exhibited during the relationship. She said that during the first part of their relationship the accused had told her that he believed that she and her son had special powers and that her son could talk to animals. She said after the relationship resumed in February 2022, he would reference the concept of everyone being gods, that people were "linked in the stars" and refer to star signs and say that is why they were meant to be together. She said, "he would go on rants about theories…that were absurd to me."

35           Ms Elbourne gave evidence of visiting the accused on 23 July to collect her birthday presents. She described him as "he wasn't his normal self". She said he gave her a card in which he asked her did she want to be his partner? She told him she "couldn't give him an answer right now".

Kurtis Fowles

36           The accused gave evidence. He gave evidence as to his schooling and employment history. I do not consider it necessary to refer to that. The prior convictions of the accused were tendered. They indicate that he has never been convicted of a crime or offence involving violence. He has a minimal criminal history involving driving offences.

37           He gave evidence as to his mental health. He said when he was about 17, he was diagnosed with severe anxiety and mild depression. He was medicated for those conditions. He described an incident in January 2022, when he suffered from a psychosis. He said that he began receiving "thoughts in his head about royal gods and a lot of religious beliefs, and a sense that he could live forever". He said it became all-consuming and that he began looking into mythologies and "looking for answers". He described the episode as lasting for about three days and said that he did not sleep at all during those three days. It eventually came to an end when he did fall asleep.

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38           He also described a second episode of psychosis around Easter 2022. He said that his grandfather had passed away on the Good Friday. He came to believe that his grandfather may be Jesus and that he was "convinced as to that". He described his mind as being "crowded" with beliefs about mythology and religion. He said that period of psychosis lasted for five or six days and, again, he could not sleep but eventually "wound down and went to sleep".

39   He said that he did not seek medical treatment in respect to either of these episodes of

psychosis.

40          As to events of 29 July 2022, the accused said that he and Mr Triffett were "best mates…like brothers really" and there had never been an argument between the two of them.

41           He gave evidence as to his relationship with Hannah Elbourne. He said he had been in a relationship with her between January 2019 and January 2020. They then separated, before resuming the relationship in the first half of 2022, for a period of about six months. He said it was his understanding that as of 29 July 2022, the relationship had come to an end. I pause to note that whilst there may be a slight variation in the evidence of the accused and the evidence of Ms Elbourne as to the relationship status, in my view, nothing turns on that. On either account, the relationship was struggling in the week leading up to 29 July 2022. Both gave evidence that the weekend to Hobart had involved many arguments and was not a happy occasion.

42           People's perception as to the status of a relationship can vary considerably. Even on Ms Elbourne's account, the accused had given her a card in which he had asked whether she wanted to be his partner. She had said she could not give him an answer. She had not communicated a positive answer to the accused between receipt of the card and 29 July. It is reasonable for the accused to consider the relationship was at an end, even if Ms Elbourne was of the view that she was still contemplating its future.

43           The accused described that he was "pretty broken" over the end of the relationship. He recounted going to the home of Ms Humphries, with Mr Triffett, on the evening of Saturday 23 July. He said the following day he began to experience odd thoughts. He said that it was "the same thing from the previous two times". He said he had a Bible in his room that had been given to him, and he started reading through it and was experiencing some odd religious beliefs, such as his father was Adam. He said he focused on the Book of John because his middle name was John. He said he was trying to "make connections" and was "looking for answers".

44           The accused described that in the week leading up to 29 July 2022, he barely worked. He also said he was eating nothing, did not sleep and his self-care became non-existent. He did not shower. He said that he was experiencing bizarre thoughts all that week. He gave examples. He said that he believed there must be some sort of code in the fact that he and Ms Humphries had birthdays that were one day, one month and one year apart. He believed that it was representative of "angel numbers" which were opposite to the "devil's number". He thought that the number represented by the variation in the birthdays between he and Ms Humphries was representative of "the gods".

45           He said that on one day when he did attend work at Leon McKenna's, he believed that he was being followed. He described it as "real strange like, I felt like cars were following me, like, around, I was looking at the people on the street and…their like, it seemed, real hazy, and I was really dark like, you know, then I started sort of thinking, like, yeah, the demons were arriving".

46           The accused also gave evidence of recalling that when he visited Ms Humphries in the days leading up to 29 July, he told her that the cat was acting weird and he thought there were cameras in its eyes and he was under surveillance.

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47           The accused also described experiencing a belief that his grandfather was involved in fighting some sort of war with the "dark lord". He said this: "I believe that he was out, you know, fighting the war of…I'm under the belief that, yeah, there's a dark lord that, like, exists…who is originally a god that's been, like, had a spirit, an evil spirit, combined with him and made him, yeah, look, absolutely like killer, like, destruction".

48           As to the mark on his head, the accused said that he had a mark in the middle of his forehead and that he was under the belief that it was an amulet in his head, and that the amulet had been taken from the devil after his grandfather had killed the dark lord. He said he believed in reincarnation and that he was part of a cycle where he "got born[sic] every so many years", and that his grandfather had taken the amulet in World War II and placed it inside him, and that he had to keep it and hide it. At one point, he said that he thought his grandfather was "like Jesus Christ" and that the baton had "sort of passed down". He said because he possessed the amulet, he believed that he was actually "Jesus Christ, the Lord and Saviour" and that he had a "specific task".

49           As to the evening of Thursday, 28 July 2022, he said he was in his room, and he was having "lots of thoughts". He put some headphones on and opened Spotify on his phone. On the home page, he saw there was a mental health podcast. He decided to listen to it, to try and help himself. He said the podcast started by asking him to write stuff down, like "what I want and everything like that as it will, you know, come true". He said the podcast then went on to say he was going to need "a new world, my own world, and I had to write down things that I needed in there – things I wanted in there – I could write as much as I wanted, like create what I wanted". Tendered, through the accused, were some documents that he wrote whilst listening to the podcast. The document includes notations like:

"Spiritual energy
Earth/farm/oxygen/communication
House/computer
Car/study/tv/couch/water
I'm going to lose weight
I need to hunt
Justice is a smoke
Kill me"

50           The accused described that he believed that one of the voices on the podcast was that of his sister's ex-partner, a person named Tom Boyle. The accused said Mr Boyle does not create podcasts but at the time, it was his belief that it was his voice speaking to him from the headphones, and that he believed Mr Boyle was on the moon.

51           He said the voice of Mr Boyle suggested to him that he was under threat and that he was in danger. He said, "He mentioned that I was in danger and that, yeah, it's extremely close, like, it's in your house".

52           The accused said in response to this, he went and "scoped the house out" and found Oliver Triffett on the couch with some headphones on. The voice on the podcast said that Ollie was "the dark lord" and that he had found him.

53   The accused described that moment as follows:

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"Yeah, I was looking at him and I'm just like, no, that's Ollie like, and he's like that's not Ollie mate, he's now in the land of the gods, like yeah, and yeah, the dark lord come and stole his body".

He said he was:

"Under the belief that, like, the spirit and the body were two different things and once you hit a certain age…you can actually leave your body and go into different vessels and such, and the dark lord could jump vessels, which made him really hard to catch".

He said that because of what the podcast was saying, he believed he needed to protect the amulet and, to do that, he was going to have to fight for it. He said he believed the dark lord (Ollie) knew that he had the amulet and he was going to kill him, "one hundred percent". He said the podcast was telling him that he was the lord and the saviour and that he had been "shaped for this" and that he had to fight to protect the amulet.

54           The accused described that whilst all these thoughts were racing through his head, he was pacing around the room. He said if he walked away from where Mr Triffett was, the voice (Tom) would:

"Get into me and he's going like, you know,…you're a disgrace, like this has to be done…you have no option. You're gonna die otherwise and, like, he's an animal, he gives no shits and he's coming to get that amulet…the amulet gives him the power to unlock his demons and control his army and he's gonna take over you".

55           Mr Fowles said that because he had seen the demons on the occasion he had gone to work at Leon McKenna's and believed he was being followed, he accepted what the podcast was telling him and believed that the dark lord (Mr Triffett) was going to take over the place and rule and destroy the gods.

56           The accused described that these thoughts and instructions from the podcast went on for "hours" and that he was "just fighting this thing, just baffled by what's happening". He said that Mr Triffett got up off the couch and went to the bedroom. He said by this point he was convinced that Mr Triffett was the dark lord, so he followed him into the bedroom. He said to him that he did not want to be alone and he jumped over him and laid on the bed next to him. He said he was still listening to the podcast and that he was restless. He said he jumped back out of the bed and started pacing up and down the hallway, but the podcast kept going, telling him he "had no option…you're going to die otherwise…he's coming to get that amulet…it gives him the power to unlock his demons and control his army…" and so he headed back into the bedroom. At some point he could not clearly recall, he had armed himself with a pocketknife and, believing that Mr Triffett was "not Ollie", he lifted the knife up over his head and stabbed him to the neck.

57           He said he did not recall Mr Triffett throwing him to the floor after the first stabbing action, but he remembered Mr Triffett jumping out of bed and making a "beeline for the bathroom". He thought to himself, "Oh shit, you know, he's still going", so he jumped out of the bed and headed to the bathroom. He still had his headphones on. The podcast man was saying, "like, you know, what the eff are you doing, like what the eff", so he turned around and launched at Mr Triffett in the bathroom and stabbed him again. He said as he jumped forward to deliver the second stab wound, his headphones fell off and blood from Mr Triffett hit him in the face. He said he looked down and he had a knife in his hand and blood was everywhere. He said he was just stunned and was "like, what has just happened". He said at this point, the podcast was not on, and he was in absolute shock. He said Mr Triffett turned around, delivered "a couple of blows" and pushed him out of the way. Mr Triffett left the area.

58           The accused said he "freaked out". He put the headphones back on. The podcast told him: "you're joking – as if you've actually just done that. You can kill yourself but you're never going to

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get away with this, like, yeah, kill yourself". He said the podcast told him to kill himself quite a few times. He said he went to the bedroom and with no hesitation, stabbed himself twice in the chest. He said he "went for his heart" with the first two stabs, and then tried to "go for my airway" by cutting his throat. He said by this time he was quite weak and was unsuccessful in doing this.

59           He said he recalled hearing knocks at the door but could not recall going to the door and could not recall talking to police officers. He said he did not remember being in an ambulance and his next recall was opening his eyes when he regained consciousness in the Royal Hobart Hospital.

60           He said when he awoke in the Royal Hobart Hospital, he believed that he had "created a war with the dark lord". He said because of this, he got out of the bed at the hospital and started pacing back and forth in the room. He believed he needed to get into training for the war and so started doing push ups. He said he was able to see the police station from his window at the Royal Hobart Hospital and he thought the police station had a banner around it, and that it was some sort of finish line, and that he had to get to the finish line before Mr Triffett got there. Consequently, he said he smashed up some items in his hospital room and snuck past police in an endeavour to get to the police station before Mr Triffett. He said he believed that if he got to the police station first, he would get $1.8m. He said this:

"I snuck past the police and then, yeah, just legged it thinking I had to go down to the cop shop, which was the finish line, before Ollie, and got up here with the knife as I had to go down and convince them that he actually…so, yeah, I got out the door, I was going to take to the airport and, yeah, I was in the land of the gods where I was going to get 1.8 million dollars".

He said whilst he was in the hospital room, he thought that Tom Boyle from the podcast was talking to him through the television. He also said that he believed he had the ability to talk to the dead and was in contact with one of his dead grandfathers.

61           The accused was held at the Royal Hobart Hospital for a period of about seven days. His treatment was mandated pursuant to an order under the Mental Health Act 2013. He was then transferred to Risdon Prison. He said he continued to experience these types of beliefs for about another three weeks.

Letitia Marie Radford

62           Ms Radford gave evidence. She is the mother of the accused. At the relevant time she was living in Queensland. She said on Wednesday, 27 July 2022, at about 1.45pm, she called the accused after having missed his call. The accused asked her whether she believed in God. She replied, "No, I know he's there, but that's it as far as it goes for me". The accused replied, "Oh, it must be my dad". Ms Radford said the accused was "really racing" when he was talking. He kept repeating things about God and said, "you know Mum, when things line up, you know this is right. These things line up. It's meant to be". Ms Radford described it as a strange conversation and thought the accused was "prattling". She had a conversation with him about sleeping and the accused told her that he had not been sleeping and had not been for a couple of days. She suggested he should go to a chemist.

63          She said later that day, she had another conversation with him in which the accused said that he was "super over tired".

64          She said on Thursday, 28 July 2022 she had some further text exchanges and phone calls with the accused in which he, again, talked about being very tired. She said that at 1.44am on Friday, 29 July 2022, she received a phone call from the accused. He said to her, "Mum, am I dead and talking to you, or am I alive and talking to you?" She said that he repeated the same thing three times and that he was speaking in a slurred manner and that it was "really peculiar".

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Adam John Fowles

65           Mr Fowles gave evidence. He is the father of the accused. He gave evidence that in January 2022, he had an odd conversation with the accused. He said that he was at the accused's house and the accused was "talking about some stuff that was not making sense to me…some mythical stuff that he was getting into. It seemed a bit deep, and I just sort of said 'take no notice of it, just get on with life'".

66           Mr Fowles said that in mid-2022, he set off on an extended trip to remote parts of Australia. There was a period when he was unable to make telephone contact with the accused. He said that on 28 July 2022, he was in a place where he had phone reception, and he contacted the accused. He said he spoke to him for about half an hour. He said that following the conversation, he was very concerned about the accused's "mindset". He said that during the conversation, the accused mentioned that things seemed to be changing in the world and he was not understanding what it was, but something was changing. The accused told him that he had been to Leon McKenna's house, where he was doing some work, and that he felt that there was a lot of people on the road, excessive amounts, and that he was being followed by cars. He described the accused as having "some paranoia in his voice" and that the accused went on to say that he did not "want to be here anymore". He said he was saying "he didn't want to be on this earth". He said the phone call dropped out and that he tried to call the accused back but was unsuccessful in doing so.

67           As already noted, very little of the evidence was subject to challenge. I accept the evidence given by the respective witnesses. I am satisfied that in the weeks leading up to 29 July 2022, the accused was experiencing significant difficulties with his mental health (I will return to that). I am satisfied that throughout the evening of Thursday, 28 July 2022 and into the early hours of Friday, 29 July 2022, the accused came to believe that Mr Triffett was the "dark lord" and that he needed to kill him in order to protect the amulet, which he possessed. I am satisfied that when the accused stabbed Mr Triffett in the neck with the knife, in the bedroom, he intended to kill him. Similarly, I am satisfied that when he stabbed Mr Triffet in the back of the neck in the bathroom he did so intending to kill him.

68   The relevant elements of the crimes charged in the indictment are as follows:

(i)          The accused stabbed Mr Triffett with the specific intention of causing his death. I am satisfied beyond reasonable doubt of this. I accept the accused's evidence as to this. He believed he needed to kill Mr Triffett and he set out to do it. When Mr Triffett jumped from the bed after the first act of stabbing, the accused followed him to the bathroom and attempted to complete the task of killing him by stabbing him on the second occasion. The existence of the relevant intention is consistent with the psychiatric evidence, which I will discuss shortly. The psychiatric evidence informs the reason for the existence of the intention. However, I am satisfied beyond reasonable doubt, notwithstanding the psychiatric evidence, that the accused appreciated the nature of the physical acts of stabbing Mr Triffett with the knife on the two occasions, and intended to thereby cause his death.

(ii)         The acts were voluntary and intentional. There is nothing raised on the evidence to suggest the acts of stabbing Mr Triffett were not voluntary and intentional acts. The operation of s 16 of the Code involves different considerations. I am satisfied beyond reasonable doubt of this element.

(iii)        The acts were unlawful. In this case, there is nothing raised on the evidence that would justify or excuse this conduct. The attack by the accused on Mr Triffett was completely unjustified. Mr Triffett was not doing anything which may reasonably give rise to a belief in the need to defend oneself. I am satisfied beyond reasonable doubt both acts were unlawful.

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(iv)        The acts formed part of a series of events which, had they not been interrupted, would have caused Mr Triffett's death. I am satisfied beyond reasonable doubt about this. The stab wounds were directed to the neck. The first was to the front of the neck and had the potential to impact the airways of Mr Triffett. The second stab wound was delivered because the first stab wound had not been successful in killing Mr Triffett. It was delivered to an area where there are major arteries and veins and without treatment may have led to death.

It follows that I am satisfied beyond reasonable doubt that the accused has committed the acts charged in the indictment, which, but for the effect of s 16 of the Criminal Code on the criminal responsibility of the accused for those acts, would constitute the crimes of attempting to commit murder.

Insanity

69           There is considerable evidence of the accused's conduct and presentation in the week leading up to the incident, which sheds light on his mental state. In particular, I refer to the evidence of Mr Triffett, Mr Males, Ms Humphries, Ms Elbourne and the accused's parents, which I have already outlined. As noted, I accept the evidence given by the respective witnesses. There is consistency in the theme of their evidence, namely that the accused was displaying bizarre and out of character behaviour.

70           The accused also gave compelling evidence. I observed him carefully as he gave his evidence. He presented to me as an honest witness, who was dismayed by what had occurred. The way he gave his evidence was particularly compelling and persuasive. It was as if he was reliving the experience as he recounted the psychotic episodes that he experienced in the lead up to this incident. In my view, the detail with which he described these incidents and the intensity he displayed when describing these experiences could not be fabricated. I have no hesitation in accepting his evidence.

71 Additionally, the defence presented evidence from Dr Michael Jordan, a consultant psychiatrist. Dr Jordan has extensive academic qualifications and has considerable experience in the field of forensic psychiatry. He held the position of clinical director of the Tasmanian Forensic Mental Health Service between 2009 and 2016. He continues to practice as a consultant psychiatrist. I am satisfied that Dr Jordan has appropriate specialised knowledge, based on his training, study and experience to be able to express an opinion concerning issues arising under s 16 of the Criminal Code in respect of the accused and the acts committed by him, which constitute the alleged crime.

72           Dr Jordan's evidence was presented in the form of a report, dated 22 August 2023, and supplemented by oral evidence. Dr Jordan was cross-examined at length. He did not avert from his opinion.

73          Dr Jordan indicated that at the time he examined the accused, which was on 14 August 2023, there was no evidence of any formal thought disorder, and the accused was not experiencing any current psychotic symptoms. Dr Jordan noted that the accused was able to provide relatively detailed accounts of various delusions and abnormal perceptual experiences that he had been experiencing in the days leading up to 29 July 2022, together with describing two other discreet periods earlier in 2022, when he had experienced similar symptoms.

74           In addition to the information he gained from the accused during assessment, Dr Jordan also had access to the Tasmanian Health Service records for the accused, and he had access to and considered the statutory declarations of Oliver Triffett, Ryan Males, Jessica Humphries, Hannah Elbourne, attending members of Tasmania Police, the notes made by the accused whilst listening to the podcast, and statements from the accused's parents. He also had access to copies of documents relating to the Mental Health Act order, together with medical records from Risdon Prison.

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75           The accused's report to Dr Jordan of his condition leading up to and at the time of committing the relevant acts, is largely consistent with the evidence he gave in trial, and is also consistent with the other evidence presented on the trial.

76           In summary, the accused told Dr Jordan about the thoughts he was experiencing on Sunday, 24 July 2022. He told Dr Jordan about his sleep difficulties and inability to work, and the time he spent reading the Bible. He told Dr Jordan about the religious thoughts that he was experiencing, and his thoughts as to the meaning of the code that he believed existed, because of the connection between he and Ms Humphries' birthdays. The accused told Dr Jordan about his ongoing belief over this period that he was Jesus Christ.

77           As to the events preceding the attack on Mr Triffett, the accused told Dr Jordan about the podcast. He said he tried to listen to a "mental health" based podcast. As he was listening to the podcast, he described how "voices in my head began to talk to me". He told Dr Jordan he thought the podcast was being broadcast by "my sister's ex-boyfriend" and he believed that the purpose of the podcast was to "guide me to becoming a god". He told Dr Jordan that the podcast "kept telling me everything was going to be okay, everyone is behind you with this…this needs to happen for world peace". The accused told Dr Jordan that the voice on the podcast began to tell him "All you have to do is stab him in the neck and we will do the rest of the work, but you have to be the one to stab him as only you, Jesus, can stop him before he wakes and opens hells' gates".

78           The accused described to Dr Jordan that the instructions from the podcast voice to stab his friend, continued for quite some time and he was confused by them. He said the instructions kept being repeated. The accused told Dr Jordan "the voice kept instructing me to stab Ollie…we have given you everything you need. If you don't do it, you will let your ancestors down. Do you really want another world war? You're pathetic, I hope he kills you instead". The accused told Dr Jordan he saw Mr Triffett on the couch and when he went to the bedroom, he followed him in there, believing he had to kill him. He recalled lying next to Mr Triffett still listening to the podcast. The accused described to Dr Jordan, stabbing Mr Triffett, on the first occasion, believing he had stabbed him to the neck region. Mr Triffett reacted and left the bedroom and went to the bathroom. The accused told Dr Jordan he followed him in there, still listening to instructions being given to him on the podcast, and recalled stabbing Mr Triffett again in the back region, near the shoulder, near the neck. The accused described to Dr Jordan, blood shooting out of the wound and onto his face. He described to Dr Jordan how Mr Triffett punched him to the face and knocked him to the floor, and how he recalled thinking, "what have I done". He also described to Dr Jordan how the voice on the podcast instructed him to stab himself, kill himself which he did.

79           Dr Jordan had access to notes from an assessment conducted by a consultant psychiatrist at the Royal Hobart Hospital on 1 August 2022. Those notes indicated that the accused reported that he was still hearing voices "asking him to harm others and himself and that he feels other people out there are going to hurt him". He was described as "very guarded and evasive" and "extremely anxious". The psychiatrist was concerned that the accused was still experiencing command hallucinations and ongoing paranoia. He was prescribed an anti-psychotic.

80           At a further psychiatric review the following day, the accused again presented with symptoms of psychosis. He admitted to ongoing auditory hallucinations. His pattern of speech was noted to be hesitant with disfluency and there was difficulty in providing clear, explicit answers. The psychiatrist initiated his mental health care to be mandated by a treatment order under the Mental Health Act.

81           Dr Jordan noted he had access to the medical notes from the Risdon Prison Complex. The accused was seen by a forensic psychiatrist, Dr Gray, following his transfer there. During one review, the accused recounted to the forensic psychiatrist that when listening to the podcast "I heard it telling me I had to kill him or the world would end. I thought we were gods and it was necessary, I fought it

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for four or five hours, pacing back and forth, but the podcast kept telling me it needed to be done or everyone would die". Dr Gray was of the opinion that the accused was still suffering from a first episode psychosis. A family history of schizophrenia was also noted.

82           After assessment of all the material that was available to him, Dr Jordan was of the opinion that the accused was suffering from Bi-polar Affective Disorder with a differential diagnosis of schizoaffective disorder. He noted he had endured three episodes of psychosis within approximately six months, between the beginning of 2022 and the alleged offending on 29 July 2022. He noted the first two episodes of psychosis were characterised by difficulties with sleep, religious delusions and grandiose themes. There was a similar pattern to the more extended period of psychosis, which led to the alleged offending. During this episode of psychosis, there were notable religious, grandiose and paranoid themes. The accused was also experiencing command hallucinations and referential ideation. Dr Jordan also noted that this psychosis extended post the alleged offending and that the accused continued to experience psychosis whilst in the Royal Hobart Hospital and following his remand to Risdon Prison.

83 Section 16 of the Criminal Code provides:

"16	Insanity
(1)	A person is not criminally responsible for an act done or an omission made by him –

(a)

when afflicted with mental disease to such an extent as to render him incapable of –

(i)	understanding the physical character of such act or omission; or
(ii)	knowing that such act or omission was one which he ought not to do or make; or

(b)

when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.

(2)	The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.
(3)	A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed.
..."

84          Dr Jordan's opinion, within the context of the issues relevant to criminal responsibility of the accused, under s 16, can be summarised as follows:

(a) The accused was afflicted with mental disease, in particular Bi-polar Affective Disorder, with a differential diagnosis of schizoaffective disorder. Dr Jordan was of the view that the accused's presentation at the time of the alleged offending could not be explained as the product of the ingestion of any illicit substances.

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(b)	The mental disease did not render him incapable of understanding the physical character of his actions. He was aware that the use of a knife in assaulting Mr Triffett was likely to cause serious, physical harm.
(c)	As to the question of whether the mental disease afflicted the accused to such an extent as to render him incapable of knowing that the act of stabbing Mr Triffett to the neck on both the first and second occasion, were acts which he ought not to do or make, Dr Jordan opined as follows:

"As is outlined in various descriptions of Mr Fowles' symptoms leading up to the alleged offending, he was experiencing psychotic instruction to kill Mr Triffett in the context of more complex delusions that Mr Fowles was at the centre of a grandiose process where he was a god, possibly even Jesus Christ, and that in order to protect his ancestors and prevent a large scale war, he had to eliminate Mr Triffett, who, within that delusional system, stood to stop or hinder what Mr Fowles was instructed to do. Further, as has also been outlined, Mr Fowles was good friends with Mr Triffett and there was no reality-based animosity between the two men. In effect, Mr Fowles believed it was morally correct, given the content and instruction from his psychotic episode derived from his mental disorder, that he must attack and kill the complainant. Mr Fowles did not believe that there was a choice."

(d) Dr Jordan also gave consideration as to whether the accused's actions were committed under an impulse, which, by reason of mental disorder, he was, in substance, deprived of any power to resist (s 16(1)(b)). Dr Jordan opined:

"It might be considered that the psychotic phenomenon of the voice that he heard during listening to the podcast might be viewed, certainly in combination with the various other delusional themes, as an impulse or urge that he was unable to resist within the context of a summation of all those symptoms. Mr Fowles had been experiencing the directive to harm or kill Mr Triffett for a number of hours prior to the actual act of assault. This notwithstanding, it is considered that Mr Fowles did not recall or conscientiously attempt to resist the various psychotic drives which were derived from his mental disease."

Dr Jordan was therefore of the opinion that whilst there was an urge that was coming from the command hallucinations within the context of the psychotic landscape that acted like an impulse to the accused which, "to some extent", the accused was deprived of power to resist, because Mr Fowles did not recall trying to resist the hallucinations, Dr Jordan was not of the opinion that he could conclude he was "in substance deprived of any power to resist it" .

85           In summary then, the opinion of Dr Jordan was that the combination of the symptoms that the accused was experiencing led him to not appreciate the wrongfulness of what he was doing. Indeed, given the content and instruction from the psychotic episode, he did not believe there was a choice. Within the complex delusional system that the accused had been experiencing for a number of days in the lead up to the alleged offending, and the specific command hallucinations that he was experiencing in the immediate lead up to the incident that were instructing him to kill Mr Triffett, the accused within the delusional system, believed he was doing what must be done and that it was morally correct that he kill Mr Triffett.

86           I accept the opinion of Dr Jordan. His expertise to offer the opinion is not in dispute. His opinion is well grounded in facts that I am satisfied are established on the evidence. The prosecution cross-examined Dr Jordan, at length, particularly in respect to the evidence with suggested that the accused took a long time to act upon the thoughts and delusions that he was experiencing, that he spent time pacing around the house, seemingly challenging, or at least not immediately complying with, the voice on the podcast when it suggested "Ollie" was the "Dark Lord" and must be killed. Dr

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Jordan was of the opinion that the pacing simply indicated the accused was agitated, consistent with the psychotic episode he was experiencing, and the evidence that suggested the accused was grappling with the instructions he was receiving from the voice on the podcast, and took several hours to ultimately act on the instructions he was receiving, was reflective of the intensity of the psychotic episode. The voices were instructing him over several hours, and the voices and thoughts became "stronger and stronger" over those hours until the accused acted upon them. Dr Jordan did not consider the passage of time meant the accused knew he should not do what he was being instructed to do. Rather, by the time the accused stabbed Mr Triffett the intensity of the psychotic phenomenon was to the extent the accused believed he had no choice but to attack and kill Mr Triffett.

87           Dr Jordan was also asked as to whether Mr Fowles' apparent compliance with police when they entered the residence, was suggestive that the psychotic episode had come to an end. Dr Jordan's opinion was that there was no evidence to suggest the psychotic episode had come to an end, given the material that he had viewed from the Royal Hobart Hospital, the order made under the Mental Health Act and the Risdon Prison medical notes. This material clearly established that Mr Fowles was continuing to experience psychotic symptoms for many weeks after the incident. Dr Jordan was of the opinion that the compliance and apparent lethargy was more related to the fact that he had stabbed himself twice to the chest and was experiencing significant blood loss, than any reflection of the psychotic episode ending. Dr Jordan also noted that the delusional system the accused was experiencing, centred around Mr Triffett being the person who he had to eliminate, rather than any other person, thus once Mr Triffett was absent the accused no longer had the need to act.

88           Dr Jordan was also cross-examined about some differences in terminology and subject matter the accused had referenced when describing the psychosis to various people. For example, the accused did not tell Dr Jordan about an amulet. Dr Jordan explained it was difficult for people who experienced psychosis to logically and consistently recount the experience, because looking back on it, it can appear incongruent, and there is "a good possibility" that additional aspects of the psychosis are recalled over time. Moreover, other things may occur that allow someone to recall further facets of the psychosis that they do not necessarily recall proximal to the incident. Dr Jordan also noted the command hallucinations and voices experienced by the accused during the psychosis continued for several hours and it is difficult to remember "verbatim" exactly what the voices were saying over those hours.

89           In summary, the opinion expressed by Dr Jordan was based on significant experience in the field of psychiatry. His evidence was detailed and thorough, and his opinion was offered after consideration of a large body of available material. In my assessment, his opinion was consistent with the evidence of those who knew the accused and observed him in the weeks and days leading up to the incident, and with the evidence of the accused. There was no evidence called from any other suitably qualified expert to contradict his opinion. Whilst it is a matter for me as to whether I accept the opinion of Dr Jordan, given I am satisfied it is well grounded on facts established by the evidence, there is no sensible or logical reason to reject it.

Findings in respect of s 16

90           I am satisfied that the accused was afflicted with mental disease when he stabbed Mr Triffett on both occasions with the knife. In determining this question, I direct myself in accordance with the comments of King CJ in R v Radford (1995) 42 SASR 266, as approved by Mason CJ, Brennan and McHugh JJ in R v Falconer (1991) 71 CLR 30 at [53], as follows:

"The essential notation appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called defective reason in the McNaughton Rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be

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properly termed mental illness as distinct from the reaction of a healthy mind to
extraordinary external stimuli".

91           Applying this test to the evidence in this case, I have no doubt that the accused was experiencing symptoms of Bi-polar Affective disorder with a differential diagnosis of schizoaffective disorder. This is a mental disease within the meaning of s 16.

92           Moreover, I am satisfied that the accused's mental disease rendered him incapable of knowing that the two acts of stabbing Mr Triffett were ones which he ought not do. The evidence of Dr Jordan, taken with the other evidence, in particular, the compelling evidence given by the accused on his trial, satisfies me on the balance of probabilities that he was, at the time of committing the relevant acts, affected by his mental disease to such an extent, that he was rendered incapable of knowing that he ought not stab Mr Triffett as he did. I accept Dr Jordan's opinion that, because of the psychosis, the accused believed he had no choice but to kill Mr Triffett, and that it was not morally wrong that he do so. In so finding, I direct myself in accordance with the standard directions given to a jury in matters of this nature, taken from the charge given by Dixon J in R v Porter [1933] HCA 1, [1936] 56 CLR 182, as follows:

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

93           I am satisfied, on the balance of probabilities, that through the disordered condition of his mind, the accused was incapable of reasoning with a moderate degree of sense and composure, that it was wrong, having regard to the everyday standards of reasonable people, to attempt to kill Mr Triffett on the two occasions that he did.

94           I am not satisfied on the balance of probabilities that the accused was acting under an impulse he was, in substance, deprived of any power to resist. It is therefore not necessary to consider s,16 (3) of the Criminal Code.

Verdict

95   On both count 1 and count 2 on the indictment, I return the following verdict:

The accused committed the acts charged but is not guilty on the ground that he was insane at the time so as not to be responsible according to law.