R v Khan (No 3)

The accused in this matter has pleaded not guilty on the grounds of mental illness to a charge of committing a terrorist act, namely the stabbing of Wayne Greenhalgh. The fact that Mr Greenhalgh was stabbed by the accused with a knife that he (the accused) had purchased, is not in dispute. The sole issue for the jury's determination centres upon the mental state of the accused at the time of the stabbing. To that end, both the Crown and counsel for the accused will call expert psychiatric evidence.

As part of the brief of evidence, the Crown served a statement of Detective Senior Constable Allan Cavan upon those acting for the accused. Counsel for the accused wishes to elicit the contents of two particular paragraphs of that statement, to which the Crown objects.

The first paragraph is para 7 which is in the following terms (excluding a particular portion that counsel for the accused does not wish to elicit):

The second paragraph is para 9 which is in the following terms:

It is apparent that the accused's mother has since passed away. It should also be noted that the statement of Detective Senior Constable Cavan was prepared in the context of an investigation of the accused for an alleged assault.

It was submitted by counsel for the accused that para. 7, at least insofar as it refers to two previous incidents involving the accused, was relevant to his mental state. Although those incidents had occurred in 2013 and 2014 (and thus well prior to the date of the present alleged offence) counsel pointed out that the accused's history of mental illness dating back to 2013 necessarily formed a part of the psychiatric history on the basis of which various experts had expressed their opinion. Counsel submitted that in this way, the evidence of the previous incidents disclosed in para 7 was clearly relevant to the primary fact in issue, namely, the accused's mental state at the time of his offending.

In terms of para 9, counsel for the accused submitted that both the opinions expressed by the accused's mother, and her observations of the accused's behaviour, went to the mental illness issue that I have identified. In this regard, counsel relied specifically on the provisions of s 65(8) of the Evidence Act 1995 (NSW).

The Crown's position in relation to the contents of para 7 was firstly, that it was necessary for the evidence to be placed in its proper context. It was submitted that it was clear that the police were investigating an alleged assault by the accused and that anything said by his mother at that time would necessarily have favoured the accused's position. The Crown further submitted that in any event, the contents of para 7 could be elicited by counsel for the accused through cross-examination of the Officer-in-Charge, Detective Schiavello.

As to the contents of para 9, it was the Crown's submission that the opinions expressed by the accused's mother were simply inadmissible and that to the extent that her observations of the accused's behaviour may be admissible, such evidence ought be excluded pursuant to s 135(b) of the Evidence Act on the basis that it was misleading and/or confusing.

In terms of para 7, the Crown's position is a little curious. It appeared that the Crown objected to the evidence being elicited through Detective Senior Constable Cavan, but had no objection to it being elicited from another source. It seems to me that evidence of those previous incidents involving the accused is clearly admissible, and relevant to the one and only issue in this trial. Those matters of context upon which the Crown relied go, in my view, to weight rather than admissibility.

Accordingly, to the extent that para 7 recounts incidents in 2013 and 2014, that evidence should be admitted.

Para 9 is more problematic. The contents of the paragraph, in a general sense, fall into two categories, namely:

In my view, representations made by the accused's mother as to her observations of the accused's behaviour are relevant and admissible. Fundamentally, the opinions to be expressed by the psychiatrists who are to give evidence in this case are based upon the accused's psychiatric history. The observations of his mother form part of that history and are relevant to that issue.

However, I have reached a contrary view in relation to the opinions expressed by the accused's mother as to his mental state. The accused's mother would not be qualified to give evidence (for example) that the accused was suffering from "religious-based obsessive compulsive disorder as well as schizophrenia". Similarly, she would not be qualified to give evidence that the accused "prays more than required based on their Muslim religion". Even if that were somehow relevant, there is no link between that fact (if it be the fact) and the accused's mental state. It is the opinions of the psychiatrists which are relevant, admissible and material. In the absence of the necessary qualifications, s 65(8) does not make the evidence admissible.

I will allow such part of para 9 into evidence as reflects representations made by the accused's mother as to her observations of the accused's behaviour. I will reject anything over and above that including, in particular, any expression of opinion or opinions which appear in that paragraph.