R v Fadel

1. [1]

   WILSON J: Shortly after midnight on 24 August 2020, in separate knife attacks, two men were very grievously injured. Grant Kelly was extremely fortunate to survive a deep slash wound to his throat; Nicholas Grayndler, very sadly, did not survive the similar if more severe injuries that had been inflicted upon him, dying in the early hours of 24 August 2020. In each instance the accused, Bilal Fadel, accepts that it was him who wielded the knife that seriously injured Mr Kelly, and killed Mr Grayndler. By his pleas of not guilty to the three charges upon which he was arraigned before me on 5 March 2024, the accused raised the defence of mental health impairment and, alternatively, the partial defence of substantial impairment.

2. [2]

   On 4 March 2024 the Court granted leave to the accused to file in court an application pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) for his trial to be heard by a judge sitting without a jury. The Crown consented to that application and thus the accused’s trial proceeded before me as judge sitting alone. The only disputed issue to be determined by the Court is whether the defence of mental health impairment that is provided for by s 28 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) or, alternatively, the partial defence of substantial impairment provided by s 23A of the Crimes Act 1900 (NSW), is established on the balance of probabilities.

The Charges

1. [3]

   The accused was arraigned on the following charges:

2. [4]

   He entered pleas of not guilty to each charge, adding the words “mental illness” after his pleas.

Legal Framework

1. [5]

   As with any criminal trial it is the Crown that carries the burden of proving the guilt of the accused for the offences on indictment, or any relevant alternative, with the standard being that of proof beyond reasonable doubt. The accused has the benefit of the presumption of innocence and, setting aside for the moment the defence raised, no obligation to prove anything. He was not required to give evidence and no inference adverse to him may be drawn because he did not.

2. [6]

   In the context of this trial, where the defence of mental health impairment has been raised at arraignment, to prove the charges the Crown must prove beyond reasonable doubt the actus reus of the charged offences. If the Court is satisfied that the physical elements of the charges have been proved by the Crown beyond reasonable doubt, the Court must consider the defence of mental health impairment, without at that stage considering the question of proof of the relevant mens rea for each of the charged offences. If the defence is not proven on balance, the Court would return to the mental element of murder, in this case intent to kill or do grievous bodily harm, and that relevant to the allegation of causing grievous bodily harm with intent to murder.

3. [7]

   As the only issue before the Court is the availability of a defence or defences under the MHCIFP Act, it is useful to set out the legislation at this point. The Act commenced on 27 March 2021, replacing the former Mental Health (Forensic Provisions) Act 1990 (NSW). The events the subject of the trial occurred before the commencement of the MHCIFP Act. The transitional provisions in Schedule 2 of the MHCIFP Act provide that the 1990 Act will continue to apply to “proceedings for offences commenced before the commencement of Part 3 of this Act” until such a time as “a determination is made as to whether a special verdict should be entered or the defence is no longer being raised.” This Court has taken a narrow view of the meaning of “proceedings” such that it is concerned with the hearing that commenced once an indictment was presented: R v Tonga [2021] NSWSC 1064; R v Risi [2022] NSWSC 862. The parties did not disagree with that interpretation.

4. [8]

   The defence of mental health impairment is described in s 28 of the MHCIFP Act:

5. [9]

   Section 4 of the MHCIFP Act defines a mental health impairment as:

6. [10]

   Under the MHCIFP Act the accused is presumed to have been mentally well at the time of the alleged offence, and it is a matter for him to prove the contrary proposition on the balance of probabilities. What must be established is that the accused either did not know the nature and quality of his act, or did not know that it was wrong. Section 28(1)(b) imports the expansion upon the latter of the two concepts that was first given by Dixon J in The King v Porter (1933) 55 CLR 182 at 189-190, that is, that the accused “could not reason about the matter with a moderate degree of sense and composure” as to the wrongness of his act, “having regard to the everyday standards of reasonable people”. This needs to be established to the lower civil standard of proof on the balance of probabilities.

7. [11]

   The evidence before the Court needs to be considered bearing the terms of s 28 and s 4 in mind.

The Acts Alleged

1. [12]

   The charges reflect acts that occurred soon after midnight on 24 August 2020, in Merrylands. At that time Grant Kelly lived at an address in Bertha Street with family. Mr Kelly knew the accused well, the two men having been good friends for some 8 years. They frequently socialised, sometimes using prohibited drugs together, drugs which the accused on occasion supplied. As at the time of the attack Mr Kelly said that he did not owe the accused any money. The accused had previously told Mr Kelly that he had a bi-polar disorder; Mr Kelly understood the accused not to take medication for his condition. He had on occasion during the time they spent together, observed the accused to act strangely, but did not consider him to be “overly dangerous”.

2. [13]

   Mr Grayndler, who also lived in Merrylands, a short distance away from Mr Kelly’s home and that of the accused in Bird Avenue at Guildford, knew both men. He had known the accused since 2018 and socialised with him, and with Mr Kelly, from time to time. The three men frequently used prohibited drugs together on these occasions.

3. [14]

   On the morning of Saturday 22 August 2020, the accused sent a text message to a friend [1] which, even to the lay person, is suggestive of a mental health impairment. The text message was lengthy and referred to “monsters” who had hurt the accused when he was a child, and to those who wanted to hurt him in the present. Of the latter the accused, referring to his own “volcanic” and “extreme” mood, said that he would “teach them”. In font that moved from lower to upper case, he referred to there being no limits and no rules to what would be done to “horrible humans” who wanted to hurt him. He said:

4. [15]

   On the evening of 22 August 2020, Mr Kelly received a telephone call from the accused in which the accused told him, “It doesn’t matter where you go, it will follow you”. The accused began laughing. Mr Kelly thought that the accused was “talking funny” and not making any sense.

5. [16]

   Mr Kelly heard from the accused again the following evening when he received a phone call from him. The accused asked him what he was up to, and Mr Kelly replied, “I’m just at home, sitting in the carport”. The accused mentioned coming over and Mr Kelly agreed.

6. [17]

   Shortly after midnight, on 24 August 2020, the accused arrived. Mr Kelly, who is an amputee, was sitting on his mobility scooter in the carport at the end of the driveway of his home. He saw the accused walk up the driveway, noticing nothing untoward. The accused, whose pupils were observed to be dilated, [2] approached Mr Kelly and squatted down next to him. He said, “Grant, it’s either me or it’s you”. He then stood up, producing a knife from the waistband of his pants. The knife was large with a rusty blade. Mr Kelly believed it was a knife he owned and which he had, a few days earlier, shown to the accused, telling him that he had sharpened it.

7. [18]

   Mr Kelly wasn’t sure if his friend was being serious and asked him, “What are you talking about?” The accused then moved the knife towards Mr Kelly’s neck, causing Mr Kelly to grab it with both hands to stop the accused from stabbing him. The two struggled over the knife, with Mr Kelly receiving defensive cuts to his hands and fingers. Mr Kelly saw blood all over his and the accused’s hands. The accused was able to pull the knife from Mr Kelly’s grasp and, moving behind him, he drew the blade across his friend’s throat, causing a deep wound. As Mr Kelly struggled for his life he received further injuries, with the accused stabbing him on the right cheek, shoulder, and head. Throughout, Mr Kelly was screaming and calling out to the accused; the accused said nothing.

8. [19]

   Leaving Mr Kelly grievously injured, the accused walked away. Mr Kelly’s mother, alerted to the incident by the noise, came to his assistance, calling immediately for an ambulance. Mr Kelly told both his mother and the police who arrived soon afterwards that the accused had attacked him. He was completely unaware of any reason for it.

9. [20]

   As police officers assisted Mr Kelly, another call relating to a stabbing was broadcast over the Police radio. A neighbour of Mr Grayndler contacted the emergency operator at 12:25am to report that he had seen Mr Grayndler through the window of the latter’s unit holding his hand to a throat wound and coughing up blood. The neighbour heard Mr Grayndler say that he could not breathe.

10. [21]

    When police officers arrived at Mr Grayndler’s home, they saw him lying on the floor just outside the bathroom. There was blood on his clothes and blood coming from his mouth. The officers saw a wound to his throat and applied pressure to it. Paramedics arrived on scene and began rendering aid. Mr Grayndler lost consciousness and went into cardiac arrest. Despite extensive efforts by paramedics to revive him, he was declared dead soon after arrival at Westmead Hospital, at 1.44am.

11. [22]

    Mr Grayndler’s body was later examined. The forensic pathologist who conducted the examination, Dr Kendall Bailey, observed a 35mm linear sharp force wound to the left side of the neck. This wound severed the jugular vein and the external carotid artery and was the cause of death. The wound tracked across the base of the tongue; its exit might have been another sharp force defect seen under the line of the jaw, to the right side. Other injuries were also noted, being additional offensive, or defensive, wounds, the latter to the right hand.

12. [23]

    Crime scene examination of Mr Grayndler’s apartment showed what might be signs of forced entry through the balcony, and a large volume of blood deposited in the residence. A significant deposition of blood was observed in front of a lounge in the lounge room, and a blood trail moved from that location to the bathroom, where there were further large deposits of blood.

13. [24]

    Mr Kelly, who was rushed to Westmead Hospital for treatment, had sustained very significant injuries. A large 25cm deep soft tissue laceration was observed across his lower neck, with fat, muscle, and the thyroid gland visible. A smaller subcutaneous soft tissue laceration to the right cheek was some 14mm x 9mm in size; it caused nerve damage resulting in an inability to raise the right side of the lip and required later surgical repair. A number of lacerations had been inflicted to Mr Kelly’s left hand which were sufficiently deep as to also require surgical repair. Another deep wound to the right shoulder exposed the fatty layer and was closed with staples. There was a laceration to the back of the head and widespread bruising to Mr Kelly’s right arm. Some swelling was noted to the right ear and ear canal.

14. [25]

    Mr Kelly’s home was also subject to crime scene examination. Like Mr Grayndler’s home, there was a substantial quantity of blood observed in the area of the car port, tracking from that location through to the main house.

15. [26]

    Footage taken from surveillance cameras located close to Grant Kelly’s home recorded sound during part of the attack on him, with Mr Kelly’s screams and cries audible. He could be heard shouting, “Bill, what are you doing”, and, “What are you fucking doing, trying to kill me? You fucking stabbed me, what the fuck”. [3] The male to whom these comments were evidently directed was filmed walking east along Bertha Street, yelling “Look out, fucking cunts”. Although the footage is grainy there can be no real doubt that this was the accused.

The Arrest of the Accused, and the Time Spent at Granville Police Station

1. [27]

   At 1.05am police officers arrived at the accused’s address in Bird Avenue, Guildford. The accused was not then at home. When he arrived home at about 1:59am, he was immediately arrested. His interactions with police were recorded by body worn cameras affixed to the uniforms of the officers who dealt with the accused. The accused can be seen walking along the street towards his home. He was intercepted by waiting officers, stopped, and told he would be searched. He was quiet and compliant, complaining only of the cold, and some aspects of the searching procedure. He sometimes laughed in circumstances that were manifestly not humorous. Nothing of interest was found in his possession. When formally arrested and cautioned, the accused responded, “I don’t even know”. [4]

2. [28]

   The lower legs of the accused’s tracksuit pants and his shoes and socks were noted to be wet, although conditions were dry. When asked why he was wet the accused responded, “It’s a jungle out there.” Blood, almost certainly Grant Kelly’s, was later detected on his right shoe, in significant quantities, with further blood on the laces of his left shoe. The accused was asked if he had been through nearby Duck Creek but said that his socks were wet from “water and residue”. When searched for a second time prior to being loaded into a transport vehicle, the accused remained compliant, although he had a conversation in a foreign language with a female who was off camera. At one point he said:

3. [29]

   The accused’s hands were secured inside evidentiary bags, a procedure that was also filmed by body worn camera. [5] He muttered during this process and at one point said, “It’s alright mate […] we’re just sitting here screaming”. He was taken to Granville Police Station.

4. [30]

   At the Station he entered the secure dock without incident. [6] His clothes were taken for forensic purposes, and the accused was cooperative with the process. [7] Sitting in the dock he laughed inappropriately from time to time. At one point, in an unresponsive comment, he said:

5. [31]

   The accused frequently gazed about, appearing to focus on vacant spaces, sometimes speaking unintelligibly towards the space, and smiling, muttering, and laughing. His conversation with detectives a little later that morning was focused on food and was, to a degree, rambling. [8]

6. [32]

   He told the custody manager that his “head, neck and brain hurts”. An ambulance was called but paramedics, who arrived at 4:35am, found no sign of trauma. One of the attending paramedics advised the Custody Manager that there was “no reason why they would schedule” the accused. [9] The Custody Management Record later noted:

7. [33]

   On that assurance it seems that no formal mental state assessment was conducted. By 5:22am the accused was kicking the dock. [11]

8. [34]

   When in police custody the accused was by turns aggressive and calm. From time to time, he removed the evidentiary bags from his hands, sometimes being resistant to requests to replace them, whilst at other times cooperating. He was observed to rant nonsensically, and was recorded in the Custody Management Record as appearing to be irrational. The responsible officer noted that the accused “made some unusual comments about ‘bombs’, and his ability to access them". The accused reported a history of “depression” and commented that “he sacked his psychologist [and] could not remember her name”. The Custody Management Officer noted that the accused was “somewhat erratic”. When aggressive, the accused swore loudly and kicked at the dock in which he was secured. An officer left to monitor the accused heard him say, “I’m a killer, we kill for a living”. He frequently mumbled to himself and at other times shouted aggressively. His own clothes having been taken by police for evidentiary purposes, the accused ripped the overall supplied to clothe him, such that it was rent almost in two, leaving him significantly exposed.

9. [35]

   One officer, attending to unrelated duties that afternoon in the accused’s vicinity, overheard him say, “Is Grant dead? Am I here because he is dead?”. When he said those words he looked directly at the officer, thereafter looking at the ceiling and using “rambling” words. The constable described the accused’s actions, demeanour and general behaviour as like that of a person “having a mental health episode”.

10. [36]

    The accused’s solicitors arrived later on the morning of 24 August 2020, but the accused was adjudged unable to be interviewed due to his aggressive conduct. Later in the day, at 1:36pm, he was asked to consent to the examination of his hands but refused. After an order was obtained from a senior officer for the forensic procedure to be carried out without the accused’s consent, the accused was advised that it would be done. The accused became so aggressive [12] that officers from the Regional Enforcement Squad were called in to restrain him, and the examination was conducted with the accused handcuffed (for the most part) to the rear, and physically restrained by two officers, with two more standing by. A recording of the procedure is in evidence as Ex. B.E. It shows the accused struggling against three officers as he was brought into the room in which the procedure was conducted. His overall was so torn as to hang from one shoulder, exposing his torso and one leg. After a few minutes the accused became quieter and ceased to struggle. Although he appeared to complain from time to time about the discomfit caused by the handcuffs, he remained calm for the balance of the 28 minute procedure. The Custody Management Records note that the accused was given food after the examination of his hands was completed. The entries thereafter record him as calm and cooperative.

11. [37]

    At about 1:30pm the accused was asked to consent to a further forensic procedure, the taking of a buccal swab. Footage of that encounter is also in evidence before the Court as Ex. B.E. It shows the accused, in fresh and entire overalls, calm and apparently fully able to comprehend and respond rationally to questions directed to him about the procedure. At one point he asked to consult a solicitor and, having done so, the accused returned to the recording suite and the procedure was carried out with consent and without incident.

12. [38]

    The accused was transferred to the custody of NSW Corrections at 23:42 that evening.

The Accused in Custody

1. [39]

   The records from NSW Corrections and Justice Health all form part of Ex. A.

2. [40]

   On 26 August 2020, a Reception Screening Assessment was administered. The notes record “1st custody, bizarre presentation, RIT, [13] has support”. Four days later, notes made by a Registered Nurse record that the accused was “Polite and co-operative. Engaging. Not in any distress”. The accused was recorded as saying that he had used methylamphetamine two weeks previously. His affect was “mostly appropriate; fatuous at times”. He was noted to have an “unclear MH history”. He had initially reported himself as having “BPAD” [14] but did not mention any such diagnosis subsequently. He was said to have “odd ideas and some form of thought disorder”. He was said to be grandiose, referencing Donald Trump, for whom he claimed to have carried out floor sanding, and requiring psychiatric assessment. He was orientated to time and place.

3. [41]

   Another note of the same date made by a Services and Programme Officer (or SAPO) recorded that the accused:

4. [42]

   A further Risk Intervention Team assessment on 5 September 2020 recorded the accused as “mentally unwell”. [16] Two days later he was noted to be calm.

5. [43]

   On initial remand classification on 15 September 2020, it was recorded that the accused had not been in custody before and had to be accommodated in a single cell. It was noted that a “medical hold” had been put in place until 9 December 2020, and the accused was awaiting a bed in the Mental Health Screening Unit (“MHSU”), “Not to be moved till cleared by MHT [Mental Health Team]”. [17] A history of depression was noted.

6. [44]

   On 16 September 2020 the accused was assessed by Dr Martin Reading, psychiatrist. The doctor noted that the accused was “Highly mentally ill. Refusing treatment […] floridly psychotic […] angry, delusional, hearing voices […] Believes others want to harm him”. [18] When the RIT staff attempted to speak to the accused on 19 September 2020, he told them to “fuck off”. He was said to be “abusive and aggressive”. [19] He was rather better on 21 September 2020, speaking well with RIT staff, and stating that he disagreed with the psychiatrist, [20] but his conduct just three days later caused staff to assess him as presenting a high risk to others. [21] He was elevated and only superficially engaged on that day. On 12 October 2020 the accused denied any intention of harming others but said that, if “someone tried to put it over him, he would use his metal arms which is not good for them”. [22] He was generally non-compliant with medication.

7. [45]

   On 23 September 2020 the accused was moved to the MHSU for assessment of psychotic symptoms. In a report of 12 October 2020 to the President of the Mental Health Review Tribunal (“MHRT”) Dr Miriam Saffron stated that:

8. [46]

   He was regarded as a “mentally ill person” requiring involuntary treatment under the Mental Health Act 2007 (NSW).

9. [47]

   Occasional minor infringements of prison discipline have been recorded against the accused since he has been on remand.

Telephone Intercept Evidence

1. [48]

   After the accused’s arrest he was, as might be expected, remanded in custody. Telephone calls he subsequently made from custody were recorded, and a small number of the 1831 calls [24] he placed between arrest and February 2024 have been tendered in evidence. The earliest in time are from October and November 2020, between 6 and 11 weeks after the charged incidents. By that stage the accused had been diagnosed with a mental illness and prescribed medication, albeit a regime with which he was not always compliant.

2. [49]

   On 3 October 2020, by which time the accused had been in custody for about 6 weeks, a call between the accused and his brother Fadel Fadel was intercepted. With respect to the case against him, the accused was recorded as dismissing the evidence in the Crown case as derived from “drug fucked” “criminals” whose evidence could not be treated as reliable. [25] He asserted his innocence. In a conversation a week later with a former girlfriend, the accused criticised the case against him as resting on the evidence of “crackheads” and “junkies”, and expressed confidence that it was so poor that “we can get away with it”. [26]

3. [50]

   In a telephone call of 9 November 2020, the accused was recorded soliciting his brother Fadel Fadel to interfere with Mr Kelly’s evidence. He said:

4. [51]

   He went on to ask his brother to “brown tongue” Mr Kelly as much as possible, to “butter him up”, and to “butter it up to the max”. The accused suggested that, if his brother did as he asked, and Mr Kelly withdrew his police statement, he would have “a really good chance of getting that charge dropped”. In the next call to his brother, placed minutes later on 9 November 2020, the accused continued to urge his brother to suborn Mr Kelly:

5. [52]

   Referring Mr Fadel to “love letters” that he could find on Google as an example, the accused urged his brother to “fuckin’ hit it hard cuz”.

6. [53]

   Conversations from much later are also in evidence. On 6 October 2021 the accused spoke to his brother Fadel Fadel about the prospect of the matter proceeding “on a section 33”, presumably a reference to s 33 of the repealed Mental Health (Forensic Provisions) Act which allowed for charges proceeding summarily to be dismissed with or without conditions where the defendant had a mental illness. The accused told his brother that a s 33 outcome was “better for my record. At least I can go to America and travel”. [29]

7. [54]

   Later that same day in another conversation with his brother, [30] the accused speculated about how best to achieve “that forensic”, noting that he could establish that he had “mental health support” through his brother, who had or was about to complete a degree in psychology. There was further discussion about the prospects of “beating” the charge relating to Mr Kelly if Mr Kelly changed his account of events.

8. [55]

   On 6 November 2021 the accused returned to the subject of a disposition under forensic provisions, or “going for forensic”, asking his brother if a report had been obtained from a psychologist. [31] He asserted that inquiries of Westmead Hospital would find evidence of brain damage that:

9. [56]

   In another call to Fadel Fadel later that day, [32] the accused said that he had been diagnosed with and medicated for paranoid schizophrenia, which meant “they [the authorities] won’t get a murder charge.”

10. [57]

    On 18 April 2022, the accused told his brother that he was using illicit drugs in custody, a drug he nominated as “lean”. [33] He told his sister Alaa Fadel the same thing in a call on 15 November 2022. [34]

11. [58]

    In a later conversation with Alaa Fadel of 15 August 2023, [35] the accused explained that he would not be held accountable for the charges because doctors had said he was mentally unwell at the time of the alleged offences. He assured her that he had been advised he would not “get time” but instead would “go to hospital”. He concluded:

12. [59]

    The accused assessed the positives and negatives of that outcome as, respectively, that the government would pay him $1000 per fortnight to stay in hospital; but that it was not certain when he would be released from hospital.

Psychiatric Evidence

1. [60]

   At the request of the Crown the accused was assessed by Dr Kerri Eagle, forensic psychiatrist. Dr Stephen Allnutt, also a forensic psychiatrist, examined the accused at the request of his legal representatives. Reports prepared by each were in evidence before the Court, and each gave oral evidence. The latter was taken concurrently on 7 March 2024, pursuant to s 275C of the Criminal Procedure Act 1986 (NSW). Each of the doctors was provided with a substantial amount of material, including footage recorded by cameras worn by police officers who dealt with the accused on and soon after his arrest, recordings of forensic procedures, intercepted telephone calls in which the accused took part, and the accused’s file from Justice Health.

2. [61]

   Dr Eagle provided reports dated 26 July 2022 [36] and 7 February 2024. [37] She saw the accused on 15 July 2022 by way of an audio-visual link for a period of one hour and 45 minutes. The accused gave an account of himself as affected by panic attacks, anxiety and poor concentration. He said that he was affected by “memories” that might be triggered by television or particular names. He would become angry and be unable to control that anger. He had regular panic attacks in this context. He was not able to watch television or read a book, and found it hard to follow directions. He felt that persons in government, including prison staff, were following him with helicopters, cars, and planes. He said, “They used to hover above me”. The accused believed that the “Illuminati” were talking to him through the radio, speaking in Chinese. He saw them on television, and people on television shows discussed him and his past relationships. He said he had begun to notice the Illuminati about 3 months prior to the acts the subject of the charges. He heard voices, which he described as “a swarm of souls”, telling him to “fashion a weapon and stab someone”. Although he said that he thought he had schizophrenia and bi-polar, he recounted memories of having been shot and stabbed by people who were trying to kill him as “true”.

3. [62]

   The accused gave an account of his substance use which began, he said, when he was 16 years old and started to use cannabis. He said that he smoked every day, morning, and night, until he was 20 years old. From 17 years of age, he began to use alcohol, describing himself as having been an alcoholic, drinking “morning, midday, and night”. He stopped this when the voices began. The accused acknowledged heroin use, and occasional use of MDMA and cocaine. He used methylamphetamines “a little bit here and there, weekly sometimes”.

4. [63]

   In the weeks leading up to the charged offences the accused said that the voices were “a swarm of souls” and he could not think clearly. He thought he was being monitored by his own devices, and that army helicopters were hovering overhead watching him. He went to Cabramatta where the radio told him he was “elite because I freed the slaves”. He had no memory of the charged events, telling Dr Eagle that Mr Kelly and Mr Grayndler were his friends, and he had had no argument with either.

5. [64]

   Dr Eagle observed that the accused “displayed a bizarre persecutory belief that he was being monitored and followed” and reported continuing auditory hallucinations and perceptual disturbances. In her opinion the accused has a psychotic disorder, such as schizophrenia or a schizo-affective disorder. She said:

6. [65]

   The accused also had, in the doctor’s opinion, symptoms of Post-Traumatic Stress Disorder (“PTSD”) following a road traffic accident, and some level of cognitive impairment, perhaps from the combined effects of developmental delay, PTSD, and prolonged substance use, with possible head trauma potentially a factor.

7. [66]

   For the purposes of the legal defences Dr Eagle is of the view that the accused:

8. [67]

   The doctor opined that, although the accused was likely capable of understanding the physical quality of his actions on 24 August 2020, the probable acute psychosis from which he was suffering at the time of the charged offences likely means, on balance, that he was unable to reason with sense and composure as to the wrongfulness of his actions. With respect to the alternate defence of substantial impairment:

9. [68]

   Whilst the use of illicit drugs may well have exacerbated the accused’s condition, and heightened the symptoms of psychosis, the relevant psychotic episode was due to an enduring underlying mental health impairment.

10. [69]

    Dr Eagle’s report of 7 February 2024 [38] and part of her oral testimony dealt with some evidence that could, perhaps, cast some doubt upon the genuineness of the accused’s presentation to psychiatrists as a person with a mental health impairment. This evidence included the assessment of the accused by Lisa Zipparo of 4 February 2021, which could not exclude the possibility of malingering; evidence of the intercepted prison calls, including calls in which he sought to influence a witness and calls in which he discussed the availability of the s 28 defence; the absence of any reference to the illuminati in the many gaol calls that were recorded; the accounts given to various individuals by the accused of his use of drugs; and the accused’s presentation over time, particularly in conversation with family. The concern raised with Dr Eagle was as to whether the accused had been malingering.

11. [70]

    Dr Eagle saw the accused via audio-visual link again over two days, 18 and 19 January 2024. The accused was asked about some of the potentially troubling information but answered with a response supplied to him by his lawyers, that he “could not discuss these questions”. Dr Eagle noted that the accused:

12. [71]

    The doctor fully considered the information to which her attention was directed but maintained her opinion that the accused had a psychotic disorder, most consistent with schizophrenia or a schizo-affective disorder. She observed:

13. [72]

    She concluded:

14. [73]

    The doctor observed:

15. [74]

    In short, having been exhaustively briefed, and having carefully considered the information and its possible impact upon her initial opinion that the accused had the s 28 defence available to him, Dr Eagle maintained her view that the accused had probably been psychotic at the time Mr Kelly was injured and Mr Grayndler killed, and as a consequence of a mental health impairment was unaware of the wrongfulness of his acts. She concluded:

16. [75]

    Dr Stephen Allnutt assessed the accused at the request of his solicitor. The doctor’s reports of 5 November 2021 and 10 October 2023 are in evidence. [40] Dr Allnutt saw the accused on 3 November 2021. [41] At that time the accused had been on remand for about 14 months. He had been prescribed Zyprexa and Seroquel in custody and said he felt “more normal” because of the treatment. He reported a very poor memory, and occasions of severe anxiety. He gave a history of illicit substance abuse, saying he had used “ice” [42] and cannabis the day before he entered custody. The accused said that he heard voices intermittently but that, before entering custody, it had been “a swarm” and he had had no control over his body, with spirits controlling him instead. He spoke about the voices telling him to stab and kill, to buy drugs from a Chinese shop in Cabramatta, and to free the slaves. The television and radio spoke to him, and the “Illuminati” used to fly over his head in planes and helicopters, following him. He reported a history of depressive symptoms, anxiety, post traumatic and psychotic symptoms.

17. [76]

    On mental state examination Dr Allnutt noted that the accused had ongoing symptoms of psychosis in the form of auditory hallucinations, referential ideas, and paranoid ideas. The accused found it hard to concentrate and Dr Allnutt thought his insight was probably impaired. Noting that the issue was whether the accused had a chronic condition or a drug-induced psychosis Dr Allnutt concluded that the accused had chronic paranoid schizophrenia, aggravated by substance use.

18. [77]

    Dr Allnutt saw the accused again on 6 and 11 September 2023 and prepared a further report. [43] The accused gave a history to Dr Allnutt that was similar to that provided at the 2021 consultation. He spoke of “a swarm of little souls”, Illuminati, helicopters and planes overhead, being followed and voices telling him to stab and kill. He felt as if he had no control. He said he thought the voices had begun when he was 23 years old. He denied using drugs or alcohol on the day of the charged events. Dr Allnutt noted:

19. [78]

    On mental state examination Dr Allnutt noted that the accused presented as clear and coherent, with restricted and intense affect. The doctor again formed the opinion that the accused had chronic paranoid schizophrenia or a schizo-affective disorder. He likely also had PTSD with associated panic attacks and depression. Dr Allnutt concluded that, on the basis of the whole of the material available to him:

20. [79]

    A report to the MHRT of 9 December 2022 prepared by Dr Andrew White, CMO with Justice Health is entirely consistent with the reports of Drs Eagle and Allnutt.

21. [80]

    In oral evidence the Crown raised with Dr Eagle and Dr Allnutt a number of aspects of the evidence that might raise some doubt about their respective conclusions, but both doctors excluded these as having any impact upon those opinions. The accused had given inconsistent accounts of drug use, and his circumstances more broadly over the period he was held on remand, but Dr Eagle explained that this was to be expected of a person with a schizophrenic condition and a substance use disorder. She said:

22. [81]

    Dr Eagle was also asked about the possible impact of drugs that the accused said he had consumed, including cannabis, Endep, Xanax, and Seroquel, but did not consider the consumption of the particular drugs, even if the accused’s account was reliable, as having any material role to play in his conduct and presentation on 24 August 2020. None of the drugs the accused may have taken would be likely to lead to psychosis in the prevailing circumstances, many being largely sedative in affect, and the inconsistent history the accused gave did not displace Dr Eagle’s opinion as to the underlying mental health impairment she concluded the accused suffered.

23. [82]

    Dr Allnutt agreed with this proposition, adding that:

24. [83]

    As to the intercepted telephone calls from prison, in which the accused discussed a potential mental health defence, the evidence against him, and the prospects of persuading Mr Kelly not to give evidence against him, neither Dr Eagle nor Dr Allnutt regarded their content as inconsistent with the diagnosis reached. Whilst Dr Eagle said that she could not rule out malingering as a possibility, she thought it most unlikely:

25. [84]

    Dr Allnutt in his concurrent evidence was in agreement with Dr Eagle. He said:

26. [85]

    Both doctors were firm in their view that the accused had a mental health impairment as defined by s 4 of the MHCIFP Act, such that he did not know that the acts reflected by the charges were wrong, that is, the accused could not reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were wrong.

Submissions of the Parties

1. [86]

   The Crown provided the Court with MFI 3, a document usefully setting out transcript and other evidentiary references to material before the Court. The Crown considered the evidence that had been placed before the Court including that which pointed to a pre-existing illness in the diagnosis by a general practitioner that the accused had suffered from depression and anxiety; and took the Court to the evidence which suggested that it was open to the Court to conclude that the events of 24 August 2020 constituted the manifestation of a pre-existing disorder, demonstrated by psychosis.

2. [87]

   The Crown referred the Court to the evidence which could have suggested that features other than a relevant impairment might explain the accused's presentation on this morning, including drug use and the associated prospect of a drug induced psychosis, but submitted that the expert evidence was completely uniform to the effect that none of that other evidence negatived the availability of the s 28 defence. The Court was referred to the evidence of the telephone calls made by the accused from prison; the unreliable history which the accused gave of himself from time to time; the prospect of drug use by him; and the unreliable history he gave concerning drug use, as factors that were relevant when considering the availability of the s 28 defence. Ultimately, the Crown accepted that the unanimous conclusions of the experts as to the existence of mental health impairment at the time of the charged offences, an impairment continuing to the present, is such that it is open to the Court to accept that the s 28 defence has been made out.

3. [88]

   That being the Crown’s position, Mr Brock, counsel for the accused, sensibly concluded that it was not necessary to provide oral closing submissions to the Court, particularly since the Court has had the benefit of MFI 4, a document provided by Mr Brock on 15 March 2024 which helpfully summarises relevant evidence and transcript references of significance to the question of the availability of the s 28 defence.

4. [89]

   I have had regard to the submissions and evidence summaries.

Determination

1. [90]

   As I observed at the outset, the issue before the Court is the question of whether the accused has established on the balance of probabilities that he had a mental health impairment on 24 August 2020 and falls within s 28(1)(a) or (1)(b). Whilst there is some evidence that suggests the accused may have been drug affected on 23 and 24 August 2020 rather than mentally impaired or, alternatively, that any apparent psychosis was drug induced rather than the product of a mental health impairment; and there is some evidence that might raise the possibility of malingering; the weight of the evidence is that the accused was suffering from a mental health impairment that meant he could not, with a moderate degree of sense and composure, reason about whether his acts, as perceived by reasonable people, were wrong .

2. [91]

   There is evidence independent of recent medical opinion that points to pre-existing illness. The accused has described to others symptoms that he experienced much earlier than the charged incident that are consistent with illness. He was prescribed Endep in the community, evidently for the treatment of depression and anxiety. Mood disorders of this type can be, on the evidence of Drs Eagle and Allnutt, part of a schizo-affective disorder. There is also some evidence that family members had thought the accused was not well prior to 24 August 2020 and was behaving oddly. The text message sent on the morning of 22 August 2020 [49] squarely raises impairment, supported by Mr Kelly’s observations of the accused’s odd behaviour that evening during the telephone call.

3. [92]

   Dr Eagle said in her evidence that the text of 22 August 2020 read as “persecuted, odd and irrational” and appeared to reflect disordered thinking, consistent with psychosis. Dr Allnutt pointed out that this text message preceded the rather bizarre phone call to Mr Kelly on the evening of the same day and, when taken with other pieces of information, pointed to a conclusion that the accused was, at that time, impaired.

4. [93]

   The charged acts themselves, which I do not doubt, and find, the accused carried out, reflect irrationality. Mr Kelly and Mr Grayndler were the accused’s friends, in circumstances where he reported being unable to readily make friends. There is no evidence of any dispute or disharmony between the men, and certainly Mr Kelly was completely unaware of any reason for the accused to want to do him harm. His shock at the attack, and disbelief at it having occurred, is just as evident in the shouted comments recorded in the CCTV of 24 August 2020 as is his pain and distress. [50] The sheer irrationality of the two attacks points to the motivation being divorced from objective reality.

5. [94]

   Afterwards, on arrest, at Granville Police Station, and over the years in custody, the accused has maintained the presentation of a person with a psychotic illness. His manner on arrest, whilst quiet initially, was odd, even to the layperson, and his behaviour at Granville Police Station and some of the comments he made seem distinctly strange. He was recorded by police officers as erratic and giving the appearance of someone having a “mental health episode”, and the expert evidence is that his conduct at the time is consistent with psychosis.

6. [95]

   That presentation continued from 24 August 2020 for the three plus years since, during which the accused has been remanded and closely monitored. Over that time the various medical and mental health professionals who have engaged with the accused have regarded him as very unwell, floridly psychotic, and likely schizophrenic.

7. [96]

   There is some evidence that could contradict the existence of a mental health impairment. There is clear evidence that the accused was an habitual user of illicit drugs, and some evidence that might, on one view of it, point to drug use proximate to the time of the charged offences. There is evidence that the accused told different people different things at different times about his drug use on or about 24 August 2020. There is evidence of the accused discussing with his brother and others the best way to “beat” the charges, including by suborning a witness. I have examined this evidence, but I am not persuaded that it materially detracts from the strong weight of evidence that supports the availability of the s 28 defence, informed as that conclusion is by the unanimous expert evidence.

8. [97]

   There is little that is surprising about a drug user who cannot give a consistent account of drug use; it does not inevitably lead to the conclusion that the accused has been deliberately dishonest. Nor is there anything in the shifting detail of drugs consumed that points to the likelihood of a drug induced psychosis, divorced from an underlying mental health impairment, operating upon the accused at the material time. On the contrary, there is evidence of a pre-existing, even if undiagnosed, serious mental health impairment. If the accused had suffered a temporary drug-induced state it is highly unlikely that he could have maintained the appearance of psychosis linked to a mental health impairment for the period during which he has been on remand and under regular review. Even for a very clever person, to maintain a pretence of mental illness sufficiently effective as to deceive highly trained medical specialists, including experts specifically asked to consider the possibility of malingering, would be extremely difficult. For a cognitively limited person as the accused appears to be, the task would be almost impossible. I do not think it is reasonably possible that the accused could keep up such a sophisticated pretence for such a lengthy period, when under constant supervision and review. Drs Eagle and Allnutt thought it very unlikely.

9. [98]

   Neither do the accused’s discussions of the case against him cause me to doubt the expert opinion as to his mental health impairment. Even a person with a mental illness can be expected to engage with his own defence, whether that is by way of a mental health impairment defence, or by challenging the reliability of evidence offered by supposed drug users. That is to be expected. The accused’s apparent attempts to interfere with the operation of the criminal justice system show a degree of rationality, despite being – at least – foolish and naïve, but the expert evidence is that mentally impaired individuals have, like most of us, good days and bad days, and there will be days when even an acutely ill person will be able to have some rational, if unwise, thought. The accused’s discussions with his brother about his case give one pause, but do not ultimately detract from the weight of evidence going to his impairment.

10. [99]

    Finally, there is no logical or rational reason to doubt the validity of the shared opinion of Dr Eagle and Dr Allnutt that the accused was likely to have been acutely psychotic due to a mental health impairment when Mr Kelly was stabbed, and Mr Grayndler killed, at least to the lesser standard of proof that applies to this question.

11. [100]

    The two experts, Drs Eagle and Allnutt, each provided with a mass of evidence as to the accused’s conduct and presentation in the period since Mr Kelly was wounded and Mr Grayndler killed, have both concluded that the accused had a mental health impairment at the time such that the defence provided by s 28 is available to him. Dr Eagle and Dr Allnutt are both impressively qualified in forensic psychiatry, with specialised knowledge based on their training, study and extensive experience. Each was comprehensively briefed, including with the information that might raise some question of malingering. The Court cannot set aside those opinions without some good reason. No good reason exists.

12. [101]

    I was impressed with the care taken by the experts to consider all the available information, and by the thoughtfulness with which each gave evidence. I have no reason not to accept the shared opinion as to the availability of the defence. On the basis of the expert evidence, supported by the other evidence before the Court, I accept that the accused was, in the very early hours of 24 August 2020, suffering from schizophrenia or a schizo-affective disorder, each being a mental health impairment as defined by s 4 of the MHCIFP Act, such that he did not know that his acts were wrong, being unable to reason with a moderate degree of sense and composure about whether his acts, as perceived by reasonable people, were in fact wrong.

13. [102]

    Having considered all the evidence placed before the Court, I am satisfied that the defence of mental health impairment is, on the balance of probabilities, established, and the special verdict should be returned: s 28 MHCIFP Act. It is not necessary to consider the alternative defence pursuant to s 23A of the Crimes Act.

Verdict

1. [103]

   On count 1, the charge that the accused on 24 August 2020, at Merrylands in the State of New South Wales, did cause grievous bodily harm to Grant Kelly, with intent to murder the said Grant Kelly, the Court finds the offence proven but the accused not criminally responsible for it.

2. [104]

   On count 3, the charge that the accused, on 24 August 2020, at Merrylands in the State of New South Wales, did murder Nicholas Grayndler, the Court finds the offence proven but the accused not criminally responsible for it.

3. [105]

   The verdicts that will be entered against each of counts 1 and 3 of the indictment presented on 4 March 2024 is “act proven but not criminally responsible”, as provided by s 28 of the Mental Health Cognitive Impairment Forensic Provisions Act.