R v Brewer (No. 2)

Adam James Brewer has pleaded not guilty to a charge that on 13 March 2014, at Pendle Hill in the State of New South Wales, he murdered Visakesvaran Velupillai (“the deceased”).

The Crown has previously consented to the trial proceeding before a Judge alone, without a jury. The statutory framework for a trial before a Judge alone is provided by s. 133 of the Criminal Procedure Act 1986 (“the CPA”) which is in the following terms:

Section 133(2) of the CPA requires that I expose my reasoning process by linking the relevant principles of law with the facts as I find them to be: Flemming v R [1998] HCA 68; (1998) 197 CLR 250 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108] – [110] (Hoeben CJ at CL and Bellew J agreeing). However, I am not required to express all of the matters which necessarily have to be stated to a jury unfamiliar with basic principles of the law: Markou v R [2012] NSWCCA 64; (2012) 221 A Crim R 79 per Macfarlan J (with whom R S Hulme J and R A Hulme J agreed), citing R v Winner [1995] 79 A Crim R 528 at 531.

Further, s 133(3) applies only to warnings. It does not require that every direction given to a jury be referred to when giving judgment in a trial before a Judge alone: W (supra) at [111].

Generally speaking the facts surrounding the death of the deceased are not in dispute. I find them to be as follows.

The deceased worked at a real estate agency located at 128 Pendle Way, Pendle Hill. The front window of the premises, and a door giving access to them, faced Pendle Way in a generally easterly direction. Immediately to the right of the premises (to the north) was the entrance to an arcade. That arcade ran from Pendle Way (to the east) through to Bentley Lane (to the west). Proceeding through the arcade from Pendle Way to Bentley Lane there was a further entrance to the deceased’s premises on the left.

Upon arriving at the premises on the morning of 13 March 2014, the deceased entered the arcade and put some items on the ground near the door to his office. He entered the premises and later swept the area of the arcade immediately outside the door.

Early on the morning of 13 March 2014 the accused caught a train from Seven Hills and arrived at Pendle Hill station at approximately 6.22am. At that time he was wearing dark sunglasses, a blue singlet top, dark jeans, and sandshoes. He was carrying a plastic bag with something white coloured inside.

Following his arrival at Pendle Hill station, the accused entered a public toilet where he remained for a period of approximately 45 minutes. He emerged wearing a white t-shirt over the blue singlet he was wearing at the time of going inside. He left Pendle Hill station via a footbridge which crossed, and then ran parallel to, the railway tracks, leading to a set of stairs. He descended the stairs and walked along Pendle Way in a generally southerly direction. At some point he crossed Pendle Way from east to west and headed towards the arcade.

The accused arrived at the arcade and initially walked past, before turning back and entering it. He walked back up to the footpath on Pendle Way momentarily, looked around, and went back to the door of the deceased’s premises where he picked up something and went inside.

The deceased backed out of the office holding a broom, followed by the accused. The deceased and the accused then began to fight in the arcade. Although the CCTV footage which recorded the events in the arcade is not entirely clear, the deceased at one point appeared to be on the ground struggling.

The accused then backed down the arcade towards Bentley Lane with the deceased following him and holding onto the broom. There was a scuffle during which the broom fell onto the ground, following which the deceased hit the accused with it. At that stage the accused left the arcade via the doors into Bentley Lane. The deceased remained near the doors, inside the arcade.

At about that time Brendan Burwood was walking along Bentley Lane past the entrance to the arcade. He saw a male (the accused) yelling at person inside the arcade (the deceased) saying words to the effect:

Mr Burwood also heard words to a similar effect coming from inside the arcade. He said that there were also other words spoken but he did not hear them clearly. He saw only two people and described what he heard and saw as being “like an argument of some sort”.

At about that time, the accused returned to the doors leading from the arcade to Bentley Lane. A further fight with the deceased ensued. The deceased then walked back into the arcade towards the door. The accused initially remained outside when further words appeared to be exchanged between himself and the deceased.

The deceased then walked back down the arcade towards the door of his premises. He was followed by the accused. He picked up the broom which had been previously in his possession and snapped it in half before dropping one half onto the ground. As the deceased bent over (seemingly for the purpose of picking up that part of the broom which had dropped to the ground) the accused, who by that stage had walked up the arcade towards Pendle Way and was standing nearby, commenced assaulting the deceased.

A further fight ensued. Both the deceased and the accused moved towards the glass doors leading into Bentley Lane. Although they both moved out of the direct line of sight of the CCTV camera, their appearance in the reflection from the tiled walls of the arcade is generally consistent with them continuing to physically struggle. It was at about that time that the accused stabbed the deceased, causing him to stagger backwards and fall to the ground. The deceased then got up and tried to move back down the arcade towards his premises before stumbling and collapsing onto the ground. Photographs of the scene show blood spatter and blood stains on the floor of the arcade.

The deceased was taken to Westmead Hospital and arrived there at 8.20am. Prior to his arrival, an entire trauma team had been assembled in light of indications that the deceased had gone into a state of cardiac arrest. Upon arrival at the hospital the deceased showed no signs of life. He was declared deceased at 8:25am.

Dr Irvine, a Forensic Pathologist, conducted an autopsy examination on 14 March 2014. She found stab wounds in the deceased’s left chest, left axilla, left elbow, left shoulder and left hand. She concluded that the deceased died as the result of a stab wound which penetrated his chest cavity between the left fifth and sixth ribs, perforating the pericardium and incising the apex of the heart through the septum.

The accused walked out of the arcade and along Bentley Lane in a generally northerly direction, carrying a milk crate. He then turned left, before crossing the railway line. He then walked east along Wentworth Avenue and then turned north before entering premises occupied by Hanson Constructions where he was discovered by an employee, Carlo Ianni, in a bathroom cubicle. At that time the following conversation took place:

Mr Ianni went outside and directed another employee, Lorenzo Granda, to call the police. Mr Ianni then walked back to the bathroom and saw that the accused’s jeans had blood spatter at the front. He also observed that the accused had dried blood on both sides of his nose, on his left cheek and on his neck. At that point a further conversation took place:

At that point the accused started walking out of the premises followed by Mr Ianni. Shortly afterwards, the police came by and Mr Ianni provided them with a description of the accused.

After leaving Hanson Constructions, the accused walked in a westerly direction along Wentworth Avenue. He then turned right into Ballandella Road where he walked in a northerly direction, before turning right and walking east along Hallmark Street, where he was arrested at about 8:10am.

The accused was arrested by Sgt. Lofts and at the time of his arrest he said (inter alia) the following:

When placed under arrest the accused said (inter alia):

When asked by Sgt. Lofts what had happened, the accused said:

When asked by Sgt. Lofts what the deceased had used to hit him, the accused said:

The accused then said:

The accused also spoke with Det. Roots at the time of his arrest in the course of which he said (inter alia):

Mate, seven days ago I was planning on jumping off Centrepoint Tower. Do you think I give a fuck about what you’re recording you wombat … You think you’ve taken a bad guy off the street. I’m not a fucken bad bloke. I’m fucken good. I’m one of the good guys.

Generally speaking, the accused appeared to be in a highly agitated state at the time of his arrest.

At the police station, when the police again told the accused he was under arrest, he responded by saying:

Det. Roots then observed the accused head butting the perspex door of a holding cell located in the charge room at the police station. When he expressed his concern the accused replied:

When asked where he had buried the knife, the accused responded:

The accused later told Det. Roots that he carried a knife because he had been previously stabbed.

Whilst at the police station, the accused underwent an initial medical assessment from Rhyse Vaughan, a Paramedic. When asked if he had any auditory hallucinations, the accused responded:

The accused was taken from the police station to Cumberland Hospital where he was examined by Dr Mushoriwa Zinatsa, who reported:

Dr Zinatsa certified that at the time of his assessment, the accused was not mentally ill and was not a mentally disordered person.

I should observe at this point that the opinion of Dr Zinatsa as to the accused’s mental state at that time is completely at odds with the opinions expressed by Dr O’Dea and Dr Allnutt. I have dealt with this issue when considering the expert evidence below.

THE ACCUSED’S EVIDENCE

The accused gave oral evidence before me and was cross-examined by the Crown. To the extent that he was able to recall the events leading to the deceased’s death, his recollection was, generally speaking, consistent with the circumstances of the offending as I have found them to be. The accused said (commencing at T88 L31) that on the morning of the deceased’s killing he was in possession of a knife “for protection”. He also stated (commencing at T89 L34) that at one point that morning he was carrying a mallet.

The accused explained (commencing at T90 L14) that he had noticed a paper bag on the ground outside the deceased’s premises in the arcade. He thought it contained food. He said that when he entered the deceased’s premises he yelled out “breakfast”, following which the deceased had started to “attack” him. He described (commencing at T94 L34) the deceased going “berko” by picking up a broom and attacking him with it. He described the altercation that followed and said (at T99 L38) that he “pulled out the weapon and lunged at (the deceased)” following which he disposed of it by throwing it into nearby premises. The accused had limited independent recollection of what he had said to the police at the time of his arrest but described himself (at T106 L36) as being “upset about what had happened”.

The accused said (commencing at T109 L26) that at the time of the incident he was “getting pills to calm (himself) down” which he later described (at T109 L38) as Rivotrol and Xanax. He also admitted taking Ice in the hours leading up to the incident.

The accused’s mother gave evidence (commencing at T154 L4) that in the early part of 2014 she observed the accused to be “erratic and jumpy” and “unsettled”. She explained (commencing at T158 L43) that there was a family history of mental illness and, in particular, a history of schizophrenia with which the accused’s uncle and eldest brother had each been diagnosed. She also gave evidence (at T159 L25) that the accused’s father was taking anti-psychotic drugs before he died in 2010.

The accused’s mother also said that she had spoken with the accused on the day of the deceased’s killing, following his arrest. She described him (commencing at T162 L21) as having a “wild” and “fearful” look on his face.

With the consent of counsel for the accused, the Crown tendered a bundle of medical reports and associated material detailing the accused’s history of mental illness. That material also contained evidence of medical assessments undertaken of the accused following his arrest. The entirety of that material was provided to Dr Allnutt and Dr O’Dea for their assistance in compiling their respective reports. In terms of the accused’s history of mental illness in the period leading up to the deceased’s death, the material establishes the following.

On 8 June 2011 Dr Adams, psychiatrist, provided a report to the accused’s then solicitors. At that time, the accused had been charged with offences of damaging property by fire, and break enter and steal. On that occasion Dr Adams expressed the following opinion:

On 1 November 2011 Dr Allnutt provided a report to the Director of Public Prosecutions in connection with the same proceedings. He reported:

In a supplementary report of 16 November 2011 Dr Adams said:

On 31 January 2012 the accused was taken into custody after being arrested for an offence of break enter and steal. Whilst in custody, he was seen to be standing backwards inside a dock with the door open, attempting to place his underpants (formed into a noose and tied to the top hinge of the open door) around his neck. He was taken to hospital and the following was recorded:

On 29 February 2012 the accused was in custody at Bathurst Correctional Centre where he was seen by Timothy Hodges, psychologist. Mr Hodges reported (inter alia) as follows:

On 18 January 2014 the accused was arrested for stealing. Whilst under arrest he said to police:

When placed into the police vehicle the accused was seen to be “ramming” himself into the side walls of the rear cage. He was taken to Cumberland Hospital where a mental health assessment noted that he had been “diagnosed as schizophrenia (sic) in gaol”.

The history recorded by the Triage Nurse recorded the following:

A subsequent mental health assessment recorded the following:

On 24 February 2014 the accused underwent psychiatric assessment at Cumberland Hospital. Past diagnoses of schizophrenia, auditory hallucinations and paranoia were noted.

A mental health assessment conducted on 25 February 2014 noted that the accused had suicidal thoughts, auditory hallucinations and paranoid delusions. Provisional diagnoses of a relapse of schizophrenia and substance abuse were made.

On the morning of 3 March 2014 (which was only 10 days prior to the death of the deceased) the accused was seen to be pushing a shopping trolley containing a bolt cutter into the rear entrance of the administration block of Blacktown TAFE. A witness followed the accused into a classroom and observed him standing at a whiteboard pretending to teach a class. The accused was writing several words on the whiteboard before turning and sitting at a desk. At that point, he pretended to type on a computer. A security officer attended and entered the classroom and observed the accused sitting at the computer and talking to himself. The security officer asked the accused to leave and said that he would escort him to the railway station. The accused followed the security officer to the rear of the building where he had left the trolley. The accused then left the area.

Later that morning, the police were alerted to the presence of the accused at the Centrelink office at Blacktown. The accused had entered the premises via a rear fire exit, put on a fire helmet and commenced talking to himself. He told Centrelink staff that he wanted to “lay on the train track and die” and said that he was hearing “voices”. When police arrived the accused said he wanted to end his life and that he intended to hit himself with a sledge hammer, stab himself and jump from the roof of the Centrelink building. When told he would be transferred to a mental health facility, the accused became aggressive, telling the police that he would stab, fight and kill anyone who came near him.

The accused was taken to Blacktown Hospital. He continued to state that he would fight, kill, stab and murder anyone who came near him. He stated:

The accused was examined by Dr Baheti, who initially decided that he should be released. After the police had expressed their concerns about the accused being released, Dr Baheti admitted him. The accused was then seen to violently head butt the concrete walls of the hospital building, and was restrained.

Later that day, police received a radio message stating that there was a patient (later identified as the accused) in the roof of Bungaribee House (which is part of Blacktown Hospital) threatening self-harm. Upon arrival, police were advised that the accused broke the bed in his room and used the timber from it to damage the roof and gain access to the roof cavity. He then climbed into the roof carrying various pieces of broken timber from his bed. Police gained access to the roof through a manhole. The accused ran away from them in an attempt to avoid apprehension. He managed to climb through a small window and then jumped onto the ground from the roof. Due to the significant police presence he was apprehended immediately.

As a consequence of those events it was determined that Bungaribee House was not a suitable location at which to house the accused. He was transferred to Cumberland Hospital with the assistance of police. When asked about his actions at Bungaribee House the accused said:

The accused was examined at Cumberland Hospital by Dr Rudas and Dr Baheti and his past psychiatric history was noted. A history taken from the accused’s mother (which she confirmed in evidence) was recorded as follows:

Further notes taken on the same day record the following additional history provided by the accused’s mother:

On 6 March the accused was examined by Dr Hoult, psychiatrist who noted:

The accused remained at Cumberland Hospital until 11 March 2014. On the day before his discharge the accused was interviewed by a social worker who noted (inter alia):

Burnt a building down 5 yrs ago – when first started hearing voices.

Medical assessments post arrest

The accused has undergone a number of medical assessments since being taken into custody. Whilst I do not propose to set out the results of those assessments in their entirety, I do note the following:

Two expert reports, one of Dr Allnutt of 12 October 2015, and the other of Dr O’Dea of 12 October 2015, were tendered in the trial. Dr Allnutt examined the accused at the request of his solicitor. Dr O’Dea examined the accused at the request of the Crown. Both doctors gave oral evidence before me. Both had been provided with the documentation referred to at [44] above, as well as with a transcript of the accused’s evidence.

In his report Dr O’Dea (commencing at [42]) diagnosed the accused as suffering from schizophrenic illness, complicated by polysubstance use disorder and a vulnerable personality with antisocial traits. Dr O’Dea went on to say (commencing at [45]):

Significantly however, Dr O’Dea also said (commencing at [48]):

When asked by the Crown Prosecutor to explain the basis of his opinion that the accused had available to him a defence of mental illness, Dr O’Dea responded (commencing at T192 L8):

He was then asked in cross-examination (commencing at T197 L33):

When asked by me whether, in terms of any defence of mental illness, he took the view that the accused did not know the nature and quality of his act, or that he did not know that what he was doing was wrong, Dr O’Dea responded (commencing at T197 L50):

In his report, Dr Allnutt concluded (at p. 14) that the accused suffered from paranoid schizophrenia, or a schizoaffective disorder, which was aggravated by the ingestion of various substances. Dr Allnutt took the view that the accused’s illness had been compounded by a persisting tendency to discontinue prescribed medication, and by a severe substance use disorder characterised by the use of cannabis, methamphetamines, heroin, alprazolam, cocaine and (possibly) alcohol.

Dr Allnutt specifically considered the accused’s mental state at the time of killing the deceased. He concluded that in light of the accused’s family history there was a likely genetic predisposition to the development of a chronic psychotic disorder such as schizophrenia. He noted, in particular, that at the time of the accused’s various hospital admissions between January 2014 and March 2014, the accused had reported auditory hallucinations and thoughts of being followed and being under threat.

Dr Allnutt concluded that the accused’s history was consistent with a propensity to engage in impulsive behaviour when in a psychotic state and when using substances. He said in particular (at p. 15 of his report):

When giving evidence Dr Allnutt was taken (commencing at T167 L42) to the contents of paragraph [48] of the report of Dr O’Dea, in which Dr O’Dea had expressed the view that the accused had a defence of mental illness available to him. When asked whether he agreed with that opinion Dr Allnutt said:

Dr Allnutt then continued (commencing at T172 L11):

Dr Allnutt was firm in his opinion (at T180 L20) that the accused’s psychosis was present prior to his act of killing the deceased. Importantly, in terms of a defence of mental illness, Dr Allnutt said (commencing T188 L10):

THE ISSUES

I am satisfied beyond reasonable doubt that the accused’s act of stabbing the deceased caused the deceased’s death. I am also satisfied that in stabbing the deceased the accused acted voluntarily. Indeed, the parties agreed that there was no issue as to either of those matters.

Ultimately the parties also agreed, having regard to the entirety of the evidence, that the first substantive issue to be considered was whether or not a defence of mental illness was available. It was agreed that in the event that I were to conclude that such a defence was not available, issues of self-defence and substantial impairment would arise. However, before turning to any of those issues it is necessary for me to consider a discreet matter raised by counsel for the accused.

In the course of his evidence (commencing at T110 L25) the accused said the following:

In respect of the accused’s assertion that he was “normal”, Dr Allnutt said (commencing at T179 L44)

Mr Skinner, who appeared on behalf of the accused, confirmed (commencing at T164 L1) that his instructions were “not to run a defence of mental illness”. He said that he considered himself bound in that regard. However he later accepted if the issue of a defence of mental illness arose on the evidence it should, notwithstanding his instructions, be addressed. Mr Skinner said (at T164 L12):

In the course of submissions Mr Skinner confirmed that position (at T210 L40) and conceded (commencing at T212 L33) that he could not “rationally argue against considering a defence of mental illness first before considering any other issue that might arise on the evidence”.

I was referred by Mr Skinner to a decision of the Court of Criminal Appeal in Dezfouli v R [2007] NSWCCA 86. In that case the appellant, after a special hearing conducted pursuant to s. 21 of the Mental Health (Criminal Procedure) Act 1990, was found not guilty, on the grounds of mental illness, of charges of manslaughter and maliciously damaging property by fire. Bell J (as her Honour then was) noted (at [43]) that in the course of the special hearing senior counsel appearing on behalf of the appellant had not acted in accordance with his instructions in putting to the jury that there was “no doubt” that the appellant was insane. Her Honour concluded (at [46]):

The present proceedings are a trial. They are not a special hearing. Both Dr Allnutt and Dr O’Dea came to the view that this accused is fit to be tried. Accordingly, her Honour’s observations as to the relevance of the scheme of special hearings have limited application to the present circumstances.

As I have noted, Mr Skinner accepted that in the present case a defence of mental illness is squarely raised by the evidence of Dr Allnutt and Dr O’Dea. In R v Foy (1922) 39 WN (NSW) 20, Cullen CJ observed (at 21):

For present purposes, I constitute the jury. In the circumstances, and given the opinions of Dr Allnutt and Dr O’Dea, the defence of mental illness must be considered, notwithstanding the accused’s stated position and his instructions to his counsel.

Section 38 of the Mental Health (Forensic Provisions) Act 1990 (“the MHFPA”) is in the following terms:

In the event that a special verdict is returned pursuant to s.38 of the MHFPA, the provisions of s.39 then apply:

I note that s. 37 requires that certain explanations be given to the jury where a question of mental illness is raised. As I constitute the jury in the present proceedings, I have had regard to the provisions of s. 37.

The principles applicable to a defence of mental illness

In order for a defence of mental illness to be made out, there must be evidence that at the time of committing the act causing the deceased’s death the accused was labouring under such a defect of reason, from a disease of the mind, as to not know the quality and nature of the act that he was doing or, if he did know it, that he did not know what he was doing was wrong: R v McNaughten (1843) 8 ER 718; R v S [1979] 2 NSWLR 1.

The test was stated by Dixon J in R v Porter (1933) 55 CLR 182 at 189-190 in the following terms:

In R v Stables [2014] NSWSC 697 Hidden J considered (commencing at [28]) the proper approach to be taken in a case where an accused is charged with a crime of specific intent, and a defence of mental illness is raised. His Honour noted that in R v Minani [2005] NSWCCA 26; (2005) 63 NSWLR 490 Hunt AJA (with whom Spigelman CJ and Howie J agreed) had said (at [32]):

Hidden J noted in Stables that there have been cases in which the issue has been approached in accordance with the decision in S, and in the absence of any reference to the decision in Minani. The approach in S involves determining whether all of the requisite elements of the offence have been proved before considering the availability of a defence of mental illness. I made reference to these issues in R v Brindley [2014] NSWSC 1274 and concluded (as had Hidden J in Stables) that the adoption of either approach in the circumstances of that particular case produced the same result.

In the present case, I have already concluded that I am satisfied beyond reasonable doubt that the accused’s voluntary act caused the death of the deceased. In my view, the approach set out in Minani, which follows that of the High Court in Hawkins, is the preferable one. Adopting that approach, and having already concluded that I am satisfied beyond reasonable doubt that the accused’s voluntary act caused the deceased’s death, I must proceed to consider the defence of mental illness. However, I should say that the adoption of the approach set out in S would lead me to be satisfied beyond reasonable doubt that in stabbing the deceased, the accused intended to inflict grievous bodily harm upon him. That would similarly lead to a necessity to consider the defence of mental illness. It follows that such defence arises for consideration, irrespective of the approach which is adopted.

I have already outlined the evidence of Dr Allnutt and Dr O’Dea. Both of them had available the voluminous material documenting the accused’s history of mental illness. Both concluded that the accused was suffering from a schizophrenic disorder at the time of stabbing the deceased.

Dr O’Dea was firm in his opinion that at the time of killing the deceased the accused was not able to reason about the circumstances with a moderate degree of sense and composure. He said that in his opinion the accused did not know that what he was doing in stabbing the deceased was wrong, a circumstance which he attributed to the accused’s schizophrenic illness.

Dr O’Dea acknowledged that in expressing these opinions he had obviously assessed the accused sometime after the event, such that he had, in effect, worked backwards. However, it is clear from his evidence that Dr O’Dea placed considerable weight on the material documenting the accused’s history of mental illness, some of which is summarised at [45] and following above. Importantly, Dr O’Dea made the point that although schizophrenic symptoms might, over a period of time, be seen to fluctuate in terms of their severity, a person with a schizophrenic illness is “very unwell through the whole process”.

Dr Allnutt took the view that at the time of the offending, the accused was experiencing a state of mind that had the capacity to impact, to a substantial degree, upon his understanding of events and importantly, upon his capacity to know right from wrong.

Dr Allnutt acknowledged that the present case was, from a psychiatric perspective, a difficult one. He explained that such difficulty arose, at least in part, from the fact that there was some evidence which supported the view that the accused felt threatened by the deceased’s actions “for real reasons”, rather than because of a delusional belief. However, he expressed the view that one particular factor which supported the existence of a defence of mental illness was the accused’s apparent sense that his actions in killing the deceased were somehow justified. He explained that justification which is derived from a delusional belief is an irrational justification, and one which interferes with the person’s ability to reason about the wrongfulness of his or her act. Ultimately, and despite his acknowledgement that the case was a difficult one, Dr Allnutt concluded that a defence of mental illness was open.

In my view, the opinions of Dr O’Dea and Dr Allnutt provide clear support for the conclusion that a defence of mental illness is made out. I accept their opinions that the accused was suffering from a schizophrenic disorder at the time of killing the deceased. Clearly, that is a disease of the mind. Accepting the opinions of Dr O’Dea and Dr Allnutt, that disease of the mind gave rise to a defect of reason on the part of the accused, which resulted in the accused not knowing that what he was doing was wrong, having regard to the everyday standards of reasonable people. For the reasons explained by Dr Allnutt, the accused’s evidence that he was “normal” at the time should be rejected.

If medical evidence as to an accused’s mental illness is unanimous, it cannot be rejected by a tribunal of fact in the absence of other material which casts some doubt on it: R v Afele [2014] NSWSC 366 at [68] and the authorities cited therein. The opinions of Dr O’Dea and Dr Allnutt, both as to the nature of the accused’s underlying mental illness and its effect on his actions in stabbing the deceased, are consistent. However, the opinion of Dr Zinatsa (set out at [36]-[37] above) is to the contrary. In those circumstances, the expert evidence could not be said to be unanimous. However, neither the Crown nor counsel for the accused submitted that I should accept the opinion of Dr Zinatsa over the opinions of Dr O’Dea and Dr Allnutt as to the accused’s mental state at the time of his offending. Dr Allnutt gave evidence (commencing at T178 L20) that although he had regard to Dr Zinatsa’s opinion, he concluded that the accused was mentally ill at the time of his offending. Importantly, in reference to Dr Zinatsa’s opinion, Dr Allnutt said (commencing a T178 L30):

The evidence indicates that Dr Zinatsa is in fact a Psychiatric Registrar. There is therefore no doubt that he was appropriately qualified to express the opinions set out in his report. However, as Dr Allnutt pointed out, there is no evidence at all as to the nature and extent of Dr Zinatsa’s assessment of the accused. What is clear is that unlike Dr Zinatsa, both Dr Allnutt and Dr O’Dea had a substantial amount of documentary material available to them to assist in forming an opinion as to the accused’s mental state at the time of killing the deceased. It is clear that Dr Zinatsa did not have that material. It is also clear that, as one might expect, both Dr Allnutt and Dr O’Dea placed significant weight on that material in reaching their conclusions.

In these circumstances, I regard the opinions of Dr Allnutt and Dr O’Dea to be substantially more reliable, and deserving of far greater weight, than that of Dr Zinatsa. I do not accept the opinion of Dr Zinatsa that at the time of his examination the accused was neither mentally ill nor mentally disordered.

It should also be noted, bearing in mind my observations in [103] above, that I invited both the Crown and counsel for the accused to draw my attention to any evidence which might cast some doubt upon the reliability of the opinions of Dr O’Dea and Dr Allnutt. Counsel for the accused did not point to any such evidence. The Crown faintly submitted that it would be open to me to conclude from the CCTV footage that the accused gave the impression of “acting normally” before he stabbed the deceased and that he was “coherent and descriptive” when later speaking to the police. However the Crown accepted that Dr Allnutt had specifically alluded to the fact that a person suffering from schizophrenia may appear objectively “normal”. Ultimately, the Crown accepted that in terms of the defence of mental illness there was not “a lot of scope” to go beyond the expert evidence.

For all of these reasons I am satisfied that the accused was suffering from a schizophrenic illness at the time of stabbing the deceased, which resulted in his not knowing that what he was doing was wrong. I am therefore satisfied that a defence of mental illness is established. In these circumstances it is not necessary for me to consider any of the remaining issues which were foreshadowed.

I am conscious of the fact that the members of the deceased’s family suffered a sudden and indescribable loss on the morning of 13 March 2014. Some of them have been present in Court during the course of the trial and have heard and seen parts of the evidence as it has been given. I am hopeful that the conclusion of these proceedings may assist in bringing them some degree of closure, and I extend the sincere sympathy of the Court to each of them.

For the reasons expressed, my findings and orders are as follows: