R v Drummond-Murray

The accused, Mr Matthew Drummond-Murray, has been charged on indictment with four counts, which can be summarised as follows:

The disparity in dates between the first and second counts is explained by the fact that life threatening injuries were allegedly inflicted on 6 November 2015 which rendered the deceased a tetraplegic. He did not, however, die until 16 August 2017.

The accused has been in custody, bail refused, since 7 November 2015.

For present purposes, it is sufficient to note that, before the deceased died, there had already been a fitness hearing in the District Court in respect of the charges the subject of the second, third and fourth counts and, on 9 February 2017, Frearson SC DCJ had found the accused unfit to be tried.

On 6 December 2018, Button J found that the accused was unfit to be tried on the murder charge and the other charges in the indictment already referred to. [1] The accused was referred to the Mental Health Review Tribunal (the MHRT) and remanded in custody. [2]

On 26 March 2019, the MHRT determined that the accused would not become fit to be tried within 12 months of this Court’s finding of unfitness. The MHRT advised the Court and the Director of Public Prosecutions (the DPP) of its determination. [3]

By letter dated 28 March 2019, the DPP informed the court that he intended to proceed with the charges in accordance with the indictment containing the four counts already referred to. Consequently, the matter was listed for a special hearing. [4]

The special hearing took place on 13 May 2019.

The purpose of a special hearing is to ensure that, despite the unfitness of the person to be tried in accordance with the normal procedures, the person is acquitted, unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged. [5]

A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings, [6] and the accused must generally be legally represented. [7] In this case, the accused was represented by Mr Brasch, of counsel.

Although at a special hearing an accused cannot, on his or her own account, enter a plea, the accused is taken to have pleaded not guilty in respect of the offence charged. [8] Consequently, a plea of not guilty was entered by the Court on the accused’s behalf in respect of each count, when he was arraigned on 13 May 2019, as follows:

The matter proceeded to special hearing before me, as a judge sitting alone, as there was no election made by the accused, his representative, or the prosecutor to have the special hearing determined by a jury. [9]

The verdicts available to a judge determining a special hearing without a jury are the verdicts which would be available to a jury under s 22 of the MHFP Act. [10] Those verdicts are set out in s 22(1) and they are:

The verdict entered by the judge sitting alone has, for all purposes, the same effect as a verdict of a jury. [11]

My determination in this special hearing must include the principles of law I have applied and the findings of fact on which I have relied. [12]

The Crown case was that, in November 2015, the accused was then aged 37 years and suffered from a longstanding schizophrenic condition. He had become infatuated with a woman who worked at Fraser Motorcycles, a shop in William Street, Darlinghurst. He called her Angie, although that was not her real name. On 5 November 2015, the accused was filmed on CCTV leaving flowers for her at the shop. That afternoon, the accused had been admitted to a facility operated by the Salvation Army as a shelter for homeless men. It consisted of two parts, Foster House and Knudsen House, but nothing turns upon this. For simplicity, I shall refer to the facility as Foster House.

The accused recounted that, on 6 November 2015, there was an incident at about 11am when a woman “brushed him off”, which upset him.

In the afternoon of that same day, Mr Mottram, then aged 27, had a sharp disagreement with his grandmother with whom he lived in Woolloomooloo. He was somewhat intoxicated. Police were called and he was taken to a police station.

On the evening of 6 November 2015, the accused stole a knife from the Woolworths store near Central Station and returned to Foster House.

Eventually, Mr Mottram was taken to Foster House at about 10:30pm, where he was admitted. There, Mr Mottram encountered the accused on a ramp outside the entrance to Foster House where Mr Mottram had gone to smoke.

It is alleged that, whilst the two men were on the access ramp to Foster House, the accused stabbed Mr Mottram. The CCTV footage of the ramp area recorded what occurred in the attack as well as the arrest of the accused and the attendance of ambulance officers shortly thereafter.

Early the following morning, the accused participated in an electronically recorded interview with police in which he made certain admissions and gave some explanation as to why he had stabbed Mr Mottram. Also on 7 November 2015, while a buccal swab was being taken, the accused is alleged to have assaulted a police officer by punching her. This was also recorded on CCTV.

The forensic psychiatrists qualified by the Crown and the defence were both of the opinion that the accused had available to him the defence that, as at 6 November 2015, he was not guilty of any offence on the ground of mental illness.

The Crown case was that Mr Mottram was rendered a tetraplegic as a result of the injuries inflicted by the accused on 6 November 2015, and died as a result of those injuries and that condition on 16 August 2017.

Both the Crown and the accused submitted that, in the circumstances of the present case, the appropriate verdict was one under s 22(1)(b) of the MHFP Act. In other words, they contended that the accused should be found not guilty on the ground of mental illness.

The Crown approached the evidence in this matter by tendering two folders of documents, [13] which contained:

The only witness who was called to give oral evidence was Detective Senior Constable Lindner. He had attended the crime scene at Foster House on the evening of 6 November 2015 and reviewed the CCTV footage from that location. He also reviewed the CCTV footage from the Woolworths store, at which the accused acquired the knife used in the attack, and the CCTV footage of the accused leaving flowers at the motorcycle shop. In addition, Det Snr Cst Lindner conducted the ERISP on 7 November 2015 and reviewed footage from the CCTV in the DNA room where the buccal swab was taken from the accused.

Videos of the following were played in court and the discs containing the videos became exhibits in the proceedings:

There was no cross examination of any of the witnesses. All of the statements and other material were tendered without objection and, in effect, the Crown and the defence agreed to waive the rules of evidence.

Although the parties did not expressly seek an order under s 190 of the Evidence Act 1995 (NSW), it appeared to me to be appropriate to proceed in the manner proposed if I were satisfied that an order under s 190 would have been made, if sought. Section 190 relevantly provides:

During the hearing, Mr Brasch of counsel, who appeared for the accused, took time to provide advice to the accused, as envisaged by s 190(2)(a), concerning the way in which the evidence was proposed to be adduced and to consent to what was proposed.

Having regard to the nature of the special hearing, the fact that both parties submitted that the appropriate verdict was not guilty on the ground of mental illness, what was and was not in issue in these proceedings especially given the extensive CCTV footage of relevant events, the significant probative value of the evidence in the folders tendered by the Crown, the fact that other orders or directions in relation to the evidence were not appropriate, and the advice received by the accused, I determined that it was appropriate to proceed as proposed, since I would have made an order under s 190(1), if that had been sought and was otherwise necessary. In my view, the procedure adopted by the parties was appropriate and efficient and was not inconsistent with s 21(1) of the MHFP Act. [20]

In reaching my verdicts in these proceedings, I have applied the following legal principles.

The accused is not required to prove his innocence. He is presumed to be innocent unless the prosecution proves, on the limited evidence available, that the offences charged were committed.

The legal consequence of the presumption of innocence is that the prosecution bears the onus of proof. Putting to one side for the moment the defence of mental illness, in relation to the offences charged, the onus remains on the Crown from beginning to end.

The standard of proof is beyond reasonable doubt. Those words and that phrase have their ordinary English meaning. The Crown is not required to prove the truth and reliability of every disputed fact, or to establish everything that its important witnesses said in evidence. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of each of the offences charged.

When, as in this case, an accused relies on the defence of mental illness, [21] there is an onus on the accused to prove that he is not criminally responsible for his acts because of his mental illness. To this extent, there is an onus on the accused in this hearing, but the standard of proof is the lesser civil standard, on the balance of probabilities. [22] I shall discuss the defence of mental illness in more detail later.

That the accused did not give evidence before this Court is a matter of no significance. He was not obliged to do so. No conclusion adverse to him can be drawn from this feature of the matter.

In the present case, the most significant expert evidence was that of the two forensic psychiatrists, Prof Greenberg and Dr Furst, in relation to the defence of mental illness.

The expert psychiatric evidence was not challenged and, in very large measure, the two psychiatrists agreed. Accordingly, if it is not inherently unbelievable, I would need to have a good reason to reject it. I would do so, for example, if it were based on facts that do not accord with what I have found to have been proved on the evidence, if the experts were not briefed with all relevant material, if their conclusions were not adequately explained in the reasoning in their reports or if there were some reason to doubt that the witnesses had relevant expertise. In the present case, however, the experts’ opinions were supported by the evidence, which I accept. There was no suggestion that they did not have access to the necessary information when forming their opinions. Their reasoning, by which they reached their conclusions, was adequately exposed in their reports and there was no issue that they lacked relevant expertise.

It is well established that if medical evidence relating to the issue of 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. [23]

The essential elements of the murder charge, which the Crown must prove beyond reasonable doubt, are:

The essential elements of the alternative charge of causing grievous bodily harm with intent to murder, which the Crown must prove beyond reasonable doubt, are:

The essential elements of the charge of assaulting a police constable, PCSC Hansen, in the execution of her duty, which the Crown must prove beyond reasonable doubt, are:

The essential elements of the charge of stealing a knife the property of Woolworths Ltd, which the Crown must prove beyond reasonable doubt, are:

As has already been noted, the Crown alleges that the deceased was stabbed and suffered serious injuries, on 6 November 2015, which left him a tetraplegic. His death did not occur, however, until 16 August 2017, almost two years later. In these circumstances in relation to the murder charge, a significant issue arises as to whether the attack on 6 November 2015 caused the deceased’s death.

The question of causation is a question of fact. It is to be approached as an exercise of common sense and not by resort to philosophical or scientific theories. There may be more than one cause of death. It is not necessary that the conduct of the accused be the sole or even the principal cause of death. Nonetheless, in order for the accused to be found to have committed the offence of murder, the Crown must establish beyond reasonable doubt that the accused’s conduct on 6 November 2015 was a substantial or significant cause of Mr Mottram’s death in August 2017. The causal connexion must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. [24]

Where the defence of mental illness is raised, it is necessary first to consider whether the Crown has proved to the requisite standard whether the accused deliberately, or voluntarily, did the act or acts charged. If it is concluded that he did, it is next necessary to examine the evidence to determine whether the accused can be held criminally responsible for the act or acts. [25]

The principle to be applied is that persons are presumed to be sane, and to possess a sufficient degree of reason to be responsible for their crimes, until the contrary is proved. To establish a defence on the ground of mental illness in this case, it must be clearly proved that, at the time of the committing of the acts, the accused was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the acts he was doing; or, if the accused did know their nature and quality, that the accused did not know that the acts were wrong. [26]

In this context, “disease of the mind” means “mental illness”, and a temporary disorder or disturbance of an otherwise healthy mind, that is not prone to recur and is caused by external factors, is not to be regarded as disease of the mind. [27]

It may be concluded that an accused did not know that what was done was wrong if, as a result of mental illness, the accused could not reason about the matter with a moderate degree of sense and composure. “Wrong” in this context is to be judged according to the everyday standards of reasonable people. [28]

In summary, for the defence of mental illness to be available to the accused in this case, he must establish on the balance of probabilities that, as a result of a defect of reason arising from mental illness:

Section 38 of the MHFP Act provides for a special verdict, which is also the verdict in s 22(1)(b) of that Act, where an accused is not criminally responsible because of mental illness. It is in these terms:

There are consequences that flow from the return of a special verdict, as provided by s 39 of the MHFP Act, and by Div 2 of Pt 5 of that Act. I have taken these matters into account in reaching my decision.

None of the evidence was challenged during the hearing nor was there any issue as to what had occurred. Apart from minor discrepancies concerning dates in the evidence of Mr Muslu, the manager of Fraser Motorcycles, the evidence was credible and consistent. I have no reason not to accept generally, and I do accept, the evidence contained in the witness statements from the lay, police and expert witnesses, as well as the medical evidence concerning Mr Mottram’s injuries, treatment and death. The CCTV footage from the various locations is consistent with and confirms the witnesses’ evidence.

On the basis of all of the evidence, my relevant findings are as follows.

The accused was incarcerated between 15 June and 14 October 2015. He was admitted to an acute care ward at Long Bay Hospital in August 2015 because he was psychotic and self-harming. He was scheduled by the psychiatrists at that hospital on 13 October 2015 and transferred to Prince of Wales Hospital. There he was noted to be overtly psychotic with bizarre delusions, thought disorder and hallucinations. It was noted that he self-injured by piercing his eyebrow, was punching walls, had assaulted Corrective Services officers and had poor insight and judgement into his mental illness and behaviour. It was reported that he described erotomanic delusions that he was fixated on a female he referred to as “Ashley” from the pub.

On 14 October 2015, the accused was admitted to Prince of Wales Hospital. At this time, his primary diagnosis was schizophrenic disorder with a secondary diagnosis of mental and behavioural disorder due to stimulants. He was noted to be homeless. After being granted escorted leave on about 26 October 2015 he is described as having gone AWOL, or absent without leave, and was discharged.

For about a year prior to November 2015, the accused had been frequenting a motorcycle shop in William Street, Darlinghurst known as Fraser Motorcycles. This shop was sometimes described by the accused as the Ducati shop. Initially he had purchased a few items from the shop and, at times, he would sit and drink wine in front of the shop. As time went on his behaviour became stranger and he started to frequent the shop daily and appeared to be infatuated with a female who worked at the shop. He called her “Angie”, however that was not her name.

On 5 November 2015 on two occasions the accused left bunches of flowers just inside the front door of the motorcycle shop and left. This was captured on CCTV footage.

Later in the afternoon on 5 November 2015, the accused was provided accommodation at Foster House together with other general assistance and support.

On 6 November 2015 in the afternoon and early evening, Mr Mottram, the deceased, had a violent and abusive argument with his grandmother with whom he lived in Woolloomooloo. He had been drinking alcohol and smoking cannabis with some of his friends. At about 8pm the police attended the house and took Mr Mottram to Surry Hills police station.

On 6 November 2015, the accused presented at Foster House again at 4:50pm without any gear. He appeared highly intoxicated and tired but stated that he had been drinking wine only. He was offered a meal, clothes and toiletries for a shower at this time but he refused all of these and went straight to bed. He woke up at about 8:35pm and was given food.

Later that night at 10:09pm, the accused is recorded entering the Woolworths store near Central Station on CCTV. The CCTV also showed him taking an item from the store and leaving without appearing to pay for it. During the ERISP, the accused explained that the knife, used in the attack on Mr Mottram, came from Woolworths near Central and that he “petty theft it about 7 o’clock, 8 o’clock or something.” It can be noted here that another resident of Foster House found packaging for a knife of the sort used in the attack when he was walking back to Foster house from the park near Central Station, on 8 November 2015. He took photographs of the packaging where he found it, and then picked up the package and took it with him, and eventually gave it to police. The packaging for the knife matched the appearance of the item taken by the accused from the display in Woolworths as depicted in the CCTV footage. I am satisfied that the accused took the knife used in the attack from Woolworths at about 10:10pm on 6 November 2015 without paying for it.

Later on 6 November 2015 at about 10:25pm, the accused returned to Foster House. Another resident of Foster House, Mr Caldwell, was alone near the ramp which leads into Foster House from a gate opening onto Hands Lane. He saw the accused walking along the lane and saw him lean through the bars and place an item close to the rubbish bin on the ramp. He could not see what it was but he heard it land. The accused was let in through the remotely operated gate by Mr Pham, who was a support worker at Foster House. Mr Caldwell saw the accused go over to where the item had been put, pick it up and place it in his pocket. On the CCTV footage of the ramp, the accused can then be seen extending his arm and in his left hand is what appears to be a knife. I accept that the accused brought the knife he had taken from Woolworths into the ramp leading up to the entrance to Foster House in the manner described by Mr Caldwell.

On the same evening, the police took Mr Mottram to Foster House where a bed had been arranged for him for the night. He arrived at the reception desk at 10:37pm, as recorded on the CCTV for Foster House. Mr Mottram was booked in by Mr Pham. When Mr Pham had finished taking his details, Mr Mottram asked whether he could have a smoke before going to bed. Mr Pham indicated that he could go out onto the ramp, outside the entrance doors to the reception area, and have a smoke there and then come back. Mr Mottram went out onto the ramp.

The accused and Mr Caldwell were both on the landing of the ramp where it changed direction when Mr Mottram walked out. There were two plastic milk crates there on the landing together with a bin. Mr Mottram joined the other two men and said to Mr Caldwell “Do you want to smoke?” And he replied “Give him one”, pointing towards the accused. Mr Caldwell then walked back up the ramp into Foster House at 10:46pm.

Mr Mottram was smoking a cigarette sitting on the ground, with his head visible on the CCTV footage. The accused, who was sitting on or near the milk crates, could not be seen in that footage. The accused asked Mr Mottram for a cigarette but was not given one.

At 10:49pm, the accused pushed Mr Mottram over onto his left side then straddled him while holding the knife. The accused reached down towards the area of Mr Mottram’s neck, who did not appear to resist or attempt to defend himself. The accused continued to cut or saw at Mr Mottram’s neck. Mr Mottram’s body ended up lying down the ramp with his head towards the bottom. After the accused stood up and as he walked down the ramp, he threw the knife onto the floor. Mr Mottram did not appear to be able to move, and a significant amount of blood ran from his head and neck in two streams down the ramp towards the Hands Lane entrance gate. The accused then smoked a cigarette towards the bottom of the ramp. After a short while he walked back and retrieved the knife and attempted to throw it away but it hit the wall and fell back onto the ramp not far from the deceased.

At about this time, Mr Pham was completing his walk-through check of the dormitory and other rooms and eventually came to the bottom of the ramp where he noticed fluid on the ground. He looked up and saw Mr Mottram lying at the landing where the ramp changed direction. He could see that the whole head was covered in blood, and that blood was running down the ramp, and he saw the knife close to Mr Mottram. He looked further up the ramp and saw the accused, who was standing with his back leaning against the back wall and staring at the body. Mr Pham said “What has happened?” The accused said twice “I killed him”. Mr Pham then went back to summon staff assistance.

One of the staff who came to assist was Mr Damos. He ensured that the accused was disarmed and asked him where the knife was. The accused said “It’s already dropped” and pointed to the knife which was on the ramp about half a metre from Mr Mottram. Mr Damos then got the accused inside. Staff stayed with Mr Mottram until the ambulance arrived. Shortly after the police arrived, they retrieved the knife. It was an Arcosteel brand knife about 24 cm long with a blade length of about 13 cm. The accused was handcuffed and placed in the rear of a police vehicle.

A conversation between the accused and Det Snr Cst Lindner then took place in which the accused admitted that he caused the injuries to Mr Mottram with the knife because “he was getting under my skin” and “I sorted him out”.

The accused was taken to Surry Hills charge room, where among other things, blood and urine specimens were taken. Neither drugs nor alcohol were detected in those samples.

Early on the morning of 7 November 2015, the accused gave an electronically recorded interview. During the ERISP, the accused confirmed what he had said to Det Snr Cst Lindner the night before about causing the injuries with the knife and why he had done it. The ERISP also contained answers from the accused which gave significant insight into his mental state and ability to reason concerning whether his actions were morally wrong. These answers formed an important part of the material upon which the psychiatrists based their opinions. In these circumstances, it is worthwhile quoting from the ERISP at some length. Because of the length, however, the quotations from the transcript of the ERISP are included in an appendix to these reasons.

Having viewed the video recording of the ERISP, I am satisfied that the transcript quoted in the appendix is an accurate record of what was said.

At about 8:40am on 7 November 2015, PCSC Hansen and another police officer escorted the accused to the DNA room to obtain a buccal swab. There was a CCTV camera monitoring the DNA room and what occurred was recorded in the CCTV footage, which I have viewed. At about 8:52am, the accused was sitting in a chair across from PCSC Hansen who was reading out the consent form when he leapt out of the chair and attacked her. There were two punches and at least one punch connected with her chest. As the two officers were wrestling the accused to the ground, he grabbed PCSC Hansen’s hair. Another officer came into the room to assist in restraining the accused and he was handcuffed. When asked what happened the accused said “I don’t know. I just snapped”.

Mr Mottram was taken to St Vincent’s Hospital where he was attended by Dr Tran at about 11pm. On admission, he was suffering from a penetrating injury to the right neck and was in cardiac arrest secondary to bleeding from the neck wound. On examination, it was noted that there was an open right neck laceration of approximately 12 cm in length but the right carotid and internal jugular vein were on view and were intact. CPR was administered to maintain cardiac output and, upon return to spontaneous circulation, Mr Mottram was intubated to maintain the airway, and the bleeding from the neck wound was controlled.

On 7 November 2015, Mr Mottram was transferred to St George Hospital under the care of Dr Christine Bowles, a trauma surgeon. An MRI of the spine revealed a complete cord transection at the level C3/C4 vertebra. He was transferred to Prince of Wales Hospital ICU on 7 January 2016. On detailed spinal injury assessment, he was found to have a C3 AIS A (complete) tetraplegia. He initially required ventilation but he was weaned off this.

In his report of 25 April 2016, Dr Shetty, a spinal medicine and pain management specialist, who was also Mr Mottram’s treating specialist at Prince of Wales Hospital, noted that Mr Mottram’s spinal rehabilitation was complicated by numerous issues including:

Dr Shetty was of the opinion that Mr Mottram would remain a tetraplegic for the rest of his life and the usual life expectancy for his level of injury was about 70% of normal.

In a later statement of 14 March 2018, Dr Shetty noted that Mr Mottram had had numerous admissions to Prince of Wales Hospital all through late 2016 and early 2017 with complications secondary to his spinal cord injury, primarily related to respiratory and urinary tract infections and pain issues. Mr Mottram finally succumbed to those complications secondary to severe cardio respiratory failure due to sepsis on 16 August 2017.

Mr Mottram’s death certificate stated that the cause of death and duration of illness were:

Based on all of this material and the evidence as a whole, I accept Dr Shetty’s opinion that Mr Mottram’s “cause of death [was] a direct relationship to the complications secondary to the spinal cord injury”.

Having regard to the evidence as a whole, including the CCTV footage, the absence of any contest concerning these matters and, in particular, to my findings referred to above, I am satisfied beyond reasonable doubt that the accused voluntarily or deliberately cut Mr Mottram’s throat and severed his spinal cord in the attack on the night of 6 November 2015, leaving him a tetraplegic. I am also satisfied beyond reasonable doubt that the injuries inflicted on that occasion and the resulting tetraplegia were a substantial and significant cause of Mr Mottram’s death in August 2017. Thus, the Crown has discharged its onus of proof in respect of the physical elements of the offence of murder, in count 1.

In the light of the findings concerning the murder charge and my other findings, I am also satisfied to the requisite standard that the Crown has discharged its onus of proof in respect of the physical elements of the grievous bodily harm offence, which is the subject of count 2.

Similarly, having regard to the evidence as a whole, including the CCTV footage, the absence of any contest and, in particular, my findings referred to above, I am also satisfied beyond reasonable doubt that:

It is necessary now to consider the question of whether the accused was criminally responsible for doing the acts which I have found occurred in relation to each of the offences charged, before dealing with the question of any specific intention required for those offences, should that be necessary. [29]

The defence of mental illness relied on by the accused raises the question whether the accused can be held criminally responsible for his acts, having regard to the evidence before the Court of the accused’s mental condition at the time of the relevant acts in November 2015.

For the reasons I have already given, I accept the evidence of both the forensic psychiatrists, which was largely consistent.

Prof Greenberg provided three reports dated 4 July 2016, 20 February 2018 and 23 September 2018. He first assessed the accused on 2 July 2016 at MRRC Silverwater in relation to unfitness, which was the primary focus of the first report. In this report, Prof Greenberg noted that the accused’s past psychiatric history included his first admission at the age of 19 years to Woden Valley Hospital in Canberra, that he was diagnosed with schizophrenia and spent two years in total as an inpatient in that hospital. Numerous subsequent admissions to psychiatric units or hospitals were also reported. His drug and alcohol history included binge drinking large amounts of alcohol from the age of 18 years, smoking cannabis from the age of 13 and, by the age of 17, smoking cannabis daily. He reported decreasing cannabis use from 2012, when he started using crystal methamphetamine, or Ice. There was also reported use of other illegal substances including cocaine, ecstasy, LSD, OxyContin and heroin. In addition, Prof Greenberg also reviewed mental health records from a number of sources and concluded:

For the purposes of his second report of 20 February 2018, Prof Greenberg did not have an opportunity of conducting a further psychiatric assessment of the accused and the report was based on his previous assessment and a review of documentation. At the previous assessment, Prof Greenberg had asked the accused about what happened on 6 November 2015. The accused told Prof Greenberg that:

Prof Greenberg also recorded that the accused had reported hearing voices, auditory hallucinations, one to two weeks prior to the alleged offences and the voices were saying “Carry out crime”.

As to what happened in the DNA room, the accused told Prof Greenberg:

Prof Greenberg’s relevant conclusions included:

On this basis, he was of the view that the accused suffered from a disease of the mind. In addition Prof Greenberg was of the opinion that, at the time of the alleged offences, the accused was labouring under a defect of reason caused by disease of the mind. The basis for this opinion included:

Prof Greenberg also drew support for his opinion that the accused was labouring under a defect of reason from the answers given by the accused during the ERISP. All of this material also provided, according to Prof Greenburg’s report, support for the opinion that the accused likely did know the nature and quality of his acts at the time of the alleged offences and that those acts were legally wrong.

However in relation to the question of whether the accused knew that his acts were morally wrong at the time of the alleged offences, Prof Greenberg was of the opinion that the accused did not. This was on the basis that:

On 19 September 2018, Prof Greenberg conducted a further psychiatric assessment of the accused and provided an updated report on 23 September 2018. Prof Greenberg confirmed his previous opinions. In particular, concerning the issue of whether the accused knew that his acts were morally wrong, he maintained the view that the accused did not know that they were morally wrong at the time of the offences and wrote:

Dr Richard Furst, consultant forensic psychiatrist, was retained on behalf of the accused to perform an assessment and provide reports on the accused’s mental state. Dr Furst assessed the accused on 6 April 2016 and provided a report dated 27 May 2016. This report dealt principally with fitness issues. In that report, Dr Furst gave his diagnosis as follows:

Dr Furst provided a second report dated 4 July 2016, which addressed the particular issue of whether the accused had a mental illness defence available to him. Dr Furst repeated his diagnosis given in his first report and gave his opinion concerning the availability of a mental illness defence as follows:

In his report of 31 January 2017, Dr Furst stated that he remained of the opinions given in his early reports. Dr Furst’s last report of 1 September 2018 principally concerned the accused’s fitness in the light of the murder charge he faced as a result of the death of Mr Mottram in 2017. Nothing in that report was inconsistent with Dr Furst’s opinions in his earlier reports but it was noted that his “schizophrenic/schizoaffective illness … is treatment resistant”.

It can be noted that there is a slight difference in the diagnoses of the two psychiatrists. Prof Greenberg adopted the diagnosis of Chronic Schizophrenic Disorder but noted that “[o]n a few occasions [the accused is] noted to have an affective (mood) component to his psychiatric illness”, associated with Substance Use Disorder. Dr Furst opined that the diagnoses were Schizoaffective Disorder and Substance Abuse Disorder, although in his last report he did use the expression “schizophrenic/schizoaffective illness”.

In the light of the accused’s symptoms and psychiatric assessments, and the fact that neither psychiatrist drew a strict line between schizophrenic disorder, with an affective component, and schizoaffective disorder, or provided any reason to doubt that their conclusions would be the same whichever way the diagnoses were expressed, I am of the view that the slightly different terms used by each psychiatrist in their diagnoses are of no significance in this matter.

From the accused’s answers in the ERISP and the reasoning of Prof Greenberg, in particular, it is clear that the accused’s mental illness affected his reasoning and his capacity to reason in respect of his actions related to each of the offences of murder, causing grievous bodily harm, assaulting a police officer in execution of her duty and stealing the knife. Dr Furst’s evidence is consistent with, and supports, this conclusion.

Having regard to the evidence as a whole and, in particular, the unchallenged and consistent opinions of the psychiatrists, I am satisfied to the requisite standard that the accused did not know that what he did in cutting the deceased’s throat and severing his spinal cord, assaulting PCSC Hansen or in taking the knife from Woolworths without paying for it was wrong, as judged by everyday standards of reasonable people. This was so because his delusional and illogical paranoid thinking, including erotomanic delusions and auditory hallucinations, prevented him from reasoning about those matters with even a moderate degree of sense and composure. This defect of reasoning was the result of his “schizophrenic/schizoaffective illness”, which, I am satisfied, is a mental illness or disease of the mind.

Accordingly, the defence of mental illness has been made out in respect of each count. In these circumstances, it is not necessary to consider further whether any requisite intent has been established for any of the offences charged.

The appropriate verdict is, therefore, in each case the verdict available under s 22(1)(b) of the MHFP Act.

Before announcing the orders of the Court it remains to acknowledge the death of Stephen Mottram as a human tragedy, rather than it being treated only as the object of a criminal proceeding by way of a special hearing. Mr Mottram’s death in such horrifying circumstances would have devastated those who loved him. They have the Court’s sympathy for their loss.

The orders of the Court are: