R v Fineanganafo (No 1)

1. [1]

   The accused is charged with six offences committed on 13 and 14 April 2023. The offences charged are these:

2. [2]

   The accused was committed for trial to this Court on all the charges because of the murder charge. On 5 April 2024 he was arraigned before Wilson J. He pleaded not guilty to all counts and the matter was fixed for trial by jury on 4 November 2024 to be presided over by me.

3. [3]

   At directions hearings leading up to the trial both Wilson J, then the Criminal List Judge, and I were informed that the accused suffered from mental health issues. Arrangements were made for pre-trial issues relating to the accused’s mental health issues to be dealt with in the first week set aside for the trial. Psychiatric reports were to be obtained by both parties and consideration was to be given whether, at least in relation to the charge of murder, reliance would be placed by the accused on s 23A of the Crimes Act 1900 (NSW) to demonstrate substantial impairment or whether an enquiry under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) would be sought in relation to all charges.

4. [4]

   On 4 November 2024 I was informed that the parties agreed, in terms of s 31, that the proposed evidence established a defence of mental health impairment. An application was made to the Court under that section for an enquiry to be held before a jury was empanelled. This judgment is a consideration of the evidence to ascertain whether the defence of mental health impairment is established. It needs to be stressed that this is not a judge-alone trial. If I do not find that the defence of mental health impairment is established, the matter will proceed to a trial before a jury. If I find that the defence of mental health impairment is established then I may enter a special verdict of acts proven but that the accused is not criminally responsible.

Legislation

1. [5]

   The Act relevantly provides:

2. [6]

   Section 4 of the Act defines “Mental health impairment” as follows:

Legal principles

1. [7]

   The procedure in relation to an enquiry under s 31 was discussed by Johnson J in R v Jackson [2021] NSWSC 1404 as follows:

The offending

1. [8]

   For the purposes of this enquiry, the accused, on the advice of his lawyer, has agreed with the Crown upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):

2. [9]

   Jordan Fineanganofo (the accused) was born on 17 May 2001 in Sydney.

3. [10]

   The accused is the youngest son of Vika and Toketa Fineanganofo.

4. [11]

   The accused resides with his parents in the family home at 49 Halifax Way, Raby. Also living at the address are the accused’s siblings, John-Victor, Jacquelin, and her husband, Peato Halahifi.

5. [12]

   Shortly after noon on 13 April 2023, the accused drove away from his home address in Toketa Fineanganofo’s blue Honda Jazz, NSW registration AZL57N (“the blue Honda Jazz”). He drove to Bunnings Warehouse located on Blaxland Road, Campbelltown and parked in the underground carpark.

6. [13]

   The accused exited the car and went into the store. He had a knife in his front right pants pocket.

7. [14]

   Inside the store, the accused purchased a length of rope.

8. [15]

   After purchasing the rope, he walked into a nearby elevator that allows access to the underground carpark. Initially the accused was alone in the elevator. However, as the elevator doors began to close, Lavinia Simpson (a customer of Bunnings) tried to enter the lift whilst pushing her 5-month-old son in a pram.

9. [16]

   As Ms Simpson approached the lift the accused blocked her from entering it by deliberately standing in the centre of the doorway.

10. [17]

    Ms Simpson looked at the accused and noticed that he had a blank look on his face. The accused said “get the fuck out”.

11. [18]

    Ms Simpson tried to manoeuvre the pram around the accused at which point the accused said “get the fuck out” and pushed the front of the pram sideways so that it was no longer facing the lift.

12. [19]

    The accused said “get the fuck out, I’m taking this lift” at which point his facial expression went from blank to angry.

13. [20]

    Ms Simpson took a few steps backwards at which point the accused closed the lift door and travelled down to the underground car park.

14. [21]

    As the lift was going down the accused laughed and stuck his middle finger up at Ms Simpson who could still see him through the glass doors of the lift.

15. [22]

    Ms Simpson went back into the store and reported the incident to the Bunnings Store Manager, Debbie Easton. Ms Simpson was scared and needed to be chaperoned to her car.

16. [23]

    After the incident involving Ms Simpson, the accused walked back towards the blue Honda Jazz. As he approached it, he took out his knife from his front right pants pocket and caused damage to a parked Mitsubishi car with NSW registration CY80NH.

17. [24]

    The car belongs to woman by the name of Jamie Howe. At the time, Ms Howe was inside the nursery area of Bunnings with her mother and two young children.

18. [25]

    The accused damaged the car by deliberately running the blade of his knife along the boot and driver’s side doors so as to cause a number of long deep scratches to each of the panels.

19. [26]

    Later, Ms Howe returned to the car park and immediately noticed the damage. She reported the matter to Ms Easton.

20. [27]

    Ms Easton reported the incidents to police later that day.

21. [28]

    Shortly before 4am on 14 April 2023, the accused drove away from his home address in the blue Honda Jazz.

22. [29]

    At about 4:20am Phillip Appleyard drove away from his home address in a white work utility car bearing NSW registration BGF39R. He drove to the 7 Eleven Service Station, Ingleburn.

23. [30]

    During this trip, whilst driving along Ben Lomond Road, Minto, the accused drove up behind Mr Appleyard and began flashing him with his headlights.

24. [31]

    The accused then followed Mr Appleyard’s car all the way to 7 Eleven, Ingleburn. As he followed Mr Appleyard, the accused beeped his horn and repeatedly flashed his headlights.

25. [32]

    Mr Appleyard drove into 7 Eleven, Ingleburn and parked his car at bowser #1. This is the bowser nearest the night counter window at the service station.

26. [33]

    The accused followed closely behind Mr Appleyard and parked the Blue Honda Jazz at bowser #3, directly behind Mr Appleyard’s car.

27. [34]

    At about 4:44am Mr Appleyard got out of his car and walked towards the entry doors of the 7 Eleven. At about the same time, the accused got out of the blue Honda Jazz and walked towards Mr Appleyard. The accused was armed with a knife in his right hand.

28. [35]

    The accused walked towards Mr Appleyard with the knife in his right hand and pushed Mr Appleyard in the chest with his left hand. Mr Appleyard said “Fuck off, don’t touch me. I don’t even know you!”. The accused said “You’re a man. You’re a man”. Mr Appleyard then noticed that the accused was armed with a knife and backed away from the accused.

29. [36]

    The accused pursued Mr Appleyard at a walk. He repeatedly said to Mr Appleyard “You’re a man. You’re a man”. Mr Appleyard continued to retreat away from the accused who was still armed with the knife. At some point the accused spun the knife around in his hand and put it into his right pants pocket.

30. [37]

    Mr Appleyard eventually decided to run away from the accused. By this point he had already been pursued out of the service station and across the road. Mr Appleyard ran behind a nearby school and called the police.

31. [38]

    When Mr Appleyard ran away, the accused stopped pursuing him and walked back towards the service station.

32. [39]

    As he walked back into the grounds of the service station, the accused struck a car that was stopped at the service station exit on Oxford Street. Driving the car was a male by the name of John Ince. Mr Ince was preparing to exit the service station when the accused struck his car.

33. [40]

    The accused then opened the front passenger side door of Mr Ince’s car. Mr Ince asked the accused three times, “What’s up mate?”. The accused didn’t answer but laughed in what Mr Ince describes as a “sadistic laugh”. The accused then leaned into Mr Ince’s car at which point Mr Ince, fearing for his safety, put his foot on the accelerator and drove away from the area.

34. [41]

    The accused then walked towards the bowsers. At about 4:49am the accused walked up to Mr Appleyard’s car that was still parked at bowser #1. He opened the driver’s door and stole Mr Appleyard’s “Billabong” brand cooler bag that was on the front passenger seat. The bag contained 3 two-way radios and some bills addressed to Mr Appleyard.

35. [42]

    The accused then got back into the driver’s seat of the blue Honda Jazz and drove towards the service station exit on Cumberland Road. As he approached the exit, another car entered the service station from Cumberland Road. The driver of that car was a man by the name of Jamie Ross.

36. [43]

    As he passed the blue Honda Jazz, Mr Ross met eyes with the accused and they looked at each other. The accused yelled “Fuck you” to Mr Ross. Mr Ross drove into the service station and parked at bowser #6. Mr Ross got out of his car and looked towards the accused. The accused was looking at Mr Ross and said “You wanna fight”. Mr Ross said “Nah man, it’s all good, have a nice day”.

37. [44]

    Mr Ross then walked towards the front doors of the 7 Eleven at which point the accused reversed the blue Honda Jazz a few metres before coming to a stop just before the exit onto Cumberland Road.

38. [45]

    The accused then got out of the Blue Honda Jazz and walked towards the front doors of the 7 Eleven. By the time he arrived at the front doors, Mr Ross was already inside the store. Upon Mr Ross entering the store, the 7 Eleven attendant locked the front doors to prevent the accused from entering.

39. [46]

    The accused banged on the front door and mouthed something that could not be heard by Mr Ross. The accused grinned and nodded as he did this. Mr Ross described the accused as having “an angry smirk on his face”.

40. [47]

    The accused was at the front door for slightly less than two minutes before he walked back to the blue Honda Jazz, got inside and drove onto Cumberland Road, initially heading north-east and away from the service station.

41. [48]

    On 14 April 2023, Mr Jaspreet Singh was working as a delivery driver for Nonna’s Bakery. He was driving a white Ford Transit Van with NSW registration EBY11U.

42. [49]

    Shortly after 5am, the accused drove the blue Honda Jazz up behind Mr Singh’s van on St Andrews Road, Raby. The accused began following Mr Singh’s van, repeatedly flashing his high beam lights at him.

43. [50]

    Mr Singh turned left onto Spitfire Drive, Raby. Not knowing why the accused was flashing his lights at him, Mr Singh assumed there was an issue with his vehicle so he pulled over to the side of the road on Spitfire Drive, at which point the accused also pulled over to the side of the road.

44. [51]

    Mr Singh got out of his car and inspected it to see if anything was wrong. The accused walked towards Mr Singh. The accused was holding a knife in his right hand which he had held up behind his back, concealing it from Mr Singh’s line of sight. As he walked towards Mr Singh, the accused said “Are you all right”? Mr Singh responded, “Yes”.

45. [52]

    The accused continued walking towards Mr Singh until he was no more than one metre away from Mr Singh at which time the accused raised the knife above his head and brought it down towards Mr Singh.

46. [53]

    Mr Singh saw the accused lift the knife above his head and as the accused brought the knife down Mr Singh pushed the accused to the chest.

47. [54]

    The knife struck Mr Singh on the left side of his chest piercing the puffer jacket that he was wearing but not the jumper underneath. The knife did not make contact with Mr Singh’s skin.

48. [55]

    Mr Singh fell backwards onto the road.

49. [56]

    The accused then got into Mr Singh’s van and sat in the driver’s seat. The accused then picked up Mr Singh’s iPhone. Mr Singh saw this and pleaded with the accused “Please don’t do this. You can get what you want but please give my phone back”.

50. [57]

    The accused looked and Mr Singh, smiled and put Mr Singh’s iPhone down. He then got out of the van and walked towards Mr Singh. Mr Singh backed up. The accused got within about two metres of Mr Singh at which time he held the knife out towards Mr Singh and waved it around. Mr Singh describes the accused as having a “calm” look on his face while he waved the knife around. Mr Singh thought he was going to be stabbed. The accused did not say anything while he was doing this.

51. [58]

    The accused then stopped walking towards Mr Singh and instead walked to the blue Honda Jazz and got inside it. Mr Singh ran to his van, got inside it and drove away. The accused did not follow Mr Singh any further.

52. [59]

    The accused drove in a southerly direction on Spitfire Drive before turning right onto Sunderland Drive, Raby at about 5:09am.

53. [60]

    Between about 5:10 and 5:15am the accused stopped the blue Honda Jazz at a red light at the intersection of Raby Road and Spitfire Drive. When the light went green, the accused remained stationary for some time. The cars behind the accused repeatedly beeped their horns in an effort to get the accused to move forwards. Eventually, traffic manoeuvred around the accused.

54. [61]

    The accused then began following one of the cars that had manoeuvred around the blue Honda Jazz. The accused flashed his lights at the car and beeped his horn. He followed it along Campbelltown Road until they reached the intersection of Campbelltown Road and Rose Payten Drive, Minto. When they reached the intersection, the other car turned right onto Rose Payten Drive and the accused continued in a southerly direction along Campbelltown Drive.

55. [62]

    Steven Tougher (the deceased) was a Paramedic employed by NSW Ambulance.

56. [63]

    At about 7:45pm on 13 April 2023 the deceased commenced a shift with his rostered partner, Nateisha Allison at Camden Ambulance Station.

57. [64]

    The deceased was the driver for the shift and Ms Allison was the treating paramedic. They attended various jobs throughout the night driving marked Ambulance 1810.

58. [65]

    At about 5:11am the deceased drove the Ambulance into the Campbeltown McDonalds carpark located on Queen Street, Campbelltown.

59. [66]

    Ms Allison and the deceased went into the McDonalds Restaurant and they each placed an order for food. They each received their orders and returned to the Ambulance at about 5:21am.

60. [67]

    Ms Allison sat in the front passenger seat, closed the door behind her and began eating her food.

61. [68]

    The deceased placed his food on the front driver’s seat and stood outside the Ambulance within the front driver’s door which was ajar. He then began eating his food.

62. [69]

    At 5:26am, the accused drove into the McDonalds carpark on Queen Street in Campbelltown. He then parked the blue Honda Jazz in the parking space closest to the driver’s side of the Ambulance. As the accused manoeuvred into the parking space he beeped his horn at the deceased.

63. [70]

    After bringing the blue Honda Jazz to a stop, the accused got out and went to the rear of the car at which time he opened the boot. He then went to the passenger side of the car and opened the rear passenger side door. The accused was armed with a knife.

64. [71]

    The accused then approached the deceased and without saying anything, drew his attention towards him. The accused then began stabbing the deceased with the knife.

65. [72]

    The deceased said, “What are you doing?” and “Stop stabbing me mate”. The deceased tried to defend himself by pushing the accused away but he could not. The deceased could not do anything to escape because he was trapped between the Ambulance door and the accused.

66. [73]

    The accused stabbed the deceased no less than five times before the deceased fell to the ground.

67. [74]

    The accused then continued stabbing the deceased whilst he lay prone on the ground.

68. [75]

    Ms Allison called for assistance over the Ambulance radio.

69. [76]

    At one point Ms Allison tried to pull at the accused in an effort to assist the deceased. Her efforts were ineffectual so she ran back into the McDonalds to seek help.

70. [77]

    At about this time, a man by the name of James Arthur ran over to the accused and tried to help the deceased. He yelled “Stop, Stop” as loud as he could. He then kicked the accused a number of times in an effort to get him to stop attacking the deceased. Mr Arthur yelled at the accused “Stop, stop, stop… you’re going to kill him” and “Fucking leave him alone”.

71. [78]

    The accused did not stop stabbing the deceased at this point.

72. [79]

    Another man by the name of Daniel Nia approached the accused and put the accused in what he described as a “bear hug”. This caused the accused to stop stabbing the deceased. Mr Nia then noticed the accused was armed with a knife and so he walked away from the accused.

73. [80]

    The accused, having stopped stabbing the deceased for the time being, then walked to the back of the blue Honda Jazz and closed the boot. He then paced around in that area for a brief period of time.

74. [81]

    During that period of time, the accused said, “I want to die”. He also walked back towards the deceased at which point a man by the name of Tuli Lugai yelled at the accused “No, don’t. Don’t do it, no”. The accused said, “I’m going to jail anyway, I may as well kill him” and/or “I gotta to kill him because I gotta go to jail.”

75. [82]

    Shortly after this, the accused said to the deceased “Say you’re sorry to me, say you’re sorry to me”. The deceased, who was still conscious, said “I’m sorry mate, for whatever you think I’ve done”.

76. [83]

    The accused then resumed stabbing the deceased who remained laying prone on the ground. The accused screamed “I’m going to fucking kill you, I’m going to fucking kill you”.

77. [84]

    The accused intended to kill the deceased.

78. [85]

    At some point the accused stopped stabbing the deceased. On at least one further occasion, he threatened to continue stabbing the deceased but did not.

79. [86]

    The period of time between the first stabbing and the last was about 3 minutes and 47 seconds.

80. [87]

    After he stopped stabbing the deceased, the accused remained in the area, moving backward and forward between the rear of the blue Honda Jazz and where the deceased laid. During this period of time, another NSW Ambulance arrived at the location at approximately 5:33am.

81. [88]

    At approximately 5:34am police arrived at the location and tried to negotiate with the accused to drop the knife he was still holding. The accused didn’t say anything to police and refused to drop the knife.

82. [89]

    Police then detained the accused by force. The deployment of a police taser was necessary in order to subdue the accused. The accused did not let go of his knife until he was tasered by police and brought to the ground.

83. [90]

    The knife was later seized by police.

84. [91]

    While the Police were trying to negotiate with the accused, NSW Ambulance officers secured the deceased and began attending to him. The deceased was transported by Ambulance to Liverpool Hospital. En route to Liverpool Hospital the deceased suffered cardiac arrest and died. Ambulance officers and hospital staff tried to resuscitate the deceased for next 1 hour and 40 minutes with no success. Further resuscitative efforts were terminated.

85. [92]

    On 18 and 19 April 2023, Dr Jennifer Pokorny (Pathologist) conducted an autopsy of the deceased and confirmed the cause of death to be the result of multiple stab wounds.

86. [93]

    In total Dr Pokorny identified at least 55 stab wounds and 20 incised wounds including to the following areas:

87. [94]

    The knife used by the accused at 7-Eleven, Ingleburn; Spitfire Drive, Raby; and at the McDonalds Carpark, Campbelltown was the same knife, namely a kitchen knife approximately 28.5cm in length with a 15.5cm blade.

The accused’s background

1. [95]

   The accused had a psychiatric history that predated these offences. For an offence of assault against a neighbour in May 2021, a magistrate made an order under s 14 of the Act discharging the defendant on condition that he engaged in mental health treatment for 12 months. An assessment subsequently at Campbelltown Hospital considered that the accused was psychotic and required involuntary admission. His mother informed a nurse who assessed him that he had been isolating in the house for a year and had become increasingly paranoid of others including family members. She said he had been responding to possible auditory hallucinations. It was concluded that this constituted his first episode of psychosis.

2. [96]

   Following his arrest for the present offences the accused was assessed by Dr Gerald Chew, a consultant psychiatrist at Justice Health and Forensic Mental Health Network, for the magistrate before whom the accused came in September 2023. Dr Chew noted the accused’s first episode of documented psychosis in 2021 at the time of the earlier assault charge. He noted that the accused had 12 months of Court ordered treatment, and that he was started on Aripiprazole 400mg long acting depot and also Acuphase, both anti-psychotic drugs used to treat schizophrenia and mania. When he was discharged from the Macarthur Youth Team in November 2022 he ceased compliance with his treatment including his medication.

3. [97]

   Dr Chew diagnosed the accused as suffering from a chronic severe psychotic mental illness with the most likely diagnosis being schizophrenia. Dr Chew said that the accused was a mentally ill person within the meaning of s 14 of the Mental Health Act 2007 (NSW). Dr Chew was also of the opinion that the accused was acutely psychotic at the time of the present offences.

4. [98]

   When assessed by Justice Health on 14 April 2023 after his arrest, a PACER MH Current Assessment disclosed:

Expert reports

1. [99]

   Subsequently reports have been prepared by the psychiatrists Dr Kerri Eagle for the Director of Public Prosecutions, and Dr Olav Nielssen for the accused.

2. [100]

   Those psychiatrists are in agreement as to the accused’s mental health impairment and in their assessment of the accused generally. Both Dr Eagle and Dr Nielssen are very experienced forensic psychiatrists.

Does the accused suffer from a mental health impairment?

1. [101]

   Both psychiatrists considered that the accused had a mental health impairment at the time the offences were committed.

2. [102]

   Dr Eagle said:

3. [103]

   Dr Nielssen diagnosed the accused as suffering from Persistent Psychotic Illness (schizophrenia) and went on to say:

Did the accused know that his acts were wrong?

1. [104]

   Both psychiatrists were of the view that the accused understood the nature and quality of his acts but did not know that the acts were wrong. With regard to the latter conclusion, s 28(1)(b) of the Act explains what it means that a person did not know that their act was wrong – “the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong”.

2. [105]

   Dr Eagle said:

3. [106]

   Dr Nielssen said:

4. [107]

   It will be observed in the agreed facts that a witness to the stabbing of Mr Tougher, reported that the accused said to him, “I’m going to gaol anyway, I may as well kill him” or, “I’ve gotta kill him because I’ve gotta go to gaol”. The witness’s recollection was, initially, that the first of those statements was said by the accused. A report was sought from each of the psychiatrists about whether such utterance from the accused, if found to have been made, provided an indication that he knew his actions were wrong.

5. [108]

   Dr Eagle in her supplementary report of 30 August 2024, said this:

6. [109]

   Dr Nielssen said in a supplementary report of 3 October 2024:

7. [110]

   The witness later recollected that the accused may instead have said the second of the statements set out at [107], namely, “I’ve gotta kill him because I’ve gotta go to gaol”. A further report was sought from Dr Eagle asking if her opinion changed if the Court found that this different statement was made. In a report of 25 October 2024, Dr Eagle said:

Conclusions

1. [111]

   In addition to the Agreed Facts, I have viewed two DVDs which contain CCTV footage of the events constituting counts 1, 2, 3, 4 and 6. I am satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offences in counts 1 to 6.

2. [112]

   Although both Dr Eagle and Dr Neilssen agree that the accused suffers from a mental health impairment, schizophrenia, in the way set out in s 28(1)(b) of the Act, the Court is not bound to accept those opinions. In Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Emmett JA said:

3. [113]

   Justice R A Hulme and Bellew J quoted with approval what had been said in R v Iusi Afele [2014] NSWSC 366 at [68]:

4. [114]

   In R v Siemek (No 1) [2021] NSWSC 1292 Johnson J said:

5. [115]

   In my opinion, there is no evidence that casts any doubt on the opinion of the psychiatrists that the accused suffered from a mental health impairment. I accept their opinions and find that the accused was suffering from a mental health impairment at the time he carried out the physical acts constituting counts 1 to 6.

6. [116]

   The psychiatrists both hold the opinion that the accused did not know his acts were wrong. It is necessary, however, to consider what the witness remembered the accused saying at the time of the stabbing of Mr Tougher. It may be accepted that whichever of those remarks (set out at [107] above) was made it might lead to a conclusion that the accused knew that what he was doing was wrong.

7. [117]

   However, both psychiatrists had the first of those remarks specifically drawn to their attention with a request for a further assessment on the issue of whether the accused knew that what he was doing was wrong. In the case of Dr Eagle a separate report was sought in case it was found that the second of the remarks was made rather than the first. The supplementary reports of the psychiatrists explain why they did not change their opinion notwithstanding the making of the first of those remarks. Their explanations were the same, namely, that the accused was grossly impaired in his capacity to think and reason in a logical way.

8. [118]

   Although Dr Nielssen has not been asked for a supplementary report in the event that it was found that the second of the remarks was made, I do not think that this changes anything. The substance of the second of those remarks did not differ from the former of the remarks in the context of considering whether the accused knew that his actions were wrong. If anything, the latter remark suggests less of a realisation of wrongdoing, and more that he was compelled to do something. This may hark back to what was noted in the PACER assessment that he acts on the voices he hears and is unable to stop himself.

9. [119]

   In circumstances where the experts’ explanations for their opinion in that regard are, in substance, the same, and there is nothing else to suggest that that opinion should have doubt cast on it, I consider that I ought to accept their opinion that, notwithstanding what the accused said, he did not know that his actions were wrong.

10. [120]

    For those reasons, I accept the psychiatric evidence on the balance of probabilities that the accused suffered from a mental health impairment and that such mental health impairment had the effect that the accused did not know that his acts were wrong in respect of each of the counts.

11. [121]

    The accused is represented by Mr Karim of counsel and Mr Faiz, solicitor, and in that way s 31(b) of the Act is satisfied.

Conclusion

1. [122]

   In relation to each count on the indictment, I return a special verdict of act proven but not criminally responsible.