R v Davidson (No. 2)

1. [1]

   Mervyn Keith Davidson was arraigned before me on Monday, 29 July 2019 and entered a plea of not guilty to the following charge:

2. [2]

   The trial was conducted without a jury. The accused applied for an order that he be tried by a judge alone and sought leave to make that application out of time. The Crown consented both to the leave being granted and to the application.

3. [3]

   On 11 July 2019 I granted both the leave and the application and made a trial by judge order pursuant to ss 132 and 132A of the Criminal Procedure Act 1986 (NSW).

Outline of the facts

1. [4]

   The accused and the deceased were both inmates at the Metropolitan Remand and Reception Centre (“MRRC”) at Silverwater. They were both housed in Goldsmith Pod 12. There were individual cells on two levels of the pod. The accused was housed in cell 397 by himself on the upper level. The deceased was housed with another inmate in cell 396, directly to the left of the accused's cell.

2. [5]

   The accused was housed by himself as he had previously attempted to choke a prior cellmate with a T-shirt in February 2017. He was charged for that and other offences, and was due to appear for sentencing for that matter on 8 February 2018. However, the accused was ill and the sentencing did not occur on 8 February 2018.

3. [6]

   Sometime after lunch on 9 February 2018, the deceased was sitting at a table on the bottom level of the pod with a few other inmates including his cellmate. The others started playing cards and the deceased stood up and walked away after the first hand.

4. [7]

   The accused, who was standing on the upper level of the pod, was observed to raise his arms above his head with clenched fists. When asked if he was all right, he replied, 'Yeah I will fucking kill them all'. At the time, he was standing right outside of the deceased's cell.

5. [8]

   At about 1:50pm, the deceased was observed on CCTV to enter his cell and shut the door behind him. At that time the accused was on the landing nearby. The accused then opened the door to the deceased’s cell, walked inside and closed the door behind him. He remained in the cell with the deceased for approximately 25 minutes.

6. [9]

   The accused then walked out of the deceased’s cell, closed the door and went into his own cell next door, closing the door behind him. A few minutes later he opened his door, walked across to the deceased’s cell, and opened the door before going back into his own cell.

7. [10]

   While the accused was with the deceased in the deceased’s cell, the accused choked the deceased. He assaulted him further, in part causing bilateral rib fractures to most of his ribs, and bruising to his posterior chest wall and left lung.

8. [11]

   At about this time, one of the other inmates in the pod went to see the deceased. He saw that the door to the cell was open and that the deceased was lying on the ground. The inmate pressed the “knock up button” which is an emergency button located within each cell.

9. [12]

   Three Corrective Services officers went to the cell. The deceased was lying on the ground inside the cell. His head was closest to the door and he was lying on his left-hand side. Some blood was coming out of his mouth. There was a horizontal mark across his neck, and his whole head and face were almost purple in colour upwards from the mark on his neck. There was significant swelling to his right eye. At this time, the accused was still inside his own cell and a Corrective Services officer locked him inside it.

10. [13]

    Medical staff attended and attempted to resuscitate the deceased. Paramedics attended and began to treat him. He was conveyed to hospital where further attempts were made to resuscitate him but they were unsuccessful.

11. [14]

    The deceased suffered a hypoxic ischaemic brain injury. A post mortem later established that the cause of death was the combined effects of neck compression and blunt force chest trauma.

12. [15]

    After the deceased had been conveyed to hospital, the accused was taken from his cell to the police custody area and placed under arrest. When cautioned, he told the police to “fuck off”. He was calm and composed during further conversations with the police.

13. [16]

    Forensic procedures were conducted and an injury to the deceased’s right little finger was observed. It could not be straightened properly.

14. [17]

    The accused was released back into Corrective Services custody before being arrested again on 11 February 2018. On this occasion when he was cautioned, he said, “I'm not talking to no cunt” and when informed that he was to be charged with murder, he said, “I know what I'm here for. Just hurry up and do the charge paperwork so I can go back to my cell and sleep.”

Legal principles

1. [18]

   This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged.

2. [19]

   In order to prove the charge of murder, the Crown must prove that there was a voluntary act of the accused that caused the death of the deceased, that the act was carried out with an intention either to kill or to cause really serious bodily harm or was done with reckless indifference to life. The Crown case was not based on reckless indifference but on an intention at least to inflict really serious injury. The Crown must also prove that the act of the accused was not done in self-defence. There is no evidence in the present case to suggest that self-defence is an issue. The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation on the Crown is only to prove the elements of the charge beyond reasonable doubt.

3. [20]

   The Crown accepts that the case is a circumstantial one as far as the killing of the deceased is concerned. That is because no-one observed the accused assault the deceased. Rather, the Crown submits that from an examination of the CCTV footage, the Court would conclude that the only person who could have killed the deceased was the accused.

4. [21]

   In a circumstantial case, no one fact can prove the guilt of the accused. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that the accused is guilty of the offence charged.

5. [22]

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

6. [23]

   The three principal issues arising in this case concern whether the accused was suffering from mental illness so that he did not know what he was doing or, if he did, that he did not know that what he was doing was wrong. The second issue, which arises in the alternative, is whether at the time he did the act alleged, his capacity to understand events or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of the mind arising from an underlying condition and, if so, whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A of the Crimes Act 1900 (NSW)).

7. [24]

   The third issue is whether the accused was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct so that it cannot be shown that the accused had the requisite intention to cause death or really serious bodily injury (s 428C of the Crimes Act).

8. [25]

   The main evidence in relation to these matters was given by two psychiatrists. Dr Adam Martin prepared two reports dated 22 January 2019 and 24 April 2019. Dr Olav Nielssen prepared two reports dated 20 October 2018 and 5 July 2019. Both doctors gave oral evidence in addition to the evidence contained in their reports.

9. [26]

   Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides:

10. [27]

    Section 23A of the Crimes Act 1900 (NSW) relevantly provides:

11. [28]

    Part 11A of the Crimes Act relevantly provides:

12. [29]

    In R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226, Hunt AJA (with whom Spigelman CJ and Howie J agreed) said at [32]:

13. [30]

    As I have noted, in the present case the accused has raised both mental illness and, in the alternative, substantial impairment. Although the evidence relating to the accused’s mental illness is also relied on for the defence of substantial impairment, that defence needs to be considered separately and at a different stage. Before it is considered, I must first determine if the Crown establishes all the elements of murder: Regina v Christov [2006] NSWSC 972 at [7]-[8], [140]; R v Haydar (No. 3) [2017] NSWSC 159 at [36]-[37].

(1) Was it the accused’s act that killed the deceased?

1. [31]

   It is not in dispute that the deceased was killed by being strangled and by blunt force trauma. That it was the accused who strangled the deceased and inflicted the blunt force trauma is not put in issue. However, the accused does not admit that it was him because he says that he cannot remember doing the acts. The Crown must, therefore prove that it was he who did those acts, and must do so beyond reasonable doubt because it is one of the elements of the offence.

2. [32]

   The Crown relied on the CCTV footage taken from Pod 12 in G Block at the prison and on the analysis of that footage by Detective Senior Constable Scott Ford. The footage was played in Court and I have since reviewed it a number of times in chambers.

3. [33]

   That footage shows an inmate walking up the stairs between the lower and upper levels of the pod on the left side of the CCTV camera at about 1:52pm with a white rag on his head. That person is the deceased. He enters his cell (cell 396) and shuts the door at 1:52.49pm. There is another inmate standing on the landing near cell 396. Senior Constable Ford identifies him as the accused who appears in a screenshot at Annexure 3 to Senior Constable Ford’s statement. At 1:53.05pm the accused enters cell 396 and closes the door. Although another inmate, believed to be the cellmate of the deceased, approaches the cell and stands outside the door from 1:56.14pm until 1:56.29pm he does not enter the cell. At 1:57.09pm the door of the cell is opened from the inside and then closed two seconds later. Between 1:53.05pm and 2:18.19pm no-one enters or leaves cell 396.

4. [34]

   The door of cell 396 remains closed until 2:18.19pm when a person leaves the cell and closes the door, then immediately enters cell 397, shutting the door behind them. At 2:22.11pm a person opens the door of cell 397 from the inside, moves to the door of cell 396 and opens it, then re-enters cell 397. Between 2:22.19pm and 2:25.20pm no person enters or leaves cell 397. At 2:25.20pm the open door of cell 397 is closed and locked by an officer. In the meantime, at 2:22.45pm an inmate wearing a singlet and with a jumper around his shoulders discovers the body of the deceased lying in cell 396. That inmate was AP. He hit the “knock-up button” to call the Corrective Services officers.

5. [35]

   My own viewing of the CCTV footage confirms the movements described by Senior Constable Ford. I am satisfied beyond reasonable doubt that the person referred to at [34] above is the accused. The only two persons who were in cell 396 between 1:53.05pm and 2:18.19pm were the deceased and the accused. Between those times, the deceased was killed.

6. [36]

   The accused gave evidence. He denied that he was in the deceased’s cell at that time but when pressed on the matter said that he was denying it because he did not remember being there. There is an issue about whether the accused is and was telling the truth when he said that he could not remember being in the deceased’s cell or anything about the death of the deceased. However, this issue is more particularly concerned with the issues associated with the accused’s mental illness and drug intoxication.

7. [37]

   The autopsy report by Dr Sairita Maistry shows that the deceased died from the combined effects of neck compression and blunt chest trauma. There were fractures to right ribs numbered 3-6 and 8-11, and to left ribs numbered 2-11. There was extensive bruising to the neck and head area, and bruising and abrasions to the deceased’s arms, legs, posterior chest wall and left lung. Other injuries consisted of bruising and swelling to the deceased’s right eye, cheek and neck. There was further bleeding over the white area of his eye and bleeding into the skin on his face extending down to the middle of his neck. There was a small haematoma over his left forehead.

8. [38]

   The injuries were not capable of being self-inflicted or caused by misadventure.

9. [39]

   I am, on the basis of the CCTV footage and the evidence of Senior Constable Ford and despite the accused’s denials, satisfied beyond reasonable doubt that the death of the deceased was caused by the acts of the accused. The accused was alone with the deceased in the deceased’s cell for more than 20 minutes. For most of the time the door was shut. No-one else was inside the cell. The deceased was seen to walk into the cell shortly before the accused went into the cell. Shortly after the accused left that cell and went to his own, the deceased was found lying on the floor of his cell, seriously injured.

(2) Was the accused criminally responsible for his acts?

1. [40]

   This question involves a consideration of whether the accused establishes a defence based on mental illness.

2. [41]

   I have to consider whether, at the time the act was done, the accused was mentally ill, so as not to be responsible according to law. The onus in this issue is on the accused to make out the elements of the defence on the balance of probabilities. The elements of the defence are laid down in M’Naghten’s Case, Re (1843) 8 ER 718 at 722; [1843-60] All ER 229. The accused must establish that he was labouring under such a defect of reason, arising from a disease of the mind, that he either did not know the nature and quality of what he was doing; or, if he did know those things, that he did not know that what he was doing was wrong.

3. [42]

   In assessing the mental state of the accused, the relevant time to be considered is the time when the Crown alleges that the act constituting the offence was done. I am not concerned, as such, with the mental state of the accused before or after that time, except insofar as it assists me in determining what his mental state was likely to have been at that time.

4. [43]

   The law requires that the accused’s 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 a 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.

5. [44]

   A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented the accused from knowing what he was doing, in that he did not know the physical nature or quality of the act or did not know that the act was wrong (according to the ordinary standards of reasonable people in our community).

6. [45]

   Expert witnesses are people with specialist knowledge based on their training, study or experience. They are entitled to give their opinion on matters within their specialist knowledge. Other witnesses are ordinarily only able to give evidence of facts, that is, what they see or hear or what they have done or what others have done to their direct knowledge.

7. [46]

   Expert evidence is admitted to provide the Court with information and opinion which is within the expert witness's expertise but which is likely to be outside the experience and knowledge of the average layperson including a judge.

8. [47]

   Although there were differences between the experts in relation to some matters, there was also a large measure of agreement. To the extent to which the expert evidence is agreed, provided it is not inherently unbelievable, I would need to have a good reason to reject it — for example, because it does not fit with other facts which I have found to be proved.

9. [48]

   Professor David Greenberg examined the accused on 5 April 2017, arising out of a number of offences with which the accused was charged at that time. The report is addressed to a Magistrate at the Wollongong Local Court and appears to have come about as a result of a request by the Court for a psychiatric report.

10. [49]

    Professor Greenberg reviewed the accused’s medical records at Justice Health in relation to psychiatric issues. He noted that a psychiatrist, Dr Kimberly Dean, had obtained a history of crystal methamphetamine and cannabis use as well as a past history of heroin use. The accused had complained to her of hearing voices from the television. Dr Dean considered that the accused had a possible underlying psychotic disorder.

11. [50]

    Professor Greenberg noted a consultation with Dr Sunny Wade, a psychiatrist, on 27 February 2017. Dr Wade noted that the accused had delusions of misidentification about his family and paranoid delusions about his family lying to him. Dr Wade noted that the accused had poor judgment. She diagnosed him with a psychotic disorder and initiated treatment with Olanzapine, an antipsychotic medication.

12. [51]

    Professor Greenberg noted that the accused had been seen by another psychiatrist, Dr Nguy, on 23 March 2017. The accused complained to Dr Nguy that “Rita” was playing with his mind and she told him to put his ring on his finger. Dr Nguy diagnosed the accused with a late onset of psychosis. He noted that the accused had persecutory, Capgras and erotomanic delusions (Capgras delusion involves an irrational belief that someone they know or recognise has been replaced by an imposter.) On 30 March 2017 Dr Nguy diagnosed the accused with drug-induced psychosis, polysubstance use disorder and antisocial personality disorder.

13. [52]

    Professor Greenberg said that in the consultation with him, the accused showed no evidence of any formal thought disorder. The accused reported auditory hallucination telling him that people were going to kill him and to strangle his then cellmate. Professor Greenberg noted that the accused appeared to have secondary paranoid ideation, claiming that the voices were telling him to harm people but he knew the voices were not real. He said that he had also received messages from the television claiming that the messages told him to do bad things such as hurt other people. He denied any grandiose delusions. He told Professor Greenberg that he was “off his head” at the time of the earlier offending because he was using crystal methamphetamine. Professor Greenberg commented that the accused, in that way, had some insight into his disordered mental state.

14. [53]

    Professor Greenberg’s diagnosis was as follows:

15. [54]

    Professor Greenberg concluded that there were no reasonable grounds to believe that the accused was a mentally ill person suffering from a mental illness or a mental disorder as defined within the meaning of Chapter III of the Mental Health Act 2007 (NSW). Professor Greenberg was also of the opinion that there were no reasonable grounds to believe that the accused suffered from a developmental disability.

16. [55]

    Dr Martin first examined the accused via AVL on 18 December 2018.

17. [56]

    The accused told Dr Martin that he first drank alcohol at the age of ten. He first smoked cannabis at the age of eight. He smoked cannabis on a daily basis. He had previously smoked heroin on a daily basis. About two years before the consultation he said that he started using amphetamines. He said that when he was living outside of custody he was using amphetamines several days per week. He said that he used drugs in gaol when he could, and said that he obtained them from other inmates. He said that the last time he had used them was “before the murder blue”.

18. [57]

    He said that he had undergone rehabilitation at Oolong House but he did not complete the program.

19. [58]

    In relation to his mental health, he said that he took Avanza (Mirtazapine, a sedative antidepressant). He denied misidentification symptoms, feeling paranoid, experiencing ideas of reference, thought interference or passivity phenomena (all common and acute psychotic symptoms often seen in schizophrenia), as well as suicidal thoughts or other major depressive symptoms.

20. [59]

    He told Dr Martin that he was prescribed Largactil (Chlorpromazine, a first generation antipsychotic medication) daily since the offending. He was prescribed a depot antipsychotic medication fortnightly but was unable to identify the exact medication.

21. [60]

    He said that he was first prescribed antipsychotic medication about two years prior when he thought he was in a mental health screening unit. He said that he was given this medication because of “hearing things, hearing voices, things off the radio, telling me things, things about going out to hurt people – saying bash this person”. He said that two years ago he had been paranoid that people were going to bash him or stab him. He said that he had experienced paranoid symptoms after using drugs. He said that he had previously thought that people had been “replaced”, saying “[I] thought my family wasn’t my family”. He said that the television had talked to him about two years prior to Dr Martin’s examination, and the accused said that it was around that time he had been using methamphetamine regularly.

22. [61]

    When asked why he had previously choked an inmate, the accused said “I don’t remember, I was on ice”.

23. [62]

    Dr Martin said that there was no evidence at that time of current delusional thinking, and Dr Martin noted that the accused denied experiencing hallucinations at that time. While there was poverty of expressed thought, there was no other formal thought disorder.

24. [63]

    In relation to the present offence, the accused told Dr Martin that he was worried that he would get convicted for doing something that he did not do. He said that he did not remember it. He said that he had taken five Xanax (Alprazolam, a potent and disinhibiting benzodiazepine) the morning of the alleged offending which he had obtained from another inmate, and said that he had taken “ice” the same morning which he had smoked. He said that he thought he may have taken ice the day before. He had been using ice roughly once a week.

25. [64]

    Dr Martin reviewed the Justice Health records. He noted an assessment by Dr Sarah-Jane Spencer, a psychiatrist, ten days after the offending where she wrote:

26. [65]

    Dr Spencer recommended he be transferred to the Mental Health Unit at Long Bay Hospital so his mental state could be thoroughly assessed.

27. [66]

    Earlier, on 11 February 2018, the mental health notes stated that the accused had been seen by the Risk Intervention Team. The notes said:

28. [67]

    On 12 February 2018 he was assessed by Dr Nguy, a staff specialist psychiatrist at the MRRC. Dr Nguy noted that the accused denied psychiatric disturbance. He “denied feeling depressed/angry, no voices, no persecutory, no thought control, no referential [ideas]”, and said his mood was all good.

29. [68]

    Dr Martin’s opinion was that the accused probably had schizophrenia. He said that methamphetamine is known to produce a schizophrenic type syndrome in vulnerable people, and in all likelihood the accused had caused himself cognitive damage as a result of sustained substance abuse going back to his childhood.

30. [69]

    Dr Martin noted that the accused’s presentation had previously been labelled as drug-induced psychosis. Dr Martin said:

31. [70]

    When Dr Martin came to consider a defence of mental illness, he noted that the accused could only give a very basic account of the day in question, saying that he had used Xanax and methamphetamine on the day. Dr Martin said he had not seen corroborative toxicology in relation to that allegation.

32. [71]

    Dr Martin said that on the assumption that the accused was physically responsible for the alleged offending, in relation to the M’Naghten Rules he found the following:

33. [72]

    Dr Martin conducted a further interview with the accused in person on 1 April 2019. His report of that meeting is dated 24 April 2019.

34. [73]

    At this interview, the accused said that on the day of the offending he had used “a little bit of ice that day – a point” (0.1g) and that he smoked it at about 8:30 in the morning. He said that he had used ice the day before, again about one point’s worth. He said that on the morning of the offending he had also used five Xanax tablets that had been given to him by another inmate. He said that the last thing he could remember prior to the offending was taking the Xanax. The next thing that he could remember was going to his cell. He denied any memory of his arrest. He could remember the next day being charged at the MRRC.

35. [74]

    Dr Martin said that he had not changed his opinion as it was expressed in his earlier report of 22 January 2019. He went on to say:

36. [75]

    In his oral evidence Dr Martin said that he thought that his and Dr Nielssen’s views were not so different, but he thought that Dr Nielssen took a broader view of the mental illness defence. Dr Martin said that the issue he had was that, just because a person has a mental illness does not automatically give them a mental illness defence. He said a possible scenario is that a person who has a mental illness may become severely intoxicated with methamphetamine and act in a very violent manner. Whether that should be seen as giving a person the mental illness defence was debateable in his opinion.

37. [76]

    When asked about his professional view as to whether the accused satisfied the M’Naghten test on balance, Dr Martin said that he was sitting on the fence. He said that the offending probably occurred while the accused was psychotic, paranoid, hearing voices and had an impaired ability to control himself. However, he said, he could not ignore that the alleged violence may have occurred in a rage driven by having just taken methamphetamine and the effects of taking five Alprazolam. He could not completely exclude the possibility that the accused acted out of anger, and that drugs would exacerbate that.

38. [77]

    Dr Olav Nielssen interviewed the accused by AVL on 8 August and 17 October 2018. Dr Nielssen’s report of those interviews is dated 20 October 2018. The history taken by Dr Nielssen from the accused did not differ significantly from that taken by Dr Martin. Similarly, Dr Nielssen’s review of the Justice Health records largely accorded with what Dr Martin had summarised.

39. [78]

    Dr Nielssen diagnosed the accused as suffering from schizophrenia and substance use disorder. He said that the diagnosis of schizophrenia was made on the basis of the symptoms reported by the accused, the pattern symptoms, the serial observations and the pattern of treatment recorded in the Justice Health notes, and aspects of the accused’s presentation during the second interview on 17 October 2018.

40. [79]

    Dr Nielssen said:

41. [80]

    There was tendered a folder containing 165 pages of Justice Health records relating to the accused. Each party had flagged a few pages to which they took me in their addresses. I enquired of the parties of the status of the remaining documents in the folder because I did not consider it appropriate for me to examine these and rely on them without submissions having been made. The Crown indicated that it only relied upon the flagged documents. Counsel for the accused asked for leave to send me a note of any other pages to which I should have regard. He did so. I have not had regard to any pages other than the flagged pages and the pages referred to in counsel’s note, which I have marked as MFI1.

42. [81]

    I note references in the Justice Health records on 15 and 19 February 2018 to him hearing voices. The records show also that he was administered Olanzapine in 2017 and 2018, and Chloropromazine (an anti-psychotic) in 2018. Counsel for the accused drew my attention to these entries.

43. [82]

    Both Dr Martin and Dr Nielssen agreed that the accused suffers from schizophrenia and did so at the time of the offending. Professor Greenberg did not think that the accused suffered from a mental illness. However, Professor Greenberg only saw the accused on one occasion in April 2017. Both Drs Martin and Nielssen had the considerable advantage of having the accused’s ongoing history since that time both from the Justice Health material and from interviews with the accused.

44. [83]

    A significant part of that history was the pharmacological treatment the accused has received and its resultant effect on the accused’s behaviour and self-reporting at various times. Seen from the present vantage point, three things seem to me to be apparent. First, at the time Professor Greenberg saw the accused, the symptoms he was reporting were of somewhat recent onset and appeared to be related to his regular use of methamphetamine before he went into custody following the offences committed in January 2017. The psychiatrists who had seen him to that point appeared to be of the opinion that he was suffering from a drug-induced psychosis.

45. [84]

    Secondly, the treatment the accused was receiving up to the early part of 2018 was not apparently completely controlling the accused’s condition, whereas the depot injections of zuclopenthixol (an anti-psychotic medication) seem to have been far more effective in that regard. That is some indication that the accused’s underlying condition is schizophrenia rather than a drug-induced psychosis.

46. [85]

    Thirdly, the fact that the accused has been held in a far more secure environment since the present offence was committed means that the accused has had little or no opportunity to consume illegal drugs, especially methamphetamine. In those circumstances, it can be seen that his present mental state is unlikely to be affected by drug use. The fact that he still needs the injections is a good indication, therefore, that the underlying cause of his problems is schizophrenia.

47. [86]

    Dr Martin said:

48. [87]

    I am satisfied on the basis of the evidence from Dr Martin and Dr Nielssen that the accused suffers from a defect of reason arising from a disease of his mind, namely, schizophrenia, and did so at the time of the present offence.

49. [88]

    It must then be asked whether the accused knew the nature and quality of what he was doing.

50. [89]

    In his second report, Dr Martin said:

51. [90]

    In relation to whether the accused knew what he was doing, Dr Martin said in his second report:

52. [91]

    Dr Nielssen gave this evidence:

53. [92]

    On the basis of the evidence of Drs Martin and Nielssen, I am not satisfied on the balance of probabilities that the accused did not know the nature and quality of the acts committed by him in assaulting the deceased.

54. [93]

    The next question to be determined is whether the accused knew that what he was doing was wrong. A determination of this question is linked closely with the nexus between his mental illness and his offending. That issue is, in turn, concerned with the relationship between his mental illness and his intoxication, and between the intoxication and the offending.

55. [94]

    In that regard, Dr Martin said in his first report:

56. [95]

    In his second report, Dr Martin said:

57. [96]

    In cross-examination, Dr Martin said:

58. [97]

    Dr Nielssen accepted that the accused’s use of drugs on the day of the offence, particularly the methamphetamine, would have exacerbated his underlying mental illness. In cross-examination, he gave this evidence:

59. [98]

    Dr Nielssen also gave this evidence in response to a question that I asked him:

60. [99]

    The onus is on the accused to prove on the balance of probabilities that it was his mental illness that was responsible for his assault of the deceased. The effect of the medical evidence is that, despite the underlying mental illness, the consumption of the drugs before the assault cannot be ignored in reaching a view about why the accused acted in the way he did. Dr Nielssen said that he was sure the drugs were a contributing factor and he accepted that if the accused had not consumed the drugs the deceased was unlikely to have been attacked.

61. [100]

    Counsel for the accused drew attention to the judgment of Scholl J in R v Meddings [1966] VR 306, and to evidence given by Dr Nielssen which he said highlighted the similarities between what was decided in that case and the present facts. That was the evidence set out at [97] above.

62. [101]

    In Meddings Scholl J said (at 310):

63. [102]

    The issue in Meddings was whether a mental illness defence ought to be left to the jury when it was not sought to be raised on behalf of the accused. The only defence the accused sought to run was one of non-insane automatism.

64. [103]

    What is set out in the passage quoted from the judgment of Scholl J is not a conclusion that, in the circumstances, the accused in that case made out a defence of mental illness. The conclusion was only that there was sufficient evidence to leave the issue of mental illness to the jury and that it ought to be left to the jury notwithstanding that the accused did not ask for it to be left to them. That conclusion was on the basis that the accused suffered from epilepsy and had a predisposition to violent outbursts after the consumption of alcohol. His Honour held that in the circumstances there was a disease of the mind within the M’Naghten Rules. The result was only that the issue of mental illness was left to the jury.

65. [104]

    I accept in the present case that the issue of mental illness has been raised on the facts of this case. I must, as the judge of the facts in the matter, make a determination whether the defence is made out. The decision in Meddings does not advance that exercise.

66. [105]

    Counsel for the accused pointed to evidence given by Dr Martin in cross-examination where he agreed that anger, violence, disinhibition and impaired memory function were associated with schizophrenia. Dr Nielssen disagreed about impaired memory function. The other matters may be accepted. The submission seemed to be that those associated symptoms might occur unrelated to drug consumption and the behaviour that such consumption produces. That can also be accepted. Ultimately, however, where it is known both that the accused had schizophrenia and that he had consumed the drugs in question, it is necessary to determine, if possible, what was the cause of the behaviour. In that regard, the accused has the onus of showing on the balance of probabilities, that it was the schizophrenia.

67. [106]

    Apart from the psychiatric evidence, there is other evidence which bears upon the issue of whether the accused knew the wrongfulness of his acts.

68. [107]

    First, the accused gave evidence before Judge Haesler SC in the District Court on 29 January 2018. This occurred during the course of sentence proceedings in relation to various offences to which the accused had pleaded guilty to committing in January and February 2017. He gave the following evidence:

69. [108]

    His evidence before me was to the same effect. He said that he knew the difference between right and wrong when he was giving the evidence to Judge Haesler, and that it was quite wrong to choke someone. That evidence discloses that less than two weeks before the present offending the accused knew that what he had previously done (which included the attempted choking of another prisoner) was wrong, that he did the acts that led to his prior offending because he had taken ice, that he was hearing voices when he took ice and other drugs, and that the voices stopped when he ceased taking drugs and became medicated. The evidence discloses an insight into his prior offending, not only at the present time, but at a time shortly before the present offending.

70. [109]

    Nevertheless, despite his evidence of knowing these matters, he resumed consumption of ice almost immediately. He gave evidence before me that he had consumed it on three occasion following the sentence hearing before Judge Haesler and prior to the day of the offending.

71. [110]

    Secondly, the accused closed the door of cell 396 during the period he assaulted the deceased. That is an indication that he did not want other persons to see what was occurring, and leads strongly to an inference that he knew that what he was doing or was going to do was wrong.

72. [111]

    Thirdly, in a telephone call from the gaol to his mother on 16 February 2018 he told his mother, “They got me on a murder blue”. His mother said, “Yeah but you didn’t do it”, to which he replied “Nah”. A little later, the following was said (where V2 is the accused and V3 is his mother):

73. [112]

    In fact, the accused had seen a psychiatrist from Justice Health, Dr Nguy, on 12 February 2018. Amongst the things recorded by Dr Nguy in the notes he made were the following:

74. [113]

    It can be noted that the accused did not tell Dr Nguy that he could not remember what happened on the day in question. Rather, there are denials of contact with the deceased, and what is a fairly transparent lie that the deceased hanged himself. The lies and statements to the accused’s mother and Dr Nguy indicate a knowledge of the events and suggest that the accused knew that what had been done to the deceased was wrong.

75. [114]

    Finally, the attack on the deceased must have been sustained and prolonged for him to have suffered the injuries that he did. This was not a fleeting event such as a shooting or a stabbing where an assailant with mental illness problems might not realise until too late that what he had done was wrong.

76. [115]

    The principal problem for the accused is establishing on the balance of probabilities that the killing of the deceased was brought about by the accused’s mental illness and not as a result of his ingestion of the drugs. Two things in particular show that the accused has failed to discharge his onus. First, his evidence both to Judge Haesler and at the present trial was that since he had been medicated with Zyprexa and Avanza the voices he had been hearing had stopped. This was also what he told the psychologist Emma Hubner on 2 December 2017. This was some indication that his schizophrenia was reasonably well controlled at the relevant time. Secondly, at the same time, he gave evidence in the present trial that he knew that if he took ice he would or could get violent because that was what had happened previously.

77. [116]

    Those two matters point strongly to a conclusion that the cause of the offending was not the underlying schizophrenia but the ingestion of the drugs. I accept that the Justice Health notes of 15 and 17 February 2018 note that the accused claimed to be hearing voices. However, on 12 February 2018, only three days after the offending, he told Dr Nguy and another person separately that he was experiencing no psychotic symptoms. The accused’s own perception disclosed by his evidence to Judge Haesler and at the present trial that the voices stopped when he was medicated and that they returned when he consumed ice is of some significance.

78. [117]

    When the Crown Prosecutor put to Dr Nielssen:

79. [118]

    Because the onus is on the accused to establish the mental illness defence, it is his responsibility to show that it was the mental illness rather than the drugs that was operating on his actions. For the reasons just given, the evidence points the opposite way. I am not satisfied that he has discharged that onus.

80. [119]

    Even if the mental illness was a contributing factor, the further evidence to which I have referred shows that the accused has not discharged the onus of showing that he did not know that what he did was wrong.

81. [120]

    Accordingly, the accused fails to demonstrate on the balance of probabilities that it was the underlying mental illness that was responsible for the assault on the deceased.

(3) Was the act done with the specific intention required?

1. [121]

   This element arises because the defence of mental illness has not been established. The intention required is to kill the deceased or to inflict really serious injury on him. The Crown must prove this intention beyond reasonable doubt.

2. [122]

   The accused said that he had taken 0.1g of methamphetamine at about 8.30am on the morning of the offending. He said that it was strong. That was followed soon after by 5 Xanax tablets, taken all at once. I considered the mental illness defence on the assumption that this evidence was true. Given that the psychiatrists based their opinions on that evidence being true, I had to make that assumption. However, on the present issue of whether the accused had the requisite intention, I need to make a finding about that evidence, notwithstanding that the Crown accepted it.

3. [123]

   As a judge of the facts, I am entitled to accept part but not all of a witness’s evidence, including the evidence given by the accused.

4. [124]

   I consider that, generally speaking, the accused was a straightforward witness. However, in relation to his evidence concerning his memory of the events of the day of the offending, I found him less than impressive. I can accept, on one level, that a person with his cognitive and intellectual limitations might say that something did not happen because he cannot remember that it happened. However, a consideration of the phone call to his mother of 16 February, what he told Dr Nguy, and his demeanour in the witness box, which changed significantly when he was being pressed by the Crown Prosecutor about what he said to his mother and Dr Nguy, leads me to the view that he was not altogether honest in that regard.

5. [125]

   In coming to that view, I do not overlook the evidence of Dr Martin that one of the side effects of Xanax is that it prevents the laying down of memories whilst it is operating on the person who has consumed it. He gave evidence that it would not be surprising if the accused said that he could not remember what had occurred after he consumed the five Xanax tablets. I did not take Dr Martin to be saying that in all cases a person would have no memory of acts done after consuming Xanax.

6. [126]

   Nevertheless, his evidence has been consistent about his consumption of drugs on the day whenever he has been asked. There is sufficient evidence that he was addicted to methamphetamine at the time. He had been regularly using when in the community in 2016 and early 2017. He had been consuming it in custody whenever possible up to the time of the present offending. His only discernible reason for lying about his drug ingestion on the day of the offending could be to give himself some sort of excuse for his offending. There is no evidence suggesting that motivation. I accept his evidence that he consumed the drugs in question.

7. [127]

   I said earlier that the Crown accepted that the accused had consumed the drugs. However, the Crown did not accept that the accused was so intoxicated that he could not form the requisite intention. Both psychiatrists gave evidence about that matter.

8. [128]

   I have already set out Dr Martin’s evidence about this matter in a different context but it is convenient to set it out again. In his second report he said:

9. [129]

   Dr Nielssen said in his second report:

10. [130]

    Dr Nielssen was cross-examined about that statement, and he gave this evidence:

11. [131]

    With great respect to the cross-examiner, I am not sure that Dr Nielssen understood the distinction that the cross-examiner was intending to make between a deliberate (or purposeful) act and an intention in carrying out that act (two separate elements of the offence of murder). I do not think Dr Nielssen’s answer indicated that he departed from the opinion expressed in his report.

12. [132]

    In any event, the evidence of Dr Martin appears to me to raise a serious doubt about whether, because of disinhibition from the potent combination of the drugs, the accused had the capacity to form the required intent. The matter was not taken further in Dr Martin’s oral evidence.

13. [133]

    I do not think I can place much significance on what the accused was heard to say shortly before the offending. He was in the same state of intoxication at that time as he was when he assaulted the deceased. What was said, accompanied by the clenched fists above the head, only tends to emphasise that the accused was not acting rationally.

14. [134]

    The Crown submitted that s 428C(2) of the Crimes Act was relevant. The Crown pointed to the evidence the accused gave that he knew that consuming ice would make him become violent.

15. [135]

    The onus is on the Crown to prove either of the matters in s 428C(2). Even accepting the accused’s evidence about his knowledge of what consuming ice would or might do, the important words in the subsection are “to do the relevant conduct”. The “relevant conduct” here is the assault of the deceased.

16. [136]

    It is of some significance that, as the accused told Dr Nguy, there was no history of animosity towards the deceased, nor of prior problems between the accused and the deceased. It can be observed from the CCTV footage that nothing occurred between them before the offending. That points to some irrationality about the attack which bears on the question of intention as well as on the matter arising under s 428C(2).

17. [137]

    There is no evidence of any specific reason why the accused consumed the ice and the Xanax, certainly no reason referable to the deceased. The Crown fails to establish any resolve on the part of the accused as is referred to in s 428C(2).

18. [138]

    In the light of the evidence of the two psychiatrists, I cannot be satisfied beyond reasonable doubt that the accused was capable of forming the requisite intention by reason of his self-induced intoxication with the drugs. The result is that the Crown fails to prove one element of the offence of murder, that is, that when the accused assaulted the deceased he had the intention to kill the deceased or to inflict really serious injury on him.

Manslaughter

1. [139]

   It is necessary, then, to consider if what the accused did to the deceased constitutes manslaughter. There are four elements, relevantly, to manslaughter. They are:

2. [140]

   I note that s 428E(1)(a) of the Crimes Act prevents me from taking into account evidence of intoxication in determining whether the accused had the requisite mens rea for manslaughter. I have already found that the first two elements of manslaughter have been made out. I find also beyond reasonable doubt that the assault by the accused on the deceased was unlawful. I find also, beyond reasonable doubt, that a reasonable person in the position of the accused would have realised that both the choking and the acts which brought about the blunt force injuries exposed the deceased to a significant risk of serious injury. I note, as part of that assessment, that the “reasonable person” is not intoxicated: s 428F Crimes Act. Accordingly, the Crown has proved beyond reasonable doubt the elements of the offence of manslaughter.

Substantial impairment

1. [141]

   Although not strictly necessary to do so, I will say something briefly about the partial defence of substantial impairment because submissions were made concerning it. This defence needs only to be considered if and when all of the elements of murder have been made out.

2. [142]

   The law provides that a person who would otherwise be guilty of murder is not to be convicted of that offence, but is to be convicted of the offence of manslaughter, if (at the time of the act causing the death concerned) his capacity either to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an “abnormality of mind” arising from an underlying condition; and furthermore, that that impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

3. [143]

   The onus of proof of substantial impairment is on the accused on the balance of probabilities. It is a “partial defence” because, if it does succeed, then the appropriate verdict is “not guilty of murder but guilty of manslaughter”.

4. [144]

   Although much of the evidence relevant to a consideration of the mental illness defence is also relevant to a consideration of the defence of substantial impairment, the result of a consideration of that evidence will not necessarily be the same. The distinction was identified by Kirby J in R v Jennings [2005] NSWSC 789 who said at [29]:

5. [145]

   In R v Eyuboglu (No 2) [2019] NSWSC 285, Button J found that the defence of mental illness was not made out because he was not satisfied on the balance of probabilities that the accused did not appreciate the wrongfulness of what he was doing at the time. His Honour then went on to consider the partial defence of substantial impairment. He set out the elements of that defence that had been established when he considered the defence of mental illness. They were, first that the accused suffered from an abnormality of the mind and, secondly, that it arose from an underlying condition being schizophrenia.

6. [146]

   His Honour then said at [61]:

7. [147]

   Those cases make clear that the threshold for establishing substantial impairment is lower than the threshold for establishing mental illness.

8. [148]

   In relation to the defence of substantial impairment, Dr Martin said this in his first report:

9. [149]

   In his second report, Dr Martin said:

10. [150]

    In his second report Dr Nielssen expressed his opinion about the defence of substantial impairment. He said:

11. [151]

    I must disregard the effects of the accused’s self-induced intoxication for determining whether the accused is not liable to be convicted of murder by virtue of s 23A. To conclude that the accused has demonstrated substantial impairment I must find that the accused’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself was substantially impaired. I must also find that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

12. [152]

    For similar reasons for my finding on the defence of mental illness, I find that the accused has failed to prove this defence on the balance of probabilities. I find that he did understand the events, that is, his assault on the deceased. In relation to his capacity to judge whether his actions were right or wrong, or to control himself, the failure of the accused to prove that it was not the self-induced intoxication that impaired his capacity in respect of both those matters means that he fails to discharge his onus. Certainly, the accused does not prove that any impairment in relation to those matters arising from his underlying mental illness was substantial.

13. [153]

    Further, if I had reached the view that there was substantial impairment, I would not have found that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. In that regard, I first have regard to what Hamill J said in R v Hutchison & Wilkinson [2018] NSWSC 1759 at [46]:

14. [154]

    Secondly, in circumstances where the accused knew that the voices he heard came when he consumed ice, and when he knew that ice made him violent, I could not, in making the evaluative judgment required for s 23A(1)(b), find that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Conclusion

1. [155]

   Having rejected the defence of mental illness, having not been satisfied of all of the elements of murder but having been satisfied of all of the elements of manslaughter, I will deliver my verdict:

2. [156]

   Mervyn Keith Davidson, also known as Mervyn Keith Davison, on the indictment alleging that you murdered Alfredo Pengue on 9 February 2018, I return a verdict of not guilty to murder but guilty of manslaughter.