R v Krey (No 3)

1. [1]

   HIS HONOUR: The accused, Billy Krey, is charged that on 15 July 2017, at Whalan, he murdered Ioakima Sini (“the deceased”). At the time, the deceased was aged 55 and the accused was aged 19. At the commencement of the trial on 28 September 2020, which was a trial by judge alone, the accused entered a plea of not guilty.

2. [2]

   The cause of death was multiple stab wounds to the deceased’s upper body. The defence does not dispute that the accused killed the deceased, that act having been witnessed by a number of persons who knew the accused, at least by sight.

3. [3]

   The issue in dispute for determination at trial was the accused’s state of mind at that time of the stabbing. Pursuant to s 151 of the Criminal Procedure Act 1986 (NSW), the defence gave notice that it would rely upon forensic evidence to be adduced in its case from a psychiatrist, Dr Olav Nielssen, and a neuropsychologist, Dr Molly Schafer, as an evidentiary basis for contending that the accused is not liable to be convicted of murder, by virtue of s 23A of the Crimes Act 1900 (NSW) (“the Act”). In that scenario, the appropriate verdict would be manslaughter. The Crown also arranged for the accused to be assessed by a psychiatrist, Dr Stephen Allnutt, and a neuropsychologist, Dr Susan Pulman.

4. [4]

   Sections 18(1)(a) and the relevant parts of 23A of the Act provide as follows:

Relevant principles

1. [5]

   The Crown bears the onus of proving the charge of murder and doing so beyond reasonable doubt. If that is done, then the onus shifts to the defence to establish the elements of the partial defence of substantial impairment on the balance of probabilities. As this is a trial by judge alone, I note s 133 of the Criminal Procedure Act 1986 (NSW), which is as follows:

2. [6]

   I have already referred to the onus and standard of proof in relation to the charge of murder and how that shifts to the defence on the question of substantial impairment, if the elements of murder are satisfied. Other relevant principles are as follows.

3. [7]

   I must consider the evidence impartially and dispassionately, without prejudice or sympathy to either the accused or the deceased, or to any other person.

4. [8]

   Not all inconsistencies in the evidence need be resolved. Rather, I am to determine the issues of fact that are relevant to the elements of the charge and, if the elements of murder are otherwise made out to the requisite standard of proof, the partial defence. In doing so, I bring to bear my common sense and life experience.

5. [9]

   I must be conscious of the difference between evidence which I regard as reliable, and evidence of a witness which I accept is honestly given, but which may nevertheless be unreliable.

6. [10]

   I am not obliged to accept the whole of the evidence of any one witness; I may accept some parts and reject other parts, if I find some part of that evidence to be unreliable.

7. [11]

   In drawing inferences, I must be satisfied that they are reasonable and drawn from the facts that I find established by the evidence.

8. [12]

   The accused exercised his right of silence in the trial. I draw no inference adverse to him by him so doing.

9. [13]

   I note that the accused has no criminal record other than a matter of shoplifting. Although the defence has not formally raised the accused’s good character, there is no evidence of past unlawful behaviour by him and I take that into account in his favour.

10. [14]

    In relation to the opinions of the forensic experts, I note that the weight to be attributed to their opinion evidence is dependent upon the reliability of the material provided to them.

11. [15]

    I have careful regard to the submissions that have been put to me by the Crown and defence in their addresses.

12. [16]

    The verdict must be according to the evidence and the directions of law that I find to be appropriate.

An overview of the stabbing

1. [17]

   The accused resided in Whalan at an address that I will identify with a pseudonym of Number 93, Coulter Street (“Number 93”). It was a double-storey semi-detached townhouse, being the Western-most townhouse in a row of six that lay approximately East-West. To the South, the row backed onto Coulter Street. To the North was an unfenced grassed common area (“the common area”). Facing onto the common area from the North was another row of townhouses, which backed onto a street that I will refer to as Warner Street.

2. [18]

   A broad concrete footpath (“the path”) ran through the middle of the common area in the same East-West configuration, with narrower paths radiating off to the North and South, to the entrances of the individual townhouses on both sides of the common area. To the West, the footpath crossed another of similar width that lay North-South. The path continued in an Easterly direction for at least a kilometre, through suburban Whalan.

3. [19]

   The parts of the townhouses that faced their respective streets had fenced-in yards, so that although the dwellings bore the street addresses, in reality they were the back yards and the front of the two rows of townhouses were the sides that faced the common area. Number 93 had steps leading up to a small porch, where the entrance was located. There were windows on both sides of the door.

4. [20]

   Resident with the accused were his girlfriend, AJ, who was aged 15 at the time, his mother, Renai Krey (“Ms Krey”), and a brother, KK, who was aged six.

5. [21]

   On 15 July 2017, which was a Saturday, the accused awoke at about 4pm in his bedroom on the first floor of his house, having been asleep since the night before. He awoke in an angry mood and almost immediately fell into an argument with his mother, apparently about a $50 note that he believed she had taken. They went downstairs to the living room. He stood over his mother, who was seated on a lounge, alongside KK. At one point, he raised his arm towards her, and she cowed with her hands over her head. AJ, who was seated behind the accused, stood and tried to intervene by holding the accused in a hug from behind. He pushed her away, causing her to fall onto a coffee table. Ms Krey then left the house, taking KK and AJ with her. They walked in an Easterly direction along the common area, headed to a friend’s place.

6. [22]

   The accused was seen by neighbours to emerge through the same entrance, look around and move about the outside of Number 93, then return inside.

7. [23]

   The deceased resided in a house on the Northern side of Warner Street. At the time of these events, he was visiting the occupants of a house in Warner Street, which was opposite his and faced onto the common area. The principal resident of that house was Anne Marie Daniels, and the house was referred to in that micro-community as “Danielle’s house”. It was diagonally to the East of Number 93.

8. [24]

   Ms Krey spoke briefly with the deceased as she walked past the vicinity of Danielle’s house. Shortly afterwards, the deceased was seen to walk to the door of Number 93 and knock. The deceased called out to the accused. The accused was seen at a window to the side of the door but did not open it. The deceased left and walked East along the common area. Shortly afterwards, the accused was seen to leave Number 93, walk East along the common area and meet up with the deceased. Witnesses saw the accused repeatedly stab the deceased. Some recollected them facing each other as this occurred, the accused repeatedly stabbing the deceased to his lower torso and chest. Others saw, at one point, the deceased with his back to the accused, receiving blows to his back. Eventually, while the deceased was facing the accused, he crumpled forward and to the side. Some witnesses said the deceased fell on the accused, who also fell to the ground under the deceased. Other witnesses said that the deceased fell to the ground and then the accused straddled him, continuing to stab him. At least two neighbours approached the two men while this was occurring and described verbal and physical interactions with the accused.

9. [25]

   When confronted, the accused retreated towards Number 93, disappearing from sight from the common area down the Western side of Number 93, towards Coulter Street.

10. [26]

    The deceased was unresponsive to first-aid efforts by members of the community. Police and paramedics arrived. He was taken to hospital and pronounced dead shortly afterwards. On all eyewitness accounts except one, the deceased’s body remained where he fell until it was removed by ambulance officers. That position which, it follows according to the majority of eye-witnesses, is where the deceased was stabbed, was adjacent to two apartments further to the East of Number 93. According to a scaled map, it was on a grassed area 2m South of the path and approximately 13m from the steps leading to the porch of Number 93.

11. [27]

    Shortly afterwards, the accused arrived on foot at the house of his paternal grandfather, James Bobak, which was approximately 1.5km away in the neighbouring suburb of Emerton. Mr Bobak gave evidence that the accused told him: “I think I hurt someone”. The accused’s clothing was bloodied. Mr Bobak told the accused to have a shower and gave him fresh clothing. Shortly after the accused finished showering, the police arrived and arrested him. A toxicology report on a sample of the accused’s blood returned a negative result for alcohol and drugs, except for cannabinoids, but at a quantity that was so small it could not be quantified.

12. [28]

    The post-mortem analysis revealed that the deceased had received 12 sharp force injuries. Four of these wounds had both entry and exit points, making 16 apparent wounds to the surface of his body; five to the back of his torso, seven over the abdomen, one to the left side of his face and three to his left arm. Only two of the wounds to the deceased’s torso caused “severe injury”, being one to the left side of the back which injured the deceased’s left lung and heart, and one to the right side of the back of the torso, which injured the right lung, right kidney and liver. Two of the wounds were 16cm deep and one was between 15cm and 18cm deep. The deceased had a blood/alcohol content of 0.232g of alcohol per 100ml of blood.

13. [29]

    According to the autopsy report, the height of the deceased was 182cm and his body weight was 105kg. The height of the accused is 185cm, according to Justice Health records.

14. [30]

    The stabbing of the deceased, in a public place in view of his neighbours and friends, was a traumatic experience for those who witnessed it. I note that the deceased’s high blood/alcohol content, which was more than four times the maximum blood/alcohol concentration for driving, may explain why he was unable to react defensively to the attack upon him by running away, fighting back or calling out for help.

The case for the Crown

1. [31]

   In its opening, the Crown noted that the issue in the trial was whether the defence could establish to the requisite standard the partial defence of substantial impairment and stated its position in relation to it:

The case for the defence

1. [32]

   The defence opened that the forensic evidence would establish that the accused was substantially impaired at the time of the stabbing, pursuant to s 23A of the Act. The defence relied primarily upon the evidence of Dr Nielssen, in his report dated 17 June 2018, to the effect that the accused had a mild intellectual disability. Alternatively, Dr Pulman, Dr Allnutt and Dr Schafer had also concluded that s 23A of the Act was open to the accused, on different bases. The defence stated that it would not be submitting that the accused qualified for the defence of mental illness.

2. [33]

   The defence anticipated that medical reports and records would establish that the accused, while in utero, was exposed to alcohol and prohibited drugs, consequent to addictions suffered by Ms Krey and that, over the span of his life, the accused has been diagnosed with a range of mental conditions including an attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, “severe longstanding global delay” and “receptive and depressive language delay”.

An analysis of the evidence of the stabbing

1. [34]

   In all, eight witnesses gave evidence of having witnessed all or part of the stabbing, although some did not initially realise that the accused was stabbing, rather than punching, the deceased. An additional two witnesses gave evidence of the immediate aftermath and the statement of a third person who arrived immediately after the stabbing was tendered without objection. There were differences between the eight accounts of the stabbing, but there were certain common features, which are relevantly as follows:

2. [35]

   Most of the variations in the witnesses’ accounts of the stabbing are inconsequential to the issues of fact in the trial, although, as I note below, they may be pertinent to the testing of a witness’ credibility, where that witness has also given evidence of observations that are relevant to an issue of fact.

3. [36]

   When hearing and reviewing the evidence of witnesses to the stabbing, I have been particularly conscious of any evidence that potentially offers insight into the accused’s motivation and his degree of awareness of his actions at that time.

4. [37]

   Ms Krey died in 2018. An amended version of her police statement, made by her on the evening of the stabbing, was read. She stated that the accused visited Mr Bobak “quite a lot”. He also frequently visited Rebecca, a “close family friend [who was] about 39 years old”. There was evidence that this was a reference to Rebecca Palu, who lived approximately 800m to the East of Number 93.

5. [38]

   Ms Krey stated:

6. [39]

   AJ gave evidence. She had met the accused about three months before the stabbing. She and the accused initially lived with Mr Bobak for “a week or two” and then moved in to Number 93. On the day in question, she and the accused woke at about 4pm. The accused had an argument with Ms Krey over a $50 note that the accused was missing. The argument started in their bedroom and moved downstairs, to the lounge room. AJ followed them downstairs and saw the accused standing over his mother, who was seated on a couch, and he was raising his fist to her. KK was seated on the lounge alongside his mother. AJ grabbed the accused from behind around the waist and tried to pull him back, but he resisted and shook her off, causing her to fall on to the coffee table. AJ and Ms Krey decided to leave and go to “Rebecca and Willy’s place” until the accused calmed down.

7. [40]

   AJ said that, during the argument, “I don’t remember exactly what was said”. She said that the accused did not hit her or his mother.

8. [41]

   KK was interviewed by police on the night of the stabbing. The interview was recorded and tendered. He said that the accused was angry at their mother and he did not recall what the accused had said to her. KK said:

9. [42]

   KK said: “And my mum did this”, putting his hands up to protect his face. He said: “[the accused] was smacking her”. He said: “[The accused] hurt [AJ]”, who “fall down the table”.

10. [43]

    In her statement, Ms Krey said:

11. [44]

    AJ said the last time before the stabbing that she saw the accused was when he was inside the house. She said they saw the deceased standing outside Danielle’s house and that the deceased said:

12. [45]

    Jesse and Natalie Kelly lived in a townhouse almost directly opposite Number 93, so that the two townhouses faced each other at a slight angle across the common area. Mr Kelly gave evidence that his attention was first sparked when he heard a woman yelling. He saw a young woman emerge from Number 93, followed by Ms Krey, who he knew by sight, and KK. When they were in front of their townhouse, as they walked away, the older woman (Ms Krey) said to the younger woman (AJ): “He did hit you. We’ll go up the top of the alleyway and wait for the police”.

13. [46]

    Mr Kelly’s evidence was that about three to five minutes after he saw the party of three leave Number 93, the accused came out onto the porch, looked to both sides, came down the steps, looked around the side of the dwelling, then went back inside and closed the door.

14. [47]

    Mr Kelly then saw the deceased calmly walking to Number 93 from the direction of townhouses to the East and opposite Number 93. The deceased knocked on a window alongside the door. There was no answer, and he called out: “You shouldn’t be hitting women”. Again, there was no answer, and after a “minute or two”, the deceased turned and walked away to the East, diagonally across the front of Number 93 and their neighbour’s yard.

15. [48]

    Mr Kelly then saw the accused emerge from the side of the house and, at a “moderate pace”, approach the deceased. When the accused was “a metre, a metre and a half” away, the deceased turned around. Mr Kelly “slightly remember[ed]” the deceased asking: “Why did you hit your girlfriend?” and then the accused stabbed the deceased with a knife held in his right hand. Mr Kelly described the knife as: “more of a medieval thing, about eight to 12 inches long with a scallop taken out near the handle”. The first knife blow was to the deceased’s “left torso or rib area”. Two or three further knife blows followed in quick succession to approximately the same area, after which the deceased fell forward towards the accused, then rolled to his right and fell onto his back. The accused rolled with him, then kneeled or sat on the deceased’s pelvic area and continued to stab him. Throughout the confrontation, the deceased did nothing other than look at the accused. Mr Kelly did not hear them speak to each other. Mr Kelly was asked if he heard “anything said at all” by the two men and answered: “Not that I can remember … no”.

16. [49]

    Mr Kelly called out to the accused, “Stop”, but there was no reaction. He said “it seemed like he didn’t hear me or anything”. He called out “knife!” to alert his wife, Natalie Kelly, and approached the men. The accused jumped up and came towards him, staring at him, holding his arms out to the side at shoulder height, knife in his right hand, yelling a few times, “What?” Mr Kelly grabbed a metre-long tree branch that was nearby and started “back-pedalling”. As he did so, his wife called out “to call the cops”. The accused turned and ran to the side of Number 93 and out of sight.

17. [50]

    Ms Kelly said that, as Ms Krey walked off with KK, she heard her say to KK: “He’s hit her. Let’s go ... We’re leaving … I’m going to call the cops”. She saw the accused walk from the front yard of Number 93 to outside Danielle’s house.

18. [51]

    Ms Kelly then heard a “commotion” with the accused. She said:

19. [52]

    Ms Kelly said that the accused continued to Number 93 where he entered and closed the door behind him. Shortly afterwards, she saw the deceased walking along the common area footpath from the area of Danielle’s place, towards Number 93. He knocked on the door, saying “I just want to talk ... You’re not, I don’t want you to get in trouble, like you shouldn't have hit her, let’s just talk this out”. There was no response, although she saw the accused “peek[ing]” out through a window. The deceased then walked back towards Danielle’s house.

20. [53]

    Ms Kelly said that she next noticed the accused walking at a fast pace towards the deceased, who was still walking away at a normal pace. They wrestled, and she heard the deceased say: “I just want to talk to you about it”. They went “down to the ground”. She thought the incident was becoming serious, so she took her children inside and remained there for three to five minutes.

21. [54]

    Ms Kelly said that when she came back outside, she saw her husband about to “intervene”. He came within a metre of the two men while they were on the ground. She then saw the accused walking, “fast paced”, to his home and go inside, while the deceased was getting up from the ground. She went back inside her house. She came back out again and saw the accused come around from the side of his house and walk “really fast” towards the deceased, who was facing towards the accused. She said: “I just saw him walking really fast up to [the deceased] and he stabbed him about six times. It was all very quick”. She then took her children back inside, as her husband called out: “knife, he’s got a knife”. The deceased fell to the ground. Ms Kelly yelled out that she was “calling the cops” and went back inside for a few seconds to get her mobile phone. She came back outside and rang Triple-0. The accused got off the deceased and ran away.

22. [55]

    Brooke Lupton and Jacob Lupton were siblings, who were visiting at Danielle’s house at the relevant time.

23. [56]

    Ms Lupton said that she spoke to the deceased at Danielle’s house. She and her brother then left and made their way East of that house. She heard a male voice yelling and saw two women and a boy walking in a direction towards her. Ms Lupton heard a woman, who in her statement made on 15 July 2017 she referred to as “Renee”, say: “Hurry up, he said he’s going to stab us. I’ve contacted the police. I’m sick of this shit”.

24. [57]

    Ms Lupton then heard the deceased, who she saw in Danielle’s front yard, say: “Just let them go for a walk. I’m sure they’ll be back”. She turned back around and saw a young man moving his arms in a punching motion to the stomach area of the deceased, who was in front of the young man. They were positioned “on the opposite side of Danielle’s”. She marked their positions on a sketch of the relevant part of the common area which approximately coincided with positions marked by other eyewitnesses as to where the stabbing occurred. She said that the deceased fell to the ground and the young man ran off, towards Number 93.

25. [58]

    Mr Lupton said that he went to the deceased, who was lying on his back on the ground. He saw people rendering first aid. He rang Triple-0, which he agreed was at 5:34pm. He said at that time it was dark.

26. [59]

    Ms Burns was with Brooke Lupton and Jacob Lupton. She said that after leaving Danielle’s house, she heard a girl screaming, and saw a woman running with a little boy and a young girl along the “alleyway”. The woman said that “some guy was going to stab them”. Ms Burns said she walked in the direction they had come from:

27. [60]

    The Crown tendered an edited statement of a eyewitness, Margaret Ah-See. She stated that she was in the company of Jacob Lupton and Brooke Lupton that afternoon. Her observations were of the deceased, apparently within minutes of the stabbing having occurred. She called Triple-0 at 5:34pm.

28. [61]

    Ms Butler and her partner Mr Edwards lived in the townhouse immediately to the West of Danielle’s house. Ms Butler was inside her house. She stated:

29. [62]

    Ms Butler saw that Ms Krey was with KK and AJ and returned inside. Shortly afterwards, Mr Edwards went outside to assist with the deceased, after he had been stabbed. Ms Butler joined him in giving assistance, administering chest compressions. She noticed that another resident, Maree Templeman, was in the area in the front of her yard; she was not near the deceased.

30. [63]

    Mr Edwards said he was inside with his wife and their four children when he heard the deceased’s voice, which he recognised, coming from outside. Mr Edwards said: “It wasn’t so much arguing, it was just his voice, and it appeared loud and it didn't seem right”. He elaborated that it was something like “Oi”, or “hey”. He went outside and saw the deceased and the accused standing about a metre apart. The deceased was unsteady on his feet, stumbling backwards, and fell sideways to the ground. Mr Edwards did not see any hand movements from his perspective, which was from behind the deceased.

31. [64]

    Mr Edwards said that he asked the accused: “What happened … what have you done?” He was asked in evidence-in-chief:

32. [65]

    Mr Edwards later elaborated:

33. [66]

    Maree Templeman gave evidence that she saw Ms Krey with AJ and KK, running in an Easterly direction in the common area. She said that Ms Krey was “very frightened, very scared … very agitated”. Ms Templeman said that both Ms Krey and AJ were crying.

34. [67]

    Shortly afterwards, Ms Templeman saw the deceased with his back to her, facing the accused:

35. [68]

    Ms Templeman said that the deceased swung back around to face the accused. There were more punching motions to the front of the deceased, who then fell forwards onto the accused, and they both fell to the ground, the accused falling backwards with the deceased on top of the accused.

36. [69]

    Ms Templeman said that she ran to assist the deceased, putting her hands underneath him and pulling him off the accused. The accused then “jumped to his feet and he swished the knife towards me”. She indicated a swinging motion in front of her chest. She said that Mr Kelly intervened, telling the accused he “wouldn’t do that if I was you”. The accused then ran off.

37. [70]

    Ms Templeman explained where she dragged the deceased, having regard to the aerial photograph, and drew it on a map. It equates to a distance of about eight metres. She said that it took her a “couple of minutes” and that she could not recall if Mr Kelly and Mr Edwards, who were there at the time, offered to assist her.

38. [71]

    Ms Daniels was the person known locally as “Danielle”. She gave an account that during the afternoon, the deceased was at her place. At one point, she saw Ms Krey with her son and a young girl walking away. The deceased went outside and she saw him walk to the front door of Number 93. The door opened and the deceased appeared to have a conversation with Ms Krey that lasted “About a minute, two minutes”. He left and walked in an Easterly direction, following the accused, who was walking in front of him. The accused then abruptly turned around and stabbed the deceased four times in the stomach area, causing him to fall backwards to the ground.

39. [72]

    Mr Bobak gave evidence that the accused arrived at his house in the late afternoon on the day of the stabbing. He said that the accused was “covered in blood … shaking like a leaf and … breathing … like he must have been running”. The accused was not wearing shoes. The blood was “dripping”, so Mr Bobak told the accused to take his clothes off and have a shower. Mr Bobak said:

40. [73]

    Mr Bobak’s memory of what was said was refreshed from his interview by police that night:

41. [74]

    Mr Bobak had also told police about a conversation that occurred after the accused had a shower:

42. [75]

    Mr Bobak said that as the accused sat in the lounge, he was looking out the window. The accused said, “Oh the police are here”, and quickly walked out to the backyard, and then there was a knock at the door. Mr Bobak opened the door to the police. The police went to the backyard, but the accused was walking back in the door as they did so. One of the police officers gave evidence that they arrived at Mr Bobak’s residence at 6:42pm.

43. [76]

    The accused was interviewed in the presence of a support person, Rebecca Palu, commencing at 1:38am on Sunday 16 July 2017. The video-recorded interview of him was admitted into evidence.

44. [77]

    The accused’s account was as follows. He went to bed about 11pm the night before, and slept through until the following afternoon. He said (deleting repeated words):

45. [78]

    The accused recalled yelling at his mother and AJ, but could not recall what he had said. He thought the argument started upstairs. He was feeling angry:

46. [79]

    The accused thought the argument with his mother was about money but could not recall any further details. He accepted that he could have been violent or threatening to his mother in the course of the argument, but thought she, AJ and KK left the house because they hated him. He did not recall pushing AJ. He thought his mother went outside first but could not recall if she was by herself. The accused said that the deceased came to him at his house. The accused said:

47. [80]

    He then went out:

48. [81]

    When asked what the deceased had said to him, he replied:

49. [82]

    The accused recalled:

50. [83]

    The accused said:

51. [84]

    The accused said that he could not recall if that man said anything to him: “He might’ve but I don’t know”. He thought he said something to that man, but could not recall what it was.

52. [85]

    The accused was also asked:

53. [86]

    Later in the interview, the accused said:

54. [87]

    The accused was asked:

55. [88]

    The accused said the knife was in his left hand, although he is right-handed. I note that no eyewitness described the knife as being in his left hand at any stage of the incident, although some could not recall which hand was holding the knife. The accused did not remember being on the ground with the deceased.

56. [89]

    The accused said he did not remember taking out his knife or stabbing the deceased and that he felt like crying, “Cause I didn’t want to hurt him”. When asked, why he hurt the deceased, he responded: “I don’t know”.

57. [90]

    The accused said he knew the deceased and that “I used to call him my uncle”, which was what everybody called him. He denied having had “any trouble” with the deceased previously. He said: “Oh, he’s an all right person when he wants to be but when he gets on alcohol and that”.

58. [91]

    The accused said that the man with the two poles, which he described as being metal poles, came within four or five metres of him and he thought the man said something to him, but he could not remember what it was. He recognised him as someone who lived “across the road, I’m pretty sure”. He was asked if he saw the deceased at that stage, and answered “No, not really, I just went around the corner and just started running”.

59. [92]

    The accused said that he told his grandfather “I think I stabbed somebody”. He was asked: “Who did you think you stabbed?” He replied:

60. [93]

    The accused said that the knife was near a “seat” at the “front of my house”. He had put it there “probably yesterday”. He did not know why he had done so. He demonstrated the length of the blade, which police estimated to be about 15cm. He described it as a “decorative knife” that he had bought from a tobacconist about a year before. He had previously stored it in his room, in a drawer. When he picked up the knife, he put it in his pants. His explanation for taking it with him was that he normally took a knife with him when he went for a walk, because “BFL boys and that, they’re always walkin’ around wanting to rob people, take people’s stuff and that”. He said that if that happened, he would:

61. [94]

    The accused said that he dropped the knife on his way to his grandfather’s place because it had blood on it and he might get “pulled up … didn’t want to get caught”.

62. [95]

    The accused said that the only drug he used was marijuana, “once in a while”. He said he had smoked “two joints” the night before. He described its effect on him as that “It calms me down … Makes me normal, like I can think”. He said he drank alcohol, but the last time he did so was about three weeks previously. He was dependent on his mother financially. He left school in Year 9 or Year 10, in Armidale. He said that he could not write and his reading was “Not very good”.

63. [96]

    The accused was asked about documentation police had retrieved from his grandfather’s residence that referred to him having ADHD. He was asked if he took medication for that condition and replied: “I stopped taking my pills”. He said that he was on “12 or 13 … pills a day [for all] sorts of different things”. He said he stopped taking them four years earlier, although I note that his grandfather, Mr Bobak, said that the accused stopped taking medication when he left his place to live with Ms Krey.

64. [97]

    The accused said he had experienced blackouts before, but not for as long as this one.

65. [98]

    The knife used by the accused to stab the deceased was not recovered. Police asked the accused, when he was arrested at his grandfather’s place, where it was, and he replied: “I threw it away up near the flats in the park”. Police later clarified with the accused that he meant some flats on the route that he took to his grandfather’s place. A line search was conducted at that location, but they were unable to locate the knife.

66. [99]

    The accused told police that night that he had used one of his “collectable knives”. AJ said that the accused collected knives. She described one in particular that the accused kept on a sofa in their bedroom and which she last saw there at about 4pm on the afternoon of the stabbing. They used it to operate their bedroom door, which apparently had a jammed lock. She estimated it was 10 to 12in in overall length.

67. [100]

    Mr Edwards described the knife that the accused held when he spoke to him, as “large” with a “large handle” but couldn’t further qualify its length or features. Ms Templeman described the knife in her statement as having a blade that was about 17cm long and hook-shaped. However, she also agreed that she was not accurate with metric measurements.

Findings of fact in relation to the argument at Number 93 and the stabbing

1. [101]

   The accused had little recollection of the detail of what occurred in Number 93 immediately prior to the stabbing. I note that the account in Ms Krey’s statement that the accused threatened to stab her is not corroborated by either AJ or KK. However, both AJ and KK said that, although they did not recall what the accused said to his mother, he was yelling at her.

2. [102]

   I take into account that Ms Krey’s account is hearsay, since it was admitted into evidence in her statement and she was not available to be cross-examined on it. Pursuant to s 165(1)(a) of the Evidence Act 1995 (NSW), I approach her evidence on the basis that it may be unreliable. I also take into account that the defence does not concede that the words attributed to the accused, that he threatened to stab his mother, were in fact said. On the other hand, the statement was made within hours of the events described therein and it is not suggested that Ms Krey had a motive for being untruthful in relation to the accused’s alleged threat. Within a few minutes of the argument inside Number 93, as she made her way towards Rebecca’s place, Ms Krey was heard by Ms Lupton and Ms Burns to say to AJ and KK that “he threatened to stab us”. I accept the evidence in Ms Krey’s statement that the accused threatened to stab her in the terms alleged by her, during the course of the argument.

3. [103]

   As to KK’s allegation that the accused struck Ms Krey, AJ expressly denied that either she or Ms Krey were struck by the accused. Ms Krey did not allege in her statement that she was struck. I am not satisfied that the accused struck either Ms Krey or AJ. I accept AJ’s evidence that the accused inadvertently pushed her onto the coffee table when he resisted her attempts to restrain him. In coming to that conclusion, I do not accept the account of Ms Krey in her statement to the extent that it suggests that the accused deliberately threw AJ against the coffee table.

4. [104]

   The evidence of Mr Lupton and Ms Ah-See that they both rang Triple-0 at 5:34pm was unchallenged and, therefore, I accept that the stabbing occurred moments before that time. Mr Kelly described the light thus: “There was still a bit of daylight left, still visible around”. Ms Kelly said: “It was still daylight”. Mr Edwards agreed that, immediately before the incident, it was “still daylight”. Ms Templeman said: “I think it was dark, or little bit getting dark, I’m unsure”. Senior Constable Fulton and a fellow officer were the first police to arrive on the scene, at 5:39pm. She agreed the daylight at that time was fading and said that it was “relatively dark”, with some streetlights on.

5. [105]

   I conclude that, at the time of the stabbing, there was sufficient natural light for the observations of all witnesses to be unaffected by poor visibility due to fading light.

6. [106]

   This scenario comes only from the evidence of Ms Kelly. This aspect of her account is quite different from most of the others. According to her, the accused had been in the vicinity of Danielle’s house after Ms Krey had departed for Rebecca’s house, and the deceased had followed the accused back to Number 93. Her version had two discrete physical confrontations between the accused and deceased which, if accurate, was evidence of significant pre-planning by the accused in relation to the knife attack; he broke off the fight on the ground, went home and returned to stab the deceased.

7. [107]

   In terms of her overall credibility, there can be no doubt that Ms Krey left Number 93 with KK and AJ, but Ms Kelly had no memory of anyone accompanying Ms Krey and KK as they left. She agreed that she had seen a young girl about 15 years old there “a lot”, but did not see her leave with the others. In cross-examination, she agreed to differences between her account and her statement that she made to the police the day after the stabbing. In her statement, she said that when the deceased went to the accused’s house, the accused had briefly opened the door. She had not referred in her statement to the accused having “peeked” through a window.

8. [108]

   Accordingly, I disregard Ms Kelly’s version where it is inconsistent with the evidence of other eyewitnesses, in particular, Mr Kelly, who was near that witness whenever she was outside throughout the incident.

9. [109]

   The account given by Ms Daniels, in particular, her account that the deceased had a conversation with Ms Krey at the front door of Number 93 and then followed the accused, who walked away from the house, is at odds with all the other accounts, to a point that I place no reliance on those parts. She also said that she saw the accused that morning “sitting … on the top verandah having a smoke”, whereas the evidence of AJ, Ms Krey and the accused in his account to police that night, was that he had slept through from the night before until about 4pm. She was a witness who had difficulty responding to questions asked of her and at times was quite hostile. I conclude that the events she witnessed were so distressing to her that the reliability of her evidence was affected to a point that I place no weight on her account that the accused left Number 93 walking in front of the deceased.

10. [110]

    Having regard to the evidence from Mr Kelly, Ms Kelly, Ms Lupton and the accused’s account to police to the effect that the deceased said something to the accused before he was stabbed, I am satisfied that this did occur.

11. [111]

    A viewing of the video-recorded interview indicates that the accused appeared to understand most questions asked of him and was responsive to questions. I considered that his demeanour and the content of his answers were consistent with him truthfully responding to the questions asked of him.

12. [112]

    Ms Templeman’s evidence that the accused swiped at her with the knife is not corroborated by any other witness, nor was it mentioned in her statement to police made that night. In particular, her claim that Mr Kelly intervened at that point and threatened the accused to not stab Ms Templeman was not corroborated by him. As to the reliability of her evidence, neither Mr Kelly nor Mr Edwards gave evidence of Ms Templeman lifting the deceased off the accused or dragging his body away. As I noted earlier, the post-mortem analysis indicated that the deceased’s weight was 105kg. Ms Templeman agreed that her lifting off the deceased and dragging him away was not mentioned in her statement. Given her evidence that the accused had run away, there would have been little point in dragging him that distance.

13. [113]

    Ms Templeman agreed that the words she attributed to the deceased, “Little shit no respect”, did not appear in her statement. In addition, there was no reference to the deceased ever having his back to the accused.

14. [114]

    Having regard to the aspects of Ms Templeman’s evidence as to the stabbing that are unsupported by the other witnesses, and in view of an absence of any corroborative evidence that the accused “swished the knife” towards her, particularly from Mr Kelly, I am not satisfied that the accused attempted to stab Ms Templeman.

The accused’s history

1. [115]

   Twenty-six documents were tendered by the defence as to the history of the accused’s mental health and welfare (“the documentary material”). There was no overview of that material or other aide to its interpretation. I consider it in chronological order of the events and consultations to which the reports refer. By way of an overview of that material as to the accused’s movements, complemented by information from the accused and his family that was obtained by forensic experts who prepared reports for the trial, the following picture emerges.

2. [116]

   The accused was born in Sydney, the second of four children. His mother initially raised him. His parents had significant domestic violence and drug and alcohol issues and separated when he was aged about four. At that time, in 2002, his father received a lengthy prison sentence for a crime of extreme personal violence, only being released in 2017. When the accused was aged five, the family relocated to Armidale. According to some of the documentation, this was pursuant to the family being put on the witness protection program.

3. [117]

   By the age of eight, the accused was in foster care, but after about eighteen months, he was moved back into his mother’s care in Sydney. That arrangement did not last, and by age 10 he was in a foster placement back in Armidale. On 2 April 2009, at which time the accused was aged 10, by an order of the Children’s Court sitting at Tamworth, he and his (then) two siblings were made wards of the state. In November 2010, when he was aged 12, he was placed with his maternal grandmother. Two months later, he was removed from her care, when she was taken off a train while suffering methadone withdrawals. On 18 August 2011, orders were made restoring the care of the accused, then aged 13, to his mother in a phased process of supervision over the ensuing two years. However, it appears that this did not eventuate. On 5 September 2013, when the accused was aged 15, an order was again made, making him a ward of the state. As noted by clinical neuropsychologist Dr Schafer, by that date the accused had:

4. [118]

   The accused left school during the course of Year 10 and attended TAFE for a few months. He has never been employed. In July 2016, when aged 18, he moved from Armidale to Sydney, initially living with Mr Bobak. After several months, he moved in with his mother, at Whalan.

5. [119]

   Dr Peter Louda was a Sydney-based general practitioner. In a report dated 7 January 2008, Dr Louda noted that he originally saw the accused on 18 July 2002, at which time, I note, he would have been aged four years and two months. At that time, Dr Louda diagnosed him as having ADHD and referred him to a paediatrician, Dr R McCarthy. However, due to “multiple family problems”, the reference was not followed up:

6. [120]

   Dr Louda’s report is further considered below in the context of other reports, which I refer to in chronological order.

7. [121]

   Two reports by Dr Julie Parle, a Sydney-based consultant paediatrician, were tendered, both dated 29 April 2003. One of the reports appears to relate to an assessment of the accused conducted some weeks before that date. At the time, the accused was still aged four. Dr Parle stated that the accused had “early onset of severe disruptive and aggressive behaviours”. She noted that the parents had separated seven months before, “due to long-standing history of domestic violence”. She continued:

8. [122]

   Dr Parle noted a family history suggesting learning difficulties and ADHD on the accused’s father’s side and, to a lesser extent, on his maternal side. She commenced the accused on a course of Ritalin for his ADHD and Catapres to assist with his sleeping difficulties and recommended that he be reviewed in three weeks’ time.

9. [123]

   The other report refers to the accused having been reviewed the previous day, on 28 April 2003. Dr Parle noted that, following the commencement of the accused on Ritalin and Catapres:

10. [124]

    She also noted that the family were to move to Armidale in the next few weeks. She recommended that the accused’s parents arrange to see Dr Catherine Wiles in Armidale for ongoing consultations, as well as the local NSW Department of Education or Community Health services, to arrange a language assessment and attempt to place him in pre-school.

11. [125]

    Dr Wiles, a consultant paediatrician based in Armidale, saw the accused on 11 June 2003, when he was aged five years and four weeks. She reported him having ADHD and responding to Ritalin, and “Global delay”, including language delay and not being ready for school, “hence staying at Pre-school longer”. She reported that the accused had a paucity of imagination but “no other marked features of Asperger/Autism”. She identified as an issue: “Violence, lights fires”. Dr Wiles observed:

12. [126]

    Dr Wiles concluded:

13. [127]

    In a follow-up report a week later, dated 18 July 2003, Dr Wiles noted that “Billy came along because his Mum is so concerned about the lighting of fires”. Dr Wiles suggested that the accused should be assessed by a psychologist.

14. [128]

    On 27 October 2003, Sally Collier, a psychologist and District School Counsellor in Armidale, wrote to Dr Wiles, following on an earlier conversation with her. Ms Collier said:

15. [129]

    Dr Wiles saw the accused on 30 June 2006, when he was aged eight. She identified the following “Issues”:

16. [130]

    Dr Wiles’ report noted that Ms Krey claimed she had run out of the medication prescribed for the accused’s ADHD (being dexamphetamine) but, in my view, the terms of the report strongly imply that Dr Wiles suspected it was being taken by Ms Krey or another adult. Dr Wiles also noted that the accused was significantly underweight and that there appeared to be significant food shortages in the home.

17. [131]

    Excerpts from a document from the “Child Court Clinic”, bearing a facsimile date of 18 December 2006, refer to the accused as:

18. [132]

    Further on, the report stated:

19. [133]

    The report recommended that the accused be referred to a neuropsychiatrist for specialist clinical management of his pre-psychotic symptoms. It noted:

20. [134]

    An excerpt from an undated report of the Hunter New England Area Health Service, which appears to have been generated at about this time, refers to the accused and his family as follows:

21. [135]

    Dr Wiles saw the accused on 3 July 2007, when he was aged nine, with his “carer”. The identified issues were, other than those already identified on 30 June 2006: “Epilepsy … Maternal drug abuse and neglect, currently in the care of DOCS … Anxiety high levels relating to the above”. Dr Wiles noted that the accused was seeing a worker with the Physical Abuse and Neglect of Children section (“PANOC”) of the NSW Department of Family and Children’s Services (as it then was).

22. [136]

    Dr Wiles prepared a report dated 13 November 2007, when the accused was still aged nine, to be forwarded to the accused’s new paediatrician in Sydney. She noted that the accused had been with the same carer for the previous 18 months and was to be returned to his mother’s care “by the courts”. She identified the issues as follows:

23. [137]

    In his report dated 7 January 2008, Dr Louda noted that the accused had been under the care of a paediatrician in Armidale. He stated:

24. [138]

    The next report by Dr Wiles is dated 11 June 2008, on which date she had seen the accused with his previous carer. The accused was aged ten. It appears that he was returned to their care in Armidale, from Sydney, where he had resided with his mother. Since his return, there had been two major “behaviour explosions” at the end of the school day. Dr Wiles reported: “He is angry and is reported to be saying adults are mean, saying adults are hitting him”.

25. [139]

    The next report by Dr Wiles is dated 18 February 2009, when she saw the accused with a new foster mother. The identified issues were:

26. [140]

    A report dated 15 December 2010, by Donna McGushin, who was a child protection counsellor with PANOC, referred to a report dated 1 February 2010 by the Child Protection Counselling Service (“CPCS”):

27. [141]

    In a report dated 17 August 2010, Dr Nick Kowalenko, child psychiatrist, stated he had assessed the accused in the company of his foster parents. He stated that he had previously seen the accused in 2005 and again in 2007. The first time was with his grandmother. In relation to the treatment of the accused with Epilim, Dr Kowalenko said:

28. [142]

    The PANOC report by Ms McGushin, dated 15 December 2010, was addressed to a caseworker with the Out of Home Care section of the NSW Department of Family and Community Services. It noted:

29. [143]

    The next report by Dr Wiles is dated 29 June 2011, when the accused was aged 13. He had been living in a community house (“Life without Barriers”) with multiple carers for the previous three months. Dr Wiles said: “He tells me he has not been suspended again from high school”. Later in the report, Dr Wiles said:

30. [144]

    The next report by Dr Wiles is dated 12 October 2011, on which date she saw the accused with a new “house mother”. She said:

31. [145]

    Dr Wiles saw the accused on 14 November 2012, when he was aged 14, with one of his “Life Without Barriers” carers. In a report of that date, she noted the current issues included:

32. [146]

    In a report dated 29 October 2013, Dr Wiles noted that the “Life Without Barriers” community house had dissolved and the accused was now living with his former carer. She said: “Billy was leaving home each day for school but not turning up to classes. 20 day suspension resulted”.

33. [147]

    In her last report tendered in evidence, dated 14 May 2014, Dr Wiles noted that the accused had a:

34. [148]

    The NSW Police Custody Management Record for the occasion of the accused’s arrest has an entry that the “Detained person stated he cannot read or write”. As noted earlier, a support person was deemed appropriate and arranged, being Rebecca Palu. At 9:05pm, while waiting to be interviewed, the accused asked Sergeant Anderton: “The person I stabbed, can you tell me anything about him?” At the commencement of the formal interview, police indicated that from papers they located at Mr Bobak’s place, they were aware that the accused suffered from ADHD and PTSD.

35. [149]

    Mr Bobak said that the accused had lived with him for about six months before he moved in with Ms Krey. For a few months of that period, AJ lived there with the accused. The couple appeared to get along well. At that time, Mr Bobak’s household included his wife and mother, who have both since died. Following the accused being placed in the Minister’s care, he had in the order of 16 carers. On the night of the incident, Mr Bobak told police that: “He’s only 19 but he’s only like 13, 14 in the brain”, which he explained in evidence was a reference to the accused’s apparent level of maturity. Mr Bobak said that when the accused went to live with Ms Krey, she stopped giving him medications that he was prescribed. There was no evidence as to what the medications were for.

36. [150]

    In her statement, Ms Krey said:

37. [151]

    AJ gave evidence of an incident that had occurred shortly after they started living at Number 93. Ms Krey asked AJ to walk to the shops to buy something. AJ agreed. The accused wanted to accompany her, but she preferred to go for a walk by herself. The shop was about ten minutes away. The accused became very upset and took a butter knife and tried to cut his throat. A male friend of the accused, aged 14, was present, and he and AJ managed to stop the accused, but not before he had left “a couple breaks” of skin on his throat. Mr Bobak gave evidence that a few months before the stabbing, he observed a mark on the accused’s neck. The accused declined to explain it, but AJ told him what had happened.

38. [152]

    In a report dated 16 February 2009, Dr Louda said:

39. [153]

    Mr Bobak said that the accused’s mother, who was his daughter-in-law, was a chronic drug user over most of the 26 years he had known her. A death certificate in respect of Ms Krey was tendered in evidence. It indicated that the date of death was between 15 and 17 July 2018. The cause of death was expressed to be: “Consistent with fentanyl toxicity”. I note that fentanyl is an opioid that is often an abused prescription drug.

40. [154]

    Any prior acts of violence by the accused have not been criminal acts; the only entry on his criminal record is a shoplifting matter, involving chocolate bars.

The forensic expert evidence

1. [155]

   As noted at the outset, four forensic experts gave evidence in the trial, being two psychiatrists (Dr Nielssen and Dr Allnutt) and two clinical neuropsychologists (Dr Schafer and Dr Pulman). Each was provided with the documentary material, the police interviews of the accused and statements of witnesses of the stabbing.

2. [156]

   Each forensic expert was initially asked for an opinion as to whether the accused was fit to be tried. A fitness hearing was conducted on 20-22 May 2019 before Hamill J. Each of the four forensic experts gave evidence at that hearing, Drs Nielssen and Schafer being of the opinion that the accused was not, and Drs Allnutt and Pulman being of the view that he was fit to be tried. His Honour concluded that the accused was unfit to be tried: R v Billy Krey [2019] NSWSC 762.

3. [157]

   Pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused was referred to the Mental Health Review Tribunal, which on 27 September 2019 determined that the accused had become fit to be tried. Accordingly, the matter was referred back to the Supreme Court for a further fitness hearing, which occurred on 4 and 5 March 2020. Drs Nielssen and Schafer gave evidence that, in their opinion, the accused had become fit to be tried, and Hamill J so found: R v Billy Krey (No 2) [2020] NSWSC 199. A significant factor that likely accounted for the accused’s improvement was the treatment he had received whilst on remand from his treating psychiatrist, Dr White.

4. [158]

   There was a qualification to his Honour’s finding, at [32], as follows:

5. [159]

   Mindful of his Honour’s qualification, a support person from the Intellectual Disability Rights Service sat alongside the accused throughout the trial and regular adjournments were taken so that his counsel could advise him as to what was occurring in Court and the nature of the evidence.

6. [160]

   Dr Nielssen was retained by the defence to assess the accused and was the first of the forensic experts called by the parties to have seen the accused. He interviewed the accused by audio-visual link on 12 June 2018 and produced a report dated 17 June 2018. In relation to drug and alcohol use, the accused told Dr Nielssen that he had taken alprazolam, which I note is marketed as Xanax, on one occasion, which was on the day before the offence. He took “about four or five”, although he could not recall where the tablets came from or why he took them. The only effect that he recalled was that they made him go to sleep.

7. [161]

   Dr Nielssen’s diagnosis was of a mild intellectual disability and a substance use disorder, in remission. He explained:

8. [162]

   In relation to the question of what effect the accused’s report of taking alprazolam the day before may have had on his mental state at the time of the stabbing, Dr Nielsen said that the accused:

9. [163]

   As to the accused’s absence of memory of the stabbing, Dr Nielssen considered the accused’s medical history of a diagnosis of epilepsy and his treatment with Epilim (valproate):

10. [164]

    Dr Nielssen concluded that the accused’s mild intellectual disability qualified him for consideration of the application of the partial defence of substantial impairment, in that it constituted:

11. [165]

    Following on Dr Nielssen’s diagnosis, the defence retained Dr Schafer, a clinical neuropsychologist, to determine whether the accused has an intellectual disability and, if so, the level of that disability. Dr Schafer interviewed the accused for five hours over two days, in September 2018, producing a report dated 20 September 2018. In that report, Dr Schafer reviewed in some detail the medical documentation and interviewed the accused’s paternal grandmother, who informed Dr Schafer that the accused’s mother was using alcohol and other drugs while she was pregnant with him. She also read Dr Nielssen’s report dated 17 June 2018.

12. [166]

    Dr Schafer administered a range of clinical tests in order to assess the level of the accused’s intellectual functioning, including the WAIS-IV. She said:

13. [167]

    Dr Schafer also administered the Adaptive Skills (Adaptive Behaviour Assessment System), 3rd edition (“ABAS-3”), which she described as follows:

14. [168]

    Dr Schafer asked the accused’s paternal grandmother to complete the test on behalf of the accused. She concluded:

15. [169]

    In view of the existence of some evidence that the accused’s mother had used alcohol and drugs during her pregnancy with the accused and the medical documentation as to the accused’s life-long symptoms, Dr Schafer considered a diagnosis of Foetal Alcohol Spectrum Disorder (FASD). She said:

16. [170]

    The next report was prepared by Dr Susan Pulman, who saw the accused on 5 December 2018. She was briefed with the reports of Drs Nielssen and Schafer. Dr Pulman referred to the longer of the two police interviews, as follows:

17. [171]

    Dr Pulman was content to accept Dr Schafer’s test results in relation to the accused’s intellectual functioning. In relation to the results from Dr Schafer’s administration of the WAIS-IV, Dr Pulman said:

18. [172]

    Dr Pulman expressed reservations as to Dr Schafer’s diagnosis of FASD, preferring a diagnosis of complex PTSD instead:

19. [173]

    As to the accused’s black-out during the stabbing, Dr Pulman said:

20. [174]

    Dr Allnutt saw the accused on 17 September 2018 and again on 24 December 2018, and prepared a report dated 24 December 2018. He also canvassed the medical documentation and interviewed the accused’s paternal grandmother. Dr Allnut expressed the opinion:

21. [175]

    Dr Allnutt diagnosed the accused with a substance use disorder (with a history of use of Xanax, and more recent use of cannabis and buprenorphine). Although he did not list the reports of Drs Schafer and Pulman as material with which he was briefed, he was aware of Dr Schafer’s diagnosis of FASD and rejected it, on the basis that that diagnosis is not included in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) (“DSM-V”). Dr Allnut preferred a diagnosis of intermittent explosive disorder, and said:

22. [176]

    Dr Allnutt rejected Dr Nielssen’s diagnosis of a mild intellectual disability, on the basis of Dr Schafer’s neuropsychological assessment, as follows:

23. [177]

    Dr Allnutt concluded:

24. [178]

    Dr Nielssen re-interviewed the accused on 25 February 2020 and produced a second report, dated 26 February 2020. The primary focus of the report was the accused’s fitness to be tried. For the purposes of this assessment, Dr Nielssen was provided with the report of Dr Schafer dated 9 January 2020, but not Dr Pulman’s report.

25. [179]

    Dr Nielssen referred to the tests administered by Dr Schafer, but maintained his earlier diagnosis of mild intellectual disability, on the basis of the accused’s presentation. He said:

26. [180]

    A further report of Dr Schafer dated 7 July 2020 was tendered that exclusively addressed the issue of substantial impairment, drawing on her earlier consideration of the medical documentation and interviews of the accused. She maintained her earlier diagnosis of FASD and explained how it could be “an abnormality of mind arising from an underlying condition”, in the terms of s 23A of the Act:

27. [181]

    In a further report dated 3 September 2020, Dr Pulman responded to a request for a further opinion on Dr Schafer’s diagnosis of FASD and whether, in Dr Pulman’s opinion, the accused had available to him a partial defence pursuant to s 23A of the Act. Dr Pulman said:

28. [182]

    The parties tendered two further reports of Drs Allnutt and Schafer that only addressed the issue of the accused’s fitness to be tried, which I disregard.

The Crown’s closing address

1. [183]

   The Crown submitted that the elements of murder had been established. In relation to s 23A of the Act, the Crown submitted that it was open to the Court to find that the accused’s capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition but that, having heard all of the evidence, the Court would not find that the third limb of the partial defence, pursuant to s 23A(1)(b) of the Act, is made out; that is, that the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter. Accordingly, the Crown submitted that the appropriate verdict is murder.

2. [184]

   In relation to the third limb of the partial defence, the Crown focused on what it said was a significant degree of control on the part of the accused leading up to the stabbing, which suggested that the accused’s impairment was not so substantial as to warrant his liability for murder being reduced to manslaughter. The Crown noted that the accused did not follow his mother, girlfriend and brother when they left the house, but rather, walked around and then went back inside, which suggested a measure of self-control. The Crown submitted that the evidence of the eyewitnesses established that the accused then left Number 93 and walked to Danielle’s house, where he spoke to the deceased and then returned to Number 93. The Crown said that this also demonstrated a significant degree of self-control, particularly as he would have had the knife with him at that point.

3. [185]

   On the Crown’s scenario, it is at that point, after this earlier conversation with the deceased, that the deceased went to Number 93 and attempted to have a conversation with the accused. The Crown submitted that the fact that the accused departed Number 93 from the back rather than the front door, suggested an intention on his part to catch the deceased by surprise, thus suggesting a measure of planning and control, rather than an explosive response or one where anger is the operative feature.

The defence’s closing address

1. [186]

   The defence disputed the Crown scenario of an earlier encounter between the accused and the deceased. The defence submitted that there was no rational basis for the stabbing and no evidence of planning on the part of the accused. It was committed in full view of witnesses, with nothing to be gained by the accused in killing the deceased, thus suggesting that it was impulsive and not thought through. If there was an intent to kill, it was formed moments before the attack.

Whether the Crown has established the elements of murder

1. [187]

   The elements of the offence of murder in the context of this case are that the accused caused the death of the deceased by a deliberate act, and that the act was done with intent to kill or to inflict grievous bodily harm.

2. [188]

   I am satisfied beyond reasonable doubt that the actions of the accused, namely, stabbing the deceased, caused the death of the deceased.

3. [189]

   The Crown scenario that the accused met with the deceased at Danielle’s house, if established, suggests the accused had time to calm down after his argument with Ms Krey inside Number 93 and demonstrated a capacity for the accused to behave with a degree of normalcy before the attack. However, I do not find that that scenario is established by the evidence. The Crown accepted that it hinged upon the evidence of Ms Kelly. As I have already indicated, I reject that version on the basis that it is inconsistent with the evidence of other eyewitnesses, in particular, Mr Kelly, who was near that witness whenever she was outside throughout the incident.

4. [190]

   I also note that the Crown did not open on that version of events, so that the first the defence knew that it was part of the Crown case was in the Crown’s closing address.

5. [191]

   The accused’s account to police and the forensic experts that he did not realise what he had done until Mr Kelly intervened, receives some corroboration from the evidence of Mr Kelly and Mr Edwards. Mr Kelly said that the accused did not appear to hear him when he called out to him to “stop!” and when he approached the accused, he stood and walked towards Mr Kelly, repeatedly yelling, “What?” Mr Edwards’ unchallenged evidence, that he had known the accused for a long time and thought his facial expressions and reaction generally when he challenged the accused immediately after the stabbing were indicative of him not realising what he had done, has significant weight.

6. [192]

   However, the accused’s account suggests that he maintained awareness of his actions up to and including the oral exchange with the deceased which, on his version, clearly motivated him to respond by stabbing the accused, although he had no awareness or recollection of what thereafter occurred, including the acts of stabbing, until he was confronted by Mr Kelly.

7. [193]

   I accept the evidence of Drs Nielssen and Pulman that, although the accused has a history of epilepsy, at the time of the stabbing, the accused was not experiencing an epileptic seizure. I also accept the evidence of Dr Allnutt that, although the accused appeared at the time of the stabbing to be unaware of what he was doing, there is insufficient evidence to establish that he was unaware of the nature and quality of his acts or their wrongfulness.

8. [194]

   Accordingly, as to the state of the accused’s awareness at the time, I am satisfied that the acts of stabbing were deliberate and, having regard to the length of the blade of the knife and the depth, number and location of the knife wounds, I am satisfied beyond reasonable doubt that the accused stabbed the deceased with the intention of killing him.

9. [195]

   That being so, the onus then shifts to the accused to attempt to establish, on the balance of probabilities, that the partial defence of substantial impairment is made out.

Consideration of the partial defence of substantial impairment

1. [196]

   For the purposes of s 23A(3) of the Act, I am satisfied that the accused was not intoxicated by alcohol or drugs at the time of the stabbing.

2. [197]

   There are three elements for the defence to establish on the evidence, on the balance of probabilities. They are:

   1. (1)

      that at the time of the stabbing, the accused had an “abnormality of mind arising from an underlying condition”, as defined at s 23A(8) of the Act;

   2. (2)

      that at the time of the stabbing, the abnormality of mind substantially impaired the accused’s capacity to understand events, or to judge whether his actions were right or wrong or to control himself; and

   3. (3)

      that the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter.

3. [198]

   The first matter to be determined when the partial defence of substantial impairment is raised is whether, at the relevant time, the accused had an abnormality of mind arising from an underlying condition. The four forensic experts have produced four different primary diagnoses, although all concede a degree of overlap between some of those diagnoses.

4. [199]

   In Quinn v R [2018] NSWCCA 297, at [48], Hoeben CJ at CL, White JA and Fagan J agreeing, adopted what was said in R v Byrne [1960] 2 QB 396 by Lord Parker CJ as to the meaning of “abnormality of mind” and its interrelationship with an impairment of an accused’s capacity:

5. [200]

   Hoeben CJ at CL continued, at [49]:

6. [201]

   An “underlying condition”, as defined at s 23A(8) of the Act, means “a pre-existing mental or physiological condition, other than a condition of a transitory kind”.

7. [202]

   It is uncontroversial that an intellectual disability qualifies as an abnormality of mind arising from an underlying condition.

8. [203]

   I accept the evidence of Dr Allnutt that the accused’s “lifetime of behavioural problems”, as itemised in the preliminary view of his report at [177] above, collectively constituted an intermittent explosive disorder, which is an abnormality of mind arising from an underlying condition.

9. [204]

   As to whether FASD is an abnormality of mind arising from a mental condition as defined, I note Dr Pulman’s evidence that FASD may be conducive to treatment, to some extent:

10. [205]

    Although FASD may be capable of amelioration, it is not suggested that it is transitory in nature. I am satisfied that FASD is capable of being an abnormality of mind arising from an underlying condition. It is a widely-recognised permanent congenital mental condition.

11. [206]

    As to whether a complex PTSD may qualify as an abnormality of mind arising from an underlying condition, I note Dr Pulman’s evidence as to how it affects the physical development of the brain, as follows:

12. [207]

    I am also satisfied that a complex PTSD may be an abnormality of mind arising from an underlying condition, for the purposes of s 23A of the Act.

13. [208]

    The next step is to consider whether I am satisfied, on the balance of probabilities, that the accused had one or more of those qualifying conditions at the relevant time.

14. [209]

    I am satisfied that the accused did not have an intellectual disability. I note the striking similarity in the results of the Weschler Intelligence Scale for preschool and primary school children and the adaptive behaviour assessment (Vineland Adaptive Behaviour Scale Assessment) that were administered to the accused by Dr Collier and Dr Singh when he was aged five, and the results from the WAIS-IV and ABAS-3 adaptive behaviour assessment that were administered by Dr Schafer when he was aged 20. In both sets of tests, his intellectual functioning was in the low average range and his adaptive behaviour was in the mild intellectual disability range.

15. [210]

    In these circumstances, it is unsurprising to me that Dr Nielssen concluded that the accused has a mild intellectual disability. However, for the reasons expressed by Drs Schafer and Pulman as to how the accused’s traumatic environment in his developmental years compromised his acquisition of adaptive skills, I consider that, consistently with the findings of the tests assessing the accused’s intellectual functioning at ages 5 and 20, the accused does not have an intellectual disability. Rather, his intellectual functioning is in the low average range with significant impairments in his adaptive functioning, including language.

16. [211]

    I am satisfied that the accused had, at the relevant time, an intermittent explosive disorder, as diagnosed by Dr Allnutt.

17. [212]

    As to whether the accused has FASD, having regard to the evidence of Mr Bobak, the accused’s paternal grandmother and the documentary material, I am satisfied on the basis of circumstantial evidence that the accused’s mother was likely taking significant quantities of alcohol and prohibited drugs during her pregnancy with the accused. The evidence that Ms Krey had a significant alcohol and drug dependency before and after the pregnancy is corroborative of the documentary references to her taking alcohol and drugs during the pregnancy itself.

18. [213]

    I note the conflict in the opinions of Drs Schafer and Pulman as to whether the accused satisfies the test for FASD that is set out in the Australian Guide to the diagnosis of FASD (updated February 2020), in particular, whether alternative diagnoses that might explain the accused’s neurodevelopmental impairment have been excluded. However, for the purposes of this exercise, it is pertinent to note that both Drs Schafer and Pulman agree that the effects of maternal alcohol and complex PTSD are compounded. When taken to the passage in Dr Pulman’s report that is reproduced as the first paragraph at [172] above, Dr Schafer said:

19. [214]

    Later, Dr Schafer said:

20. [215]

    I am satisfied that the accused has FASD and a complex PTSD.

21. [216]

    Accordingly, I am satisfied on the balance of probabilities that the accused had an abnormality of mind arising from an underlying condition, being FASD, a complex PTSD and an intermittent explosive disorder.

22. [217]

    In evidence, Dr Pulman explained how the accused’s complex PTSD could have prompted his gross overreaction to the deceased when he spoke to the accused:

23. [218]

    I am satisfied that the accused’s abnormality of mind substantially impaired his capacity to control himself at the time of the stabbing.

24. [219]

    In relation to the third limb of the partial defence, namely, whether the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter, I note there are factors that tend against making such a finding. I have found that the accused’s intent was to kill the deceased, rather than to inflict grievous bodily harm. He walked to where the deceased was and could have chosen not to do so. The words spoken that triggered the attack were either innocuous or, if they were as he partly recollected them when questioned by police, did not convey any threat of violence. As well, the attack was sustained, constituting 12 separate blows with the knife.

25. [220]

    The factors that tend in favour of a finding that the impairment was so substantial as to warrant the accused’s liability for murder being reduced to manslaughter are the degree to which the abnormality of mind contributed to the motive in the accused’s mind to kill the deceased, and how that impacted on his ability to resist that urge.

26. [221]

    To those two issues, the “blacking out” of the accused, as claimed by him in his interview by police, is relevant, in that it suggests that he was to a significant degree deprived of the power to resist the irrational urge to kill the deceased. The observations of Mr Kelly and Mr Edwards to the effect that the accused appeared unaware of what he was doing are at least consistent with, if not corroborative, of the accused’s claimed state of mind at that point.

27. [222]

    The accused’s behaviour immediately following the stabbing, that is, running to the neighbouring suburb to his grandfather’s place, his demeanour when he arrived, and his words to his grandfather that “I think I’ve hurt someone”, are also indicative of him having only a partial awareness of what he had done, as was the question he asked of Sergeant Anderton: “The person I stabbed, can you tell me anything about him?”

28. [223]

    There were a combination of factors that culminated in the accused taking the deceased’s life. I note the following features of the evidence that marked a deterioration in the accused’s capacity to control himself in the weeks leading up to the stabbing.

29. [224]

    I accept the observations in the documentary material of treating psychologists and the psychiatrist, to the effect that over the accused’s childhood and adolescence, his medication had a calming influence on him, and when he did not take it, he became aggressive. I note Mr Bobak’s evidence that when the accused ceased residing with him and went to live with his mother at Number 93, so that he no longer had the benefit of Mr Bobak’s supervision, the accused stopped taking his medication. It is also apparent from the documentary material that, from the age of five, whenever the accused was in the care of his mother, his behaviour typically deteriorated.

30. [225]

    Stabbing as a violent act had a direct connection to the violence the accused had endured as a toddler, as is apparent from the reference to him engaging in stabbing motions when aged four, and of knives having to be hidden from him at that age. The incident some weeks earlier, when the accused took a knife to his neck because he was unable to accompany AJ to the shops, demonstrated a marked deterioration in his capacity to control himself and was an instance of resorting to a nearby knife (on that occasion, a butter knife) to act out his frustration.

31. [226]

    I accept what the accused said in his police interview, and what Ms Krey stated in her statement, to the effect that she and the accused frequently argued. I also accept her observation that the argument between her and the accused that preceded the stabbing was unprecedented in its aggressiveness and violence. As earlier noted, I accept the evidence that the accused had threatened to stab his mother moments before the attack on the deceased. In a terrible twist of fate, the deceased, who was only trying to assist members of his community, happened to be the person who became the recipient of the accused’s uncontrolled behaviour, due to his abnormality of mind.

32. [227]

    Considering the factors that weigh for and against the exercise of s 23A(1)(b) of the Act, I am satisfied on the balance of probabilities that, in all the circumstances, the impairment of the accused was so substantial that his liability for murder should be reduced to manslaughter.

33. [228]

    Accordingly, I find the accused not guilty of murder but guilty of manslaughter.