R v Jawid

1. [1]

   Jawid Jawid was arraigned before me on 14 June 2022 charged with the following offence:

2. [2]

   To that offence he pleaded not guilty to murder but guilty of manslaughter by reason of substantial impairment.

3. [3]

   The trial was conducted without a jury by consent of the parties, and an order was made by the Court to that effect pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW).

4. [4]

   The issue at the trial was whether the accused had a defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) which would result in a special verdict, as the Crown contended, or whether the accused was guilty only of manslaughter by reason of a substantial mental health impairment under s 23A of the Crimes Act 1900 (NSW), as the accused contended. References in this judgment to “s 28” and “s 23A” are references to those two provisions.

5. [5]

   The trial was conducted on the basis of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), together with evidence given by two forensic psychiatrists, Dr Kerri Eagle engaged by the Crown, and Dr Stephen Allnutt, engaged by the accused. Each of the psychiatrists had prepared a report which was received into evidence. In addition, the psychiatrists gave concurrent evidence and answered questions from both the Crown and Mr James QC who appeared for the accused.

Legal principles

1. [6]

   This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged. Where a defence of substantial impairment is raised by the accused, the onus is on the accused to prove that he is not liable to be convicted of murder (s 23A(4)), and that proof is on the balance of probabilities: R v Ayoub [1984] 2 NSWLR 511 at 515.

2. [7]

   In order to prove the charge of murder, the Crown must prove that there was a voluntary act of the accused that caused the death of the deceased, that the act was carried out with an intention either to kill or to cause really serious bodily harm or was done with reckless indifference to life. The Crown case was not based on reckless indifference but on an intention at least to inflict really serious injury. The Crown must also prove that the act of the accused was not done in self-defence. There is no evidence in the present case to suggest that self-defence is an issue.

3. [8]

   The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. Subject to the discussion later in this judgment, the obligation on the Crown is only to prove the elements of the charge beyond reasonable doubt.

4. [9]

   In reaching my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of this case. My task must be undertaken free of prejudice or sympathy in any of its forms.

5. [10]

   The one issue in this trial is whether, on the one hand, the accused is not criminally responsible for the offence by reason of a mental health impairment or, on the other hand, whether by reason of a mental health impairment which is so substantial liability for murder should be reduced to manslaughter. What is unusual about the issue in this trial is that it is the Crown which contends that the accused should be found not to be criminally responsible, and it is the defence who contends that the accused is guilty of manslaughter.

6. [11]

   The issue is complicated by the defence submission that the Crown cannot run the defence contained in s 28, but that, if it did so, it would have to prove the impairment beyond reasonable doubt. I will return to the parties’ submissions later in the judgment.

Background

1. [12]

   The agreed facts can be summarised as follows:

2. [13]

   The deceased was born in Kabul, Afghanistan in June 1976. He left Afghanistan and moved to India with his family as a teenager, before immigrating to Australia when he was 20 or 21 years old. Whilst he was in India, the deceased met the accused. They became friends.

3. [14]

   Since about 2001, the deceased worked at the Mirage Apartments complex in Pyrmont, initially as a security guard and later as the Building Manager. He lived on site, and over time had occupied different units within the complex.

4. [15]

   The accused commenced working at the Mirage complex in the employ of the deceased. He initially worked as a security guard but, at the time he committed the offence, he was employed as an Assistant Building Manager.

5. [16]

   Around 2017, the deceased sacked the accused because of the accused’s behaviour and drinking outside work. The deceased was concerned that the accused would bring those problems to work. About six months later, the deceased gave the accused another chance and allowed him to return to his role at the Mirage Apartments.

6. [17]

   On 18 August 2018, the accused corresponded on Facebook Messenger with a friend. During the exchange, the accused wrote a message which read, “I had a fight with bashir too he was one day too much bossy next I went put knife on his naek (sic) I was about to mil him swear to ahllah but stop my self bcz he is my best friend and I love him so since then we don’t talk much just see work we say Salam and that’s 8 (sic).”

7. [18]

   About 2-3 months before 16 July 2020, the deceased told his long-term partner, Winnie Sheen, “I’m not good with Jawid. He has been playing with a knife. Not good with Jawid”. The deceased and Ms Sheen both lived in different apartments in the Mirage Apartments complex.

8. [19]

   From early June 2020, the deceased developed a habit (which he had not had previously) of locking the door to his apartment. He told Ms Sheen that he did so because he was worried about the accused.

9. [20]

   At 3.53am on 22 June 2020, the accused sent the deceased a message that read, “I can’t work today but we need to talk”. That evening, he sent messages which read, “End of the day after all I love u” (at 6.28pm) and “U make make me cry unfair” (at 6.29pm). The deceased did not respond.

10. [21]

    On 24 June 2020, the accused sent a series of text messages to the deceased between 12.23am and 1.31am. The messages, whilst not making much sense, seemed to suggest that the accused thought that the deceased might want to kill him, that the accused thought the deceased had problems, but that the accused loved the deceased. The deceased does not appear to have responded to those messages.

11. [22]

    Later the same morning, the deceased spoke to his friend Carmel Dever. He told her he that was concerned about someone and said, “I need to try and get help for someone who thinks I am going to hurt him”. Ms Dever sent the deceased the number for the Mental Health Line later the same day.

12. [23]

    On 11 July 2020, a woman called Lesley Strydom spoke with the deceased. He told her that the accused had been going off the rails, the accused blamed him for everything that was going wrong in his life, and he considered that the deceased was a curse. The deceased said that the accused had told the deceased that he was going to kill him.

13. [24]

    At 6.53am on 14 July 2020, the accused sent the deceased a message asking why his shifts were being cut. On that evening, the accused called a man named Yero Sall. He asked Mr Sall to come to his house to talk. The accused told Mr Sall that he believed that he was about to be terminated from work.

14. [25]

    At 10.46am on 15 July 2020, the accused attended the Commonwealth Bank branch at Carlingford Court. Commonwealth Bank records show that the accused withdrew $3,400.

15. [26]

    At about 4pm on that day, the accused returned to Carlingford Court where he purchased two large chef’s knives from Target. The accused purchased the first knife, a 20cm German quality chef’s knife, and paid the register attendant in cash. Two minutes later, he purchased a second knife from the same attendant: a 18cm steel Sansoku knife. The accused again paid cash. The Sansoku knife was later found at the scene having been used by the accused to stab the deceased.

16. [27]

    At 3.10pm, about an hour before he purchased the two knives, the accused made an eight-minute phone call to the mobile phone of his lawyer Zemarai Khatiz.

17. [28]

    At 6.47pm on that day, the accused sent the deceased a message which read, “If it makes u happy be happy my friend”. At 6.54pm, he sent a second message which read, “I’m sure this makes u sad (emojis)”.

18. [29]

    On the morning of 16 July 2020, the accused drove his white Holden Viva from his house in Telopea to the Mirage Apartments. He stopped on his way at a 7/11 service station in West Ryde to purchase a coffee. The accused was wearing a navy-blue suit and a tie.

19. [30]

    At 7.50 am, the accused parked his car near the IGA on Murray Street Pyrmont, close to the corner of Bunn Street. He removed an unknown item from the front passenger side door before walking to the lobby of the Mirage Apartments and into the office behind the concierge desk. At this time, the deceased was also in the lobby area.

20. [31]

    At about 7.55am, Sarka Slavickova and Matthew Duniam entered the lobby of the Mirage Apartments and walked towards the lifts. They saw the deceased and the accused standing in front of the concierge desk having an argument in Arabic. Whilst waiting for the lift to arrive, Ms Slavickova and Mr Duniam noticed the deceased back away from the accused. They saw the accused, who was holding a chef’s knife, move towards the deceased. The accused raised the knife above his shoulder and lunged the knife several times at the deceased.

21. [32]

    Ms Slavickova and Mr Duniam noticed blood coming from the deceased’s head and Ms Slavickova yelled out to Mr Duniam “He has a knife, we have to run”. Fearing for their safety, they ran from the building. They notified a security guard at the nearby Ibis Hotel. Ms Slavickova called Triple-0. The call was logged at 7.57am.

22. [33]

    The accused stabbed the deceased several times in the head, neck and chest. The deceased’s screams could be heard by several residents of the Mirage Apartments. The deceased fell to the ground bleeding profusely from the wounds and lost consciousness.

23. [34]

    Michael Burokas, who observed this from the mezzanine level, called out to the accused and asked, “What happened?” The accused did not respond. Mr Burokas described him as appearing “very calm and focused”. At the time, Mr Burokas assumed the accused was rendering assistance to the deceased.

24. [35]

    Mr Burokas returned to his unit briefly. When he walked back to the mezzanine a minute later, he saw the accused standing in the lobby about four metres away from where the body of the deceased lay. He was holding a mobile phone to his left ear. Mr Burokas called out to the accused, again asking “What happened?” The accused did not answer.

25. [36]

    At about the same time, Dr Joseph Chan exited the lifts into the lobby. He saw the deceased lying on the ground and did not see any indications of life. Due to concerns for his own safety, he left the building. As he did so, he saw the accused, who was standing just outside the building on Murray Street smoking. Dr Chan noticed a few drops of blood on the floor in the area around where the accused was standing. He saw drops of blood on the accused’s face. Dr Chan described the accused in the following terms: “[he] appeared agitated, he was pacing and was restless. He looked anxious and slightly angry in his facial expressions as if something was on his mind. I noticed he was breathing heavily and fast”.

26. [37]

    Dr Chan spoke to the accused and asked him, “Are you ok?”. The accused replied, “Call the police”. Dr Chan moved away from the accused and called Triple-0. The call was logged at 7.58am. As he was on the phone, Dr Chan saw the accused walk down Murray Street in the direction of the Novotel.

27. [38]

    Jeannette Shaw came downstairs and started to walk towards Murray Street. As she did so, she heard Ms Slavickova yell out “Call the police”. As Ms Shaw was standing in the driveway of the Novotel Hotel (on Murray Street), she noticed the accused (whom she recognised as the security guard for the Mirage Apartments) come out of the lobby and stand under the Mirage sign. She walked over to the accused and they had the following conversation:

28. [39]

    At the time, the accused was holding a coffee cup. Ms Shaw noticed his hands had blood on them and they were shaking. She described the accused’s demeanour as “very calm”, “very unanimated”, and said that he appeared “guilty and sad” when he said, “I kill him”. The accused then walked to his car. At 8.01am, the accused drove away from the area.

29. [40]

    There is no evidence that the accused was under the influence of drugs or alcohol at the time he committed the offence. None of the witnesses who saw and/or spoke to the accused at the time of or immediately after the murder described him as appearing intoxicated.

30. [41]

    At 8.03am, police and paramedics arrived the Mirage Apartments complex and located the deceased lying in the lobby. The deceased had significant traumatic injuries to his face and neck, a severe stab wound to his left hip, a laceration to his lower back and several wounds to his right arm. He was pronounced dead at the scene due to his injuries, and as result of the sustained irreversible blood flow. The deceased’s trachea and external jugular veins appeared to have been severed.

31. [42]

    Police located the Sansoku knife (purchased by the accused from Target the previous day) on a console table in the lobby, metres away from the deceased’s body. The tip of the knife was visibly bent. The knife was later analysed. DNA recovered from areas on the blood-stained knife was found to have the same profile as that of the deceased.

32. [43]

    A crime scene was established, and a crime scene examination was conducted by specialist officers.

33. [44]

    At 8:06am, as he drove away from the crime scene, the accused attempted to call the mobile phone of his lawyer Mr Khatiz. The call was unsuccessful. About 20 seconds later (8:07am), the accused again tried to call his lawyer. This time the call was successful. It lasted over five minutes). The calls to his lawyer, Mr Khatiz were the first phone calls made by the accused after the stabbing.

34. [45]

    At 8.14am, the applicant called his aunt, Malalai Malalai. The call lasted 13 minutes.

35. [46]

    The accused then drove to Bondi Beach where he left his car. He then travelled to Parramatta. He met his aunt in Parramatta later that morning where she gave him a sum of money.

36. [47]

    From about 6.28pm on the same day, the accused was captured in various portions of CCTV footage walking around the Parramatta CBD. Shortly before 7.07pm, he was found by a passer-by lying down in a car park on Macquarie Lane. He appeared to be heavily affected by alcohol. There was a half-full cup of what appeared to be beer nearby, and he was snoring. The passer-by called Triple-0 and an ambulance was dispatched to the scene.

37. [48]

    The accused was treated by ambulance officers who observed that he appeared to be affected by alcohol. Police were notified and attended the location. Upon confirmation of the accused's identity, he was placed under arrest. Police observed the accused’s clothing, hands and iPhone to be stained with blood. The accused’s phone was seized by police.

38. [49]

    The accused was searched by police. They located and seized a number of items including the following:

39. [50]

    At the time of his arrest, the accused made unsolicited admissions in the presence of police and ambulance officers to having stabbed the deceased. His manner of speech was described by one officer as rambling and slurred. As he spoke, the accused started kicking and thrashing around on the ambulance bed. He was held still by a number of officers while restraints were placed on him. He yelled and cried at times while at other times he mumbled and slurred his words.

40. [51]

    The admissions made by the accused were recorded using body-worn video. They included:

41. [52]

    During the course of the same conversation, the accused told police he was a “big drunk”. In response to questions about whether he had driven to Parramatta, the accused told police that his car was at Bondi Beach.

42. [53]

    At about 7.38pm on 16 July 2020, Police executed a search warranted at the Telopea residence, where the accused resided with his aunt. A number of items were located and seized from the bedroom occupied by the accused including, inter alia:

43. [54]

    Whilst at the hospital the accused made further admissions in relation to the offence and discussed his motivation for killing the deceased. Between 9.04pm and 9.58pm, he had a lengthy conversation with Senior Constable Blackshaw which was recorded on body-worn video. The accused spoke of the deceased having “tortured” him over a period of months. He said he had stabbed the deceased in the neck. He claimed the deceased had taken everything from him. He said the deceased had naked pictures of him. He claimed to have been sodomised with a bottle, but did not claim that the deceased was responsible as far as could be understood. However, he said that he believed that the deceased was responsible for taking and sharing naked pictures of him (the accused) which were obtained while he was intoxicated.

44. [55]

    The accused told SC Blackshaw that, a day earlier, anticipating that he may be arrested as a result of what he planned to do to the deceased, he had transferred an amount of money to his aunt for her treatment. The accused’s bank records confirm that he made a withdrawal of $3,400 the day before the murder, as noted at [25]. The accused said that he was going through a hard time, but that the deceased was “torturing him”.

45. [56]

    The accused made allegations about the deceased’s alleged illegal business practices including underpayment of wages both to himself and others. He described his actions in killing the deceased as “clean[ing] the dirt from society”.

46. [57]

    The accused admitted that he was responsible for killing the deceased, and asked SC Blackshaw what sentence he was going to get. He later asked SC Blackshaw whether he would be charged. The accused acknowledged that “he did it” and said, “Give me fuckin’ sentence for 20 years. I did it, yeah”.

47. [58]

    The accused told SC Blackshaw that it was not an accident, that in fact he had purchased the knife intending to use it to attack the deceased. This was because, in his words: “He fucked my dignity, he fucked my life”.

48. [59]

    SC Blackshaw had a further conversation with the accused at 12.13am on 17 July 2020. The conversation was again recorded on body worn video. In it, the accused claimed that people were following him, and that a gang was after him, but he didn’t know who they were. He said he had been taking too many drugs, and had started drinking. He complained about the shifts he was given at work by the deceased when the deceased knew he needed to look after his aunt who had stage 4 cancer. He said “they” were playing with his head, and the deceased just wanted to get him drunk so he could kill him.

49. [60]

    The accused also told SC Blackshaw that he had spoken to his lawyer the previous day, and his lawyer had told him the lawyer would come with him to hand himself in. During both conversations with SC Blackshaw, the accused said that he had consumed two bottles of whisky after the offence and before he was arrested by police in Parramatta.

50. [61]

    Whilst the accused was at hospital, police located and seized a number of items from the accused, which were later forensically examined, including a pair of navy-blue pants and a white shirt. The deceased’s DNA was located on both pieces of clothing.

51. [62]

    The accused was assessed by doctors and treated for a superficial wound to his right index finger. As he was being examined, the accused asked the doctor about mental health and asked him to help him out, saying “Come on Doc. Mental health, what do you think? Sign some papers and say it’s mental health. I have done this in the past can’t we just do it again?” and “Ah I have beaten this sort of thing six times. I have a good lawyer he will get me off no problems, mental health is easy, what you think”.

52. [63]

    After being examined, the accused was released into police custody.

53. [64]

    At about 1.15am on 17 July 2020, the accused was taken to Parramatta Police Station. The accused was still agitated and highly intoxicated. He told the custody manager “please, I did this crime at 9 in the morning. They arrest me at 8 [pm] somewhere I don’t know I’m drunk…I killed a guy, I know I’m fucked. It’s just too much”.

54. [65]

    At 1.20am, the accused began headbutting the perspex door of the dock. He was yelling, “I am mental, mental, mental”. Constable Byrne activated his body- worn video camera and had a conversation with the accused. The accused complained of being in pain. He headbutted the door again but a short time later, after a conversation with Sergeant Thomas, he appeared to fall asleep.

55. [66]

    At 3.37pm on 17 July 2020, specialist officers conducted a forensic procedure on the accused at Parramatta Police Station. During the course of that procedure, swabs were taken of the accused’s hands and he was photographed. Prior to that procedure, the accused was given the opportunity to participate in a lengthy consultation with his solicitor, Mr Khatiz, who was present at the Police Station.

56. [67]

    At 5.00pm that day, the accused participated in an electronically recorded interview. His solicitor, Mr Khatiz was present throughout the interview. The accused said, inter alia:

57. [68]

    A post-mortem was conducted on 20 July 2020 and an interim Cause of Death Report was prepared by Dr Szentmariay. The report listed the cause of death as “multiple stab wounds” and noted that there were numerous stab wounds to the deceased’s neck, torso and extremities. The deceased was noted to have sustained 25 stab wounds including multiple wounds to his head and neck, right arm and shoulder, chest, left hip and buttocks.

Legislation

1. [69]

   Part 3 of the MHCIFP Act is headed “Defence of mental health impairment or cognitive impairment”. Section 28 within that Part provides:

2. [70]

   Section 23A of the Crimes Act provides:

3. [71]

   The definition of “mental health impairment” is identical in s 4C of the Crimes Act and Section 4 of the MHCIFP Act. The definition is:

Submissions

1. [72]

   Mr James QC, for the accused, submitted that neither the case law nor the MHCIFP Act supported the proposition that it is open to the Crown both to prosecute and defend in the same case. He pointed to the fact that Part 3 of the MHCIFP Act deals with the “Defence of mental health impairment or cognitive impairment”. He submitted that the provisions in the MHCIFP Act are a code, and nowhere does the Act authorise or permit the Crown to raise a defence of mental illness.

2. [73]

   Mr James submitted that, insofar as intent has to be proved, it must be proved beyond reasonable doubt. He submitted that one cannot elide the necessity to prove the intent by mounting a case of mental illness, and proving that only on the balance of probabilities.

3. [74]

   Mr James submitted that it was the responsibility of the Crown to prove all of the elements of the offence beyond reasonable doubt. That included negating defences such as self-defence. He submitted that there was nothing to suggest that the defence of mental illness was in a different category. He submitted that it was to go a lot further to suggest that the Crown could in the first instance raise the defence, and to do so contrary to s 141 of the Evidence Act 1995 (NSW), which requires proof beyond reasonable doubt for the Crown in criminal proceedings.

4. [75]

   The Crown submitted that R v Brewer (No 2) [2015] NSWSC 1547 supported two propositions. First, if a question arises as to the accused’s mental state, evidence of it can be adduced by the defence, the Crown or the judge. Secondly, the standard of proof that the accused was not criminally responsible was on the balance of probabilities. The Crown submitted that further support for the first matter was to be found in R v Foy (1922) 39 WN (NSW) 21.

5. [76]

   The Crown submitted that the psychiatric evidence demonstrated that the accused was not able to reason as to the wrongfulness of his actions, that this was the effect of a mental health impairment, and in that way the accused was not criminally responsible in accordance with s 28.

Is the Crown permitted to raise a defence of mental illness?

1. [77]

   It is certainly true that nothing in Pt 3 of the MHCIFP Act expressly gives to the Crown the right to assert that an accused is not criminally responsible by reason of a mental health impairment. I accept also that headings to Parts of an Act are to be taken to be part of the Act: s 35(1)(a) Interpretation Act 1987 (NSW). The significance of that is that what is contained in s 28 is to be regarded as a defence to a charge. It might be thought, therefore, that it is not appropriate for the Crown to be raising a defence to a charge that it brings against an accused.

2. [78]

   However, the issue of mental illness can be regarded as in a category of its own as far as defences go. This is particularly because the mental illness of an accused can be put to the jury even against the wishes of an accused, and by his or her own counsel, by the Crown or by the trial judge.

3. [79]

   In Foy, the Court of Criminal Appeal was construing s 5(2) of the Criminal Appeal Act 1912 (NSW). That subsection provides:

4. [80]

   Chief Justice Cullen said (at 22):

5. [81]

   It is clear also that a trial judge may call a witness in relation to the issue of the accused’s mental illness even where the accused does not wish to do so: R v Damic [1982] 2 NSWLR 750 at 754, 764 and 765; R v Issa (Unrep., Supreme Court of NSW, Sperling J, 16 October 1995); R v Waszczuk [2012] NSWSC 1080 at [11]; R v Meddings [1966] VR 306.

6. [82]

   In Brewer (No 2) counsel for the accused was instructed not to run a defence of mental illness. Counsel accepted, however, that the defence was squarely raised by the evidence of two psychiatrists, and the trial judge in the judge-alone trial found the accused not guilty on the ground of mental illness.

7. [83]

   Although neither Sperling J in Issa, Adamson J in Waszczuk nor Sholl J in Meddings considered that the Crown could raise, or argue in favour of, a finding of not guilty by reason of mental illness, other authority suggests that the position is otherwise.

8. [84]

   In R v Ayoub Street CJ (with whom Slattery J agreed) said (at 512-515):

9. [85]

   The third member of the Court, Enderby J, did not doubt that the Crown could raise the issue of mental illness, but held that if the Crown contended for a not guilty verdict be reason of mental illness, such a matter needed to be proved beyond reasonable doubt.

10. [86]

    Three significant things should be noted from Ayoub. First, no doubt was cast by any member of the Court on the notion that it was as open to the Crown to raise and to prove mental illness as it was to the defence. Indeed, specific reference was made by all three members of the Court to what results from the Crown raising the issue. Secondly, as in the present matter, the case concerned a contest between the Crown seeking a finding of not guilty on the ground of mental illness, and the defence who sought a finding of diminished responsibility. Thirdly, the majority determined that the standard of proof in relation to the Crown’s assertions was the balance of probabilities.

11. [87]

    In the absence of other authority, I consider myself to be bound by Ayoub. I note that Kirby J in R v Jennings [2005] 789 at [28] followed Ayoub, not only in relation to the onus of proof, but also on the issue of the Crown being able to raise the (then) M’Naghten defence of mental illness in circumstances where the accused raised only diminished responsibility.

12. [88]

    Further support for that position is to be found in remarks of Deane and Dawson JJ in The Queen v Falconer (1990) 171 CLR 30 at 62 where their Honours said:

13. [89]

    The present case is not one where the issue of mental illness had not been raised by the defence. In R v Joyce [1970] SASR 184 the Full Court of the Supreme Court of South Australia (Bray CJ, Walters & Zelling JJ) said (at 188), when commenting on R v Cottle [1958] NZLR 999:

14. [90]

    Except for the rather technical view that the Crown should not be able to rely on what is described as a “defence” to a charge that it is preferring (although cf. what was said in Falconer (above) as to whether it is a defence), if mental illness is raised by the accused (as it was here as a result of the accused’s plea), no reason is shown why the Crown should not or could not contend for a finding of no criminal responsibility, in circumstances where it is the duty of the trial judge to leave that question to the jury.

15. [91]

    Accordingly, the Crown is entitled to raise the issue of criminal responsibility by contending that the accused has a mental health impairment, even where the accused contends only that his capacity was substantially impaired, and that his liability should be reduced from murder to manslaughter.

16. [92]

    The standard of proof is on the balance of probabilities, both as a result of what is said in Ayoub, and by reason of s 28(2) of the MHCIFP Act. Nothing in s 141 of the Evidence Act requires proof beyond reasonable doubt in the circumstances.

Is criminal responsibility a threshold issue?

1. [93]

   The Crown submitted that the issue of criminal responsibility was a threshold issue which had to be determined prior to a consideration of any defence of substantial impairment.

2. [94]

   Mr James QC submitted that, contrary to what the Crown contended, there was no priority of consideration between the defence under s 28 and the defence of substantial impairment under s 23A. Mr James submitted that the Crown could not avoid the necessity of proving the other elements of the offence by proving first that the accused had a mental illness defence. In that regard, Mr James submitted that if an accused in adversarial proceedings chooses to assert a defence which would reduce murder to manslaughter, the Crown cannot then run a different case to change the standard of proof, and thereby negate the defence raised by the accused.

3. [95]

   The question of criminal responsibility is closely related to proof of the elements of the offence. The elements of the present offence are these:

4. [96]

   The accused does not dispute that all of these elements are made out. I am satisfied beyond reasonable doubt from the agreed facts, that elements (1), (2), (3) and (5) of the offence of murder have been established. Although the accused does not dispute that he had the intention required by element (4) (cf. R v Davidson (No 2) [2019] NSWSC 2011), for reasons which follow, its consideration must await other findings.

5. [97]

   There appears to be some conflict in the authorities about whether the question of intention should be considered before or after consideration of any defence of mental illness. In R v S [1979] 2 NSWLR 1 the Court of Criminal Appeal determined that a jury should be directed that they must consider all the elements of the offence alleged against the accused on the presumption that the accused is sane, followed by a determination on the balance of probabilities of whether he was suffering from a mental illness so as not to be responsible for his act. However, the High Court in Hawkins v The Queen (1994) 179 CLR 500 at 517 subsequently made clear that the issue of whether the accused is criminally responsible for his act must be determined before the issue of intent is to be addressed.

6. [98]

   In R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226, Hunt A-JA (Spigelman CJ and Howie J agreeing) said at [32]:

7. [99]

   In my opinion, the Crown’s submission, that the issue of criminal responsibility should be, and indeed must be, considered before any question of substantial impairment is to be considered, should be accepted. There are a number of reasons for that.

8. [100]

   First, Minani determined, following Hawkins, that the issue of whether an accused is criminally responsible for an offence must be determined before the issue of the accused’s specific intention can be dealt with. If the accused is found not to be criminally responsible, the question of his intention is not reached.

9. [101]

   Secondly, it follows that consideration of substantial impairment only arises when all of the elements of the offence, including intention, have been found against the accused. Indeed, s 23A(1) commences by saying,

10. [102]

    Thirdly, although the tests in s 28 and s 23A are similar, they are not the same. In Jennings Kirby J said:

11. [103]

    In R v Eyuboglu (No 2) [2019] NSWSC 285, Button J found that the defence of mental illness was not made out because he was not satisfied on the balance of probabilities that the accused did not appreciate the wrongfulness of what he was doing at the time. His Honour then went on to consider the partial defence of substantial impairment. He set out the elements of that defence that had been established when he considered the defence of mental illness. They were, first that the accused suffered from an abnormality of the mind and, secondly, that it arose from an underlying condition being schizophrenia.

12. [104]

    His Honour then said at [61]:

13. [105]

    Those cases make clear that the bar for establishing substantial impairment is lower than the bar for establishing mental illness. That must be so, when the result of a successful defence under s 28 is that the accused has no criminal responsibility, whereas the result of a successful defence under s 23A is conviction, but for a lesser crime. A finding under s 23A is a finding that the accused has some criminal responsibility which reduces murder to manslaughter. In that way, if a determination of substantial impairment was made first, it would leave open whether the accused had no criminal responsibility.

14. [106]

    It is necessary, therefore, first to determine if the accused suffers from a mental health impairment. Although both s 28 and s 23A refer to both mental health impairment and cognitive impairment, there is no suggestion in the present case that the accused suffers from a cognitive impairment. Accordingly, I have made no further reference to “cognitive impairment”. Nevertheless what is said in terms of legal principle concerning mental health impairment applies equally to a person suffering from a cognitive impairment.

Does the accused suffer from a mental health impairment?

1. [107]

   Both psychiatrists considered that the accused had a mental health impairment at the time the offence was committed. Both were of the view that the accused understood the nature and quality of his act but did not know that the act was wrong.

2. [108]

   Dr Eagle said:

3. [109]

   Dr Allnut said:

4. [110]

   Both psychiatrists agreed that the accused’s level of impairment was substantial. They were asked by the Crown Prosecutor, in effect, to compare s 28 and s 23A in this exchange:

5. [111]

   The difference between the two sections is (relevantly) that s 23A is focused on the accused’s capacity “to judge whether [his] actions were right or wrong”, and s 28 focuses on the effect of the mental health impairment “that [he] did not know that the act was wrong” in the manner explained by the words following in parentheses.

6. [112]

   On either test, both Dr Eagle and Dr Allnut consider that the accused lacked the capacity to reason to the wrongfulness of his actions and to judge whether the act was right or wrong.

Was the accused criminally responsible for his acts?

1. [113]

   Section 30 provides:

2. [114]

   Before reaching a conclusion on the issue of criminal responsibility I am obliged to consider the matters in s 29 of the MHCIFP Act which include the legal and practical consequences of such a verdict.

3. [115]

   If the verdict is “act proven but not criminally responsible”, I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community.

4. [116]

   On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by what is called “due process of law”. This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of the Mental Health Review Tribunal.

5. [117]

   The Mental Health Review Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office.

6. [118]

   The functions of the Tribunal are these:

7. [119]

   I note further that, in reaching a view on the issue of the accused’s criminal responsibility, I am not to be influenced by the consequences of a special verdict.

8. [120]

   I find beyond reasonable doubt that the accused deliberately stabbed the deceased on 16 July 2020 at Pyrmont in the state of New South Wales, and that the acts of stabbing were the cause of the deceased’s death.

9. [121]

   I am satisfied, on the balance of probabilities that the accused at the time of the commission of the offence had a mental health impairment, being a psychotic disorder and an anxiety disorder. I am further satisfied on the balance of probabilities that the mental health impairment had the effect that the accused did not know that the act of stabbing the deceased was wrong, in that he could not reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong. This was because of his systematised persecutory delusional belief relating to the deceased.

10. [122]

    In those circumstances, it is not necessary to determine if the accused had the necessary intention to kill or inflict grievous bodily harm on the deceased.

11. [123]

    In the circumstances, I will return a special verdict in accordance with s 30 of the MHCIFP Act.

12. [124]

    Having regard to s 33(3) of the MHCIFP Act, I am not satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by the accused’s release.

13. [125]

    Accordingly, I make the following orders:

    1. (1)

       I return a special verdict of act proven but not criminally responsible.

    2. (2)

       I order that the accused be detained pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law.

    3. (3)

       I refer the accused to the Mental Health Review Tribunal.