Supreme Court New South Wales Medium Neutral Citation: R v Warren Scott (No 2) [2021] NSWSC 1201 Hearing dates: 23, 24, 26, 31 August and 14 and 16 September 2021 Date of orders: 22 September 2021 Decision date: 22 September 2021 Jurisdiction: Common Law Before: N Adams J Decision: (1) I find the accused not guilty of murder but guilty of manslaughter. (2) The accused is convicted of manslaughter. (3) The proceedings are stood over for submissions on sentence on 7 December 2021 at 10:00am. Catchwords: CRIME — Murder — Partial defences — Substantial impairment – trial by judge alone – where accused admitted to stabbing deceased 31 times but relied on partial defence of substantial impairment – where accused was schizophrenic and non-compliant with medication due to alcohol dependence – whether capacity to understand events, judge whether actions were right or wrong or control his actions were substantially impaired by abnormality of mind or by intoxication – whether impairment so substantial as to warrant reduction in liability from murder to manslaughter – community values – accused convicted of manslaughter Legislation Cited: Crimes Act 1900 (NSW), ss 18, 23A, 428A, 428C Criminal Procedure Act 1986 (NSW), s 133 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Potts v R [2012] NSWCCA 229 Quinn v R [2018] NSWCCA 297 R v Byrne [1960] 2 QB 396 R v Eyuboglu (No 2) [2019] NSWSC 285 R v Haydar (No.3) [2017] NSWSC 159 R v Hutchison & Wilkinson [2018] NSWSC 1759 R v Quinn (No 2) [2016] NSWSC 1244 R v Trotter (1993) 35 NSWLR 428 Category: Principal judgment Parties: Regina (Crown) Warren Anthony Scott (Accused) Representation: Counsel: Ms N Keay (Crown) Ms M Avenell SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) Aboriginal Legal Service NSW/ACT File Number(s): 2019/105874 Publication restriction: Nil. Judgment 1. On 4 April 2019, Warren Anthony Scott was drinking at his mother's home in Eden with her friend Edward Carter. Without any warning or provocation he grabbed a knife and held it to his mother's neck. She was able to calm him down but ten minutes later he grabbed a second knife and threatened her again. Ms Scott fled the premises to get help, leaving the accused and the deceased alone. Police arrived sometime later and remained outside the premises monitoring the situation. During that time the accused stabbed the deceased 31 times. Police entered the premises, but Mr Carter had already died from his wounds. Mr Scott was charged with the murder of Mr Carter. 2. At the time of the stabbing the accused was a 36-year-old Aboriginal man who suffered from schizophrenia, an intellectual disability and chronic alcoholism. 3. On 23 August 2021, the accused was arraigned before me on an indictment charging him with the murder of Edward Carter. He pleaded not guilty to murder but guilty to manslaughter on the basis of substantial impairment. He contended that he was not liable to be convicted of Mr Carter's murder by virtue of s 23A of the Crimes Act 1900 (NSW) ("the Act"). Although intoxication under s 428C of the Act was initially flagged as an alternate basis for his plea of manslaughter, that basis was not pressed at the conclusion of the evidence. 4. The plea of guilty to manslaughter was not accepted by the Crown, and the trial commenced. I had earlier acceded to Mr Scott's application for his trial be heard by a judge alone: R v Warren Scott [2021] NSWSC 1004. It is thus my duty and responsibility to consider whether the accused is guilty or not guilty of murder and to return a verdict according to the evidence, which I have heard in accordance with the applicable law. 5. By consent, the trial proceeded by way of Audio-Visual Link ("AVL"). This was necessary due to Public Health Orders issued in response to the current COVID-19 pandemic. The accused, counsel and their instructing solicitors all appeared by way of AVL as did all of the witnesses. Although there were some technical difficulties on occasion, I am satisfied that the trial was conducted as closely as possible to a trial conducted in person. 6. The trial had to be adjourned on 31 August as the accused was taken to hospital for urgent surgery. The trial resumed on 14 September and closing submissions were concluded on 16 September 2021. At that time, I retired to consider my verdict. 7. Most of the lay evidence in the Crown case was not challenged by Mr Scott. The main disputes in the lay evidence concerned the extent to which the accused was intoxicated as opposed to suffering from psychosis at the time of the killing. Although the two expert forensic psychiatrists, Dr Kerri Eagle for the Crown and Dr Olav Nielssen for the accused, agreed that the accused suffers from schizophrenia, they disagreed about the extent to which his actions in killing the deceased could be attributed to his schizophrenia as opposed to his intoxication. 8. I propose to first summarise the relevant evidence before turning to direct myself as to the appropriate questions of law, my findings and my reasons for verdict. During these reasons, I will on occasion refer to the deceased as either Eddie, Uncle Eddie or Mr Carter. Similarly, I will on occasion refer to the accused's mother, Ms Scott, as Jessie and to the accused as either Warren or Mr Scott. I do this to accurately record the evidence as it was given and I mean no disrespect to those persons in doing so. The evidence John Stewart 1. John Stewart had lived in Moorhead Street for about 15 years near the accused's mother, Jessie Scott. Ms Scott is his cousin and he has known the accused since he was a baby. In 2019, the accused got a flat in Bega which is about 40 minutes from Eden by car. 2. Mr Stewart saw the accused on Tuesday 2 April 2019 when he took him from his mother's home in Eden to see his parole officer in Bega. Afterwards, he drove the accused back to Eden and dropped him off at Jessie's house sometime after midday. He described the accused as "a bit quiet, but he seemed all right". 3. In cross-examination, he said that he had seen the accused and the deceased talking and spending time together in the months before the stabbing and he believed they got on well. He had never seen an argument between them. He had never observed any issues nor had he ever heard them talk about money. Kevin Dixon 1. Kevin Dixon lives in Bega. Jessie Scott is his cousin and he has known the accused since he was a child. Mr Dixon saw the accused on 3 April 2019 when he picked him in the Woolworths carpark in Bega to drive him to his mother's home in Eden. 2. The accused had called Mr Dixon on someone else's phone and asked him to drive him to Eden because he was "freaking out" and wanted to go and see his mother. Mr Dixon explained that it was not the first time the accused had called him to say that he was "freaking out" and that the accused often became paranoid when not taking his medication. Mr Dixon picked him up from the park sometime after lunch. 3. Mr Dixon described the accused as "drunk and [not] himself, because he doesn't take his medication when he's drinking". He believed the accused had been sitting in the park and drinking every day for the last two weeks and he "never sobered up". Mr Dixon said the accused was unusually quiet and the only thing he said was "am I on a boat?". Mr Dixon said it "wasn't Warren sitting in the car" and that was "freaking [him] out as well". He said he had never seen the accused so quiet, just sitting and staring. Mr Dixon had driven the accused hundreds of times and he was usually "happy… laughing and joking" but on this occasion the accused was completely different and had a "blank stare" as though his mind was somewhere else. 4. The accused did not drink on the way to Eden, but he had a bottle of wine in his bag. They stopped at a bottle shop in Pambula and the accused bought another bottle of McWilliams port. 5. Upon arriving at Eden Mr Dixon talked to Jessie for about ten minutes. He said that Jessie and the deceased were having a drink and listening to music and Jessie was happy to see her son. He did not observe any issues between the accused and the deceased nor did he hear any conversations about money. He then drove the deceased to the bottle shop. He believed the deceased purchased a cask of Moselle, a bottle of lemonade for Mr Dixon and another bottle of port wine. 6. The deceased asked Mr Dixon to come back the following day as he wanted to get Jessie's car out of the mechanic's garage so that she could drive him back to Victoria. Mr Dixon then left and drove back to Bega. 7. When Mr Dixon returned to Bega someone told him that Mr Scott's flat had been left unlocked, both the front and back doors. Mr Dixon explained that this was highly unusual because the accused had "a lot of good stuff" in his flat. He said that even when the accused was drunk, he remembered to lock up his flat. He drove to the accused's flat and locked the doors. Bradley Troy 1. Bradley Troy lived next door to Jessie Scott and was friends with the accused. On 4 April 2019, he drove the accused to the local IGA to purchase alcohol. It was only a three or four minute drive to the shop so he estimated he saw the accused between 11:30am and 11:50am. He did not think the accused looked drunk although he could smell alcohol. Mr Troy said he would not have let the accused in his car if he seemed drunk. He said the accused was just "having a couple of drinks, just a normal day" and he did not notice anything unusual about him, although he did not take too much notice. Jessie Scott 1. As at April 2019, Ms Scott had lived in Moorhead Street for about ten years. The accused is her son and the third oldest of her eight children. She had known Eddie Carter for about 20 years or more. He came from Victoria. They were not related but she considered him family and considered him like a brother. He came to stay with her in January 2019. 2. She agreed that she participated in a walkthrough on 7 April 2019. That video was tendered and became exhibit A. 3. Ms Scott said that after the accused moved to Bega he would often come and visit, sometimes for a few hours and other times overnight. He had stayed over several times since the deceased moved into Jessie's place and she believed the accused and the deceased were "good mates". She had not observed any arguments. 4. The deceased was paying board and they shared the cost of food and drinks. She had never seen the accused lend money to anyone, but he had told her about lending money to people. She could not remember whom it was lent to or how much was lent but she had never heard anything about him lending money to the deceased. Ms Scott had not seen the accused buy anything for the deceased and could not think of any reason why the deceased would have owed the accused money. 5. Ms Scott recalled seeing the accused on the Monday or Tuesday before the stabbing. She stated in the walkthrough that he had not been drinking on those days but could not recall that in her evidence. She did not recall him going to hospital in the weeks or months before the offence. 6. Ms Scott remembered Mr Dixon dropping off the accused on 3 April 2019. She was not sure if the accused was drinking on that day. She did not remember Ms Arvidson coming over to fix the Bluetooth speaker or ordering a pizza. 7. There were large bins outside and a small foam esky bin inside for items such as bottles. Ms Scott said she usually put the rubbish out each night but could not remember specifically whether she had taken out the rubbish on the evening of 3 April 2019. 8. Ms Scott did not know what time the accused woke up on 4 April 2019 or what time he went to the IGA with Mr Troy. The three of them were sitting, listening to music and having a "good time" that morning. She and Eddie were drinking the cask wine and the accused was drinking port. She did not think the accused drank any of the cask wine. 9. Ms Scott said they were all sitting in the lounge room when "all of a sudden" Warren "jumped up and rushed" "straight to the kitchen, opened a drawer" and "pulled the biggest knife out." She said he was "full of rage" and stood "right there in my face, had the knife up to my throat." He did not seem interested in Eddie at all and did not say anything about money. The accused said, "I'm sick of this" and "where do you want it?". She calmed him down by saying, "I'm your mother" and "why are doin' this for?". He then walked back to the kitchen and put the knife away. When he came back he sat beside her and calmed down a bit while she continued talking. 10. After about 10 to 20 minutes he "just got up again" and "grabbed a smaller knife", "a steak knife". He then came back to where she was sitting and pointed the knife at her neck while saying "where do you want it, where do you want it?". Again, he did not seem interested in Eddie and did not say anything about money. She screamed out to Eddie who "went up to rush him". When the accused turned around she "jumped up and rushed straight for the back door and ran around the front". The last glimpse she had of Eddie before leaving was that he was near the "doorway or something" when Warren grabbed him. 11. Once outside Jessie Scott yelled out to her neighbour and relative Stacey Arvidson who came out of her house. While they waited for the police to come she heard "very aggressive and abusive" yelling and screaming from Warren. She went to the window to see what was happening and saw that the accused "had Eddie… on the lounge with a knife to his… throat", "he had him in a lockjaw" with one arm around him, pinning him down on the lounge and the other hand holding a knife. She told him to let Eddie go, because "he never done nothin' wrong to him." She then asked Stacey to come and have a look too and she heard her trying to get Warren to leave Eddie alone. 12. Whilst waiting for police she watched him through the curtain. Police did not arrive for about half an hour. She could hear voices but not what they were saying. She said the accused did not look like he was "in his own state of mind" and she had never seen him like that before. She believed he looked "possessed". She described it in this way: "He just wasn't himself; he was just like something evil you see in a movie… just the way he looked and the way he sounded, it was just so – so evil." 1. She said that he had appeared possessed from the first time he threatened her with a knife and throughout the incident with Eddie. Ms Scott said she had seen him drunk hundreds of times before and that this day was different to the other times. Ms Scott confirmed that the accused did not take his medication when he was drinking but she did not know when the accused had stopped taking his medication. Stacey Arvidson 1. Stacey Arvidson lived across the street from Jessie Scott, who is her aunt. She said that the accused's older brother was her older brother as well. She has known Ms Scott and the accused since she was little. 2. Ms Arvidson saw the accused on the evening of 3 April 2019 when she went to Aunt Jessie's house to fix the Bluetooth speaker. She went over at about 5:30pm and the deceased and Aunt Jessie were there as well. She had a chat and a laugh with the three of them and believed they were all drinking a cask of white wine. Ms Arvidson recalled the accused being quieter than usual. She said he would usually be the one cracking jokes but he was just giggling. The deceased came back after dark and asked her to order a pizza because he was shouting everyone dinner. 3. She had seen the accused and the deceased together in the past few months and they seemed to get on. She said that they chatted, they laughed, cracked jokes and never seemed to have any issues. There was never any talk about money. 4. She participated in a walkthrough DVD on 7 April 2019 which was tendered and became exhibit B. 5. Ms Arvidson said that on the afternoon of 4 April 2019 she heard Aunt Jessie screaming out her name and telling her to call the police because "Warren's mucking up, he's smashing my house up, he's mucking up". Ms Arvidson called triple-0 and told them that Mr Scott was smashing the house and was intoxicated. She told the operator the accused was drunk because Aunt Jessie told her that. 6. When she joined Aunt Jessie, who was sitting on the grass outside her house, she learned from her that Mr Scott had a knife. She then called triple-0 back and the operator asked her to have a look through the window to see if anybody was injured or if there were any weapons. The second triple-0 call was tendered and became exhibit C. Ms Arvidson told the operator that the accused "[had] a knife and he's holding it to somebody's throat at the moment". She said it was "just [a] normal kitchen knife" and said that it was being held to Uncle Eddie's throat. She said that no one was injured yet but that it was "escalating pretty quickly". 7. Ms Arvidson went to the window and could "see everything" inside. She said she could not see the knife and that: "…Uncle Eddie was sitting… sort of shaking. Warren was sitting next to him … with a cigarette, just smoking his cigarette, just looking like, it was very casual… he was just smoking that cigarette like, like he wasn't doing anything wrong. It was just like a normal thing. And I've never seen that with him before. Never." 1. She went back to Aunt Jessie who was sitting on the grass and then heard both Mr Scott and Eddie screaming "Stacey, Stacey, come here". She went back and when she looked through the window again she saw that: "... They were sitting very similar to how they were sitting the first time. Uncle Eddie was still sitting with his hands, um, still, he was shaking a little bit more at that stage. Warren was sitting next to him the same way [with a knife] pointing right in the side of it was pushing into the skin, telling me to get his mother inside. Uh, Uncle Eddie was… it was like confusion. He said a completely different name but he was pleading with me to get… And then when he realised who [he] was supposed to be talking about, he said, 'Jessie'. And then I shook my head… and then I just walked off. There was no way I was even going to try and reason with that, not with what I saw." 1. She said that both times she looked through the window: "… Warren was eerily calm… [he had] a possessed look in his eyes… that's what scared me the most, was when I looked into his eyes. But he was just calm, like he was just having a cigarette, like he was enjoying a cup of tea and a cigarette… he wasn't frantic. Even when they were talking to him, he was just answering them, like, anybody answers a normal question." 1. Ms Arvidson said that when the police came they tried to communicate with Eddie but only the accused responded saying, "I'm in it now." 2. She had seen the accused drunk on many occasions but explained that this occasion was different. She thought he was "possessed" because the accused was usually "happy go lucky" when he was drinking but on this day he was "flat", "really calm" and his eyes were "really dark". She said that: "… it felt like he could look straight through his eyes and he could look into yours if you know what I mean. That is the best way I can kind of explain it. It was really weird." 1. She agreed that he seemed like he was in a different head space, different from normal people and different from when he was just drunk. She stated: "… he is usually the one, you know, he will have a yak with anyone. He will make anybody laugh, yeah, just his personality usually is very bubbly but this day he was really, really different. It was actually quite scary and eerie to this day to think about it, for me." 1. Ms Arvidson recalled that as the accused was being escorted from the property by Sergeant Blanch he turned around and said, "[o]h well, looks like I'm going to gaol for the rest of my life." Police evidence Damien Tilley 1. The statement of Senior Constable Damien Tilley was tendered and became exhibit E. He participated in a walkthrough DVD on 5 April 2019 which became exhibit F. An automatic recording from his taser was also tendered and became exhibit G. His body worn camera recording was tendered and became exhibit H. 2. Senior Constable Tilley arrived at the premises around 3:30pm and saw Ms Scott and Ms Arvidson on the grass outside. He asked Ms Scott whether the accused was under the influence of drugs or alcohol and she said "no, he's just going crazy". As he approached the front window, he noticed that the left-hand side of the curtain rod had fallen down and a man was reattaching it. He could hear muffled swearing from inside the house. He knocked on the front window and asked who was inside. He heard a male voice respond, "[f]uck off pigs, go away." The male voice kept swearing and then said, "[f]uck off if you come in here I'm going to stab youse." Senior Constable Tilley asked if Eddie was inside and heard a second male voice that he could not make out clearly. The second male voice sounded "calm but urgent". He asked the accused to open the curtains so he could see that Eddie was okay. The curtains were then opened for about one second and Mr Tilley saw the accused standing behind Eddie with one arm around Eddie's neck and the other hand holding a knife between Eddie's eyes. He said that the accused looked him straight in the eyes and was "perfectly still" and "emotionless". 3. The curtains were then closed and he heard continuous swearing and banging from inside the house. It sounded like a struggle was happening and then Eddie said, "[y]ou stabbed me you cunt" and "go on, stab me again cunt". He then heard the accused say, "I'm going to" and "I'm going to watch you bleed out cunt". The next thing Mr Tilley heard was a "grunting, gurgling" sound. The officers decided to enter the house. 4. Senior Constable Chippendale banged on the door and shouted for the accused to open it. The accused opened the front door momentarily and then shut it. The officers then removed the screen door and tried to kick down the front door. Senior Constable Chippendale kicked the door between five and ten times, but it would not move and it appeared that someone was leaning on it from the inside. The accused then opened the door and stood in the doorway. Senior Constable Tilley pointed his taser at the accused (but did not engage it) and said, "get on your knees". The accused complied and Senior Constable Chippendale handcuffed him while he was lying on the ground. 5. The deceased was lying on the armrest of the lounge, slumped over with blood coming from his mouth and nose. The officers asked the accused where he had stabbed the deceased and he said, "[i]f you give me a cigarette I'll tell you where I stabbed him." The officers kept asking as they performed CPR on the deceased and the accused eventually said, "I stabbed him in the legs and the chest." Senior Constable Tilley could see a steak knife on the coffee table and no other weapons. 6. Senior Constable Tilley did not hear any conversations about money or debts. He did not see the accused drinking but only observed him for a couple of minutes while performing CPR. The accused was then removed from the premises by Sergeant Blanch. 7. Senior Constable Trevor Chippendale was not called as a witness, but his statement and walkthrough video of 6 April 2019 were tendered by consent (exhibits N and R). Those accounts accorded with the evidence of Senior Constable Tilley. He described hearing two male voices from inside the house and described them as "arguing" but not yelling. He saw both the accused and the deceased putting the curtain rod back up. He said they both seemed calm and were not talking or looking at the police. Senior Constable Chippendale then asked Eddie what was happening and Eddie said, "he's got a knife, that's what's fucking happening." When Senior Constable Chippendale handcuffed the accused, he could not smell alcohol and did not believe he was intoxicated. He described the accused as "calm". Scott Blanch 1. The statement of Sergeant Scott Blanch dated 5 April 2019 was tendered and became exhibit J. He is the officer in charge of the Eden Police Station and has worked there for 23 years. He was the third police officer to attend the scene and arrived just after Senior Constables Tilley and Chippendale had gained entry to the premises. 2. When Sergeant Blanch entered the house he observed the accused lying on the ground and attempting to roll around. He removed the accused from the premises and cautioned him. The accused replied, "I'm going on death row. I just stabbed him in the heart." The accused asked if he could have a cigarette before getting in the police truck. Sergeant Blanch agreed. While he was arranging this, Senior Constable Tilley ran up and said he needed to search the accused. After searching the accused, Senior Constable Tilley asked where the knife was and the accused told him "I got no blade on me… [it's] on the table there okay". The body worn camera footage from Senior Constable Tilley showed this interaction. The accused repeatedly asked to speak to his mother before leaving in the police truck. 3. The accused's brother came to speak to him and give him a cigarette. His brother said, "[y]ou need to get off the piss. You should be ashamed of yourself." The accused said, "[y]es brother I'm ashamed of what I have done. I'm going on death row. I just killed him." 4. Sergeant Blanch believed the accused was "well intoxicated" as he could smell alcohol and the accused was "sweating profusely", appeared "dishevelled" and was slurring his words. Sergeant Blanch acknowledged in cross-examination that he had frequently dealt with the accused, perhaps twice a month for 23 years, and he believed the accused always had a slurry voice and smelled of liquor "90 per cent of the time". He denied assuming that the accused was intoxicated on this occasion because of these previous interactions. Matthew O'Neill 1. Senior Constable Matthew O'Neill was the Custody Manager at Bega Police Station on 4 April 2019. He observed the accused to be "intoxicated" and "well affected" by alcohol when he arrived at Bega Police Station. He stated that the accused smelt strongly of alcohol and was slightly unsteady but did not need assistance to walk. He observed the slight unsteadiness while walking the accused to his cell over a distance of about 20 metres and believed it had disappeared a couple of hours later when the accused participated in the forensic procedure. 2. The accused told Senior Constable O'Neill that he had consumed two bottles of wine, although he did not say what type of wine or whether he had finished the bottles. The accused said that he had diabetes, epilepsy and paranoid schizophrenia and that he was not taking his medications. The accused had $20 in his wallet when he was arrested. 3. Senior Constable O'Neill did not observe anything unusual about the accused and said that he was mostly sleeping while at the police station. He described the accused as quiet but "clear and cogent" when he did speak. He believed the accused understood his questions. The accused declined to be interviewed and the audio recording of this became exhibit K. Daniel Morgan 1. Detective Senior Constable Daniel Morgan was the officer‑in‑charge of the investigation. A number of exhibits were tendered through him. 2. A summary of times from police records became exhibit L; a DVD of a forensic procedure with the accused on 5 April 2019 became exhibit M. Two photographs of the accused during that forensic procedure were tendered on behalf of the accused and became exhibit 1. 3. Detective Morgan conducted an investigative search at 3 Moorhead Street. An edited disc of that search on 5 April 2019 became exhibit O. He said he was looking for any remains of alcohol but did not search the wheelie bins outside. 4. He took a statement from Sandeep Sandeep, the Manager of the IGA store in Eden, who provided CCTV footage to the police. The receipts and photographs at the IGA on 4 April 2019 became exhibit P. The CCTV footage of the accused purchasing alcohol on the morning of 4 April 2019 became exhibit Q. The receipts confirmed that the deceased purchased a bottle of tawny port, a cask of wine, lemonade and cigarettes on 3 April and the accused purchased two bottles of tawny port and a cask of white wine on 4 April. Forensic evidence Gregory Moon 1. Detective Senior Sergeant Greg Moon was the Crime Scene Officer. He arrived at the scene early on 5 April 2019 and was also present for the autopsy. 2. Two bottles of tawny port bearing the accused's fingerprints were found; one in an esky box in the kitchen area and the other on the coffee table. Detective Moon believed both were empty but could not recall with any certainty. 3. An empty cask of wine and a glass with the deceased's fingerprints were also on the coffee table. Another photograph showed two McWilliams port bottles in an outside wheelie bin (exhibit U). No other alcohol was found in the premises. The deceased's wallet was found on the floor next to his feet. 4. Detective Moon believed based on the blood stain patterns that the deceased was either sitting on the couch when he was stabbed or was standing and sat on the couch shortly after being stabbed. The smudged stains were consistent with the deceased being moved by the police officers to administer CPR. All the injuries were consistent with the size and shape of the knife found on the coffee table. The knife itself contained blood matching the DNA profile of the deceased. Dr Rianie Janse Van Vuuren 1. The post-mortem report of the forensic pathologist, Dr Van Vuuren, dated 30 July 2019 with a wound diagram was tendered and became exhibit S. The toxicology report dated 30 April 2019 became exhibit T. 2. Dr Van Vuuren identified the direct cause of death as the stab wounds to the deceased's chest and leg. She identified a total of 31 stab wounds consisting of: five wounds on the upper left leg, perforating the left femoral artery; eleven on the upper right leg; one stab wound on the left anterior chest, extending through the left third rib and penetrating the left lung and pulmonary vein; three superficial stab wounds on the neck and chest; and a cluster of seven deep and four superficial stab wounds on the right lower chest. Dr Van Vuuren said that either of the wounds that penetrated the left lung and femoral artery could have killed the deceased and it was not possible to determine which was the cause of death. 3. The deceased had a 7mm superficial incision on his right middle finger consistent with a recent cut from a sharp object such as a knife. The toxicology report showed acute alcohol intoxication (a blood alcohol reading of 0.294) and the presence of cannabis. Other exhibits 1. Bank statements of the accused and the deceased were tendered (exhibit W). The deceased's records indicated that he had withdrawn $700 on 3 April 2019 and had a balance of $607 in his account. The accused's Commonwealth Bank records indicated that he received a pension payment of $379 on 30 March 2019 and withdrew $381 the next day in Bega. A direct debit of $50 from Origin Electricity resulted in an overdraft of $49. His next pension payment was on 6 April 2019 after he was arrested. The accused's Westpac Bank account was less frequently used and had no regular credits. 2. Photographs of the property and clothing of the deceased and the accused were also tendered (exhibit X). The accused's medical history (Exhibit V) 1. A summary of the accused's medical records with three annexures was tendered, as well as an agreed chronology setting out the accused's interactions with Community Corrections and his post-arrest mental health reviews. Those documents set out a lengthy history dating back to 2006. Given the issues raised by the partial defence of substantial impairment in this matter, I propose to set out that history in some detail. 2. On 7 June 2006, Mr Scott was admitted to Bega hospital following a seizure. He expressed paranoid ideas and reported auditory and visual hallucinations. He reported drinking a large amount of alcohol the previous weekend. He was diagnosed with alcohol withdrawal, seizures and alcohol abuse and was discharged against medical advice the following day. 3. On 15 June 2007, Mr Scott was take to Bega hospital after he was observed to collapse and convulse on the floor of the shops for about two minutes. He reported drinking two to three litres of wine per day and discharged himself against medical advice. 4. On 8 February 2008, Mr Scott was taken by ambulance and admitted to Pambula Hospital after an observer stated he had two seizures approximately five minutes apart. 5. On 21 July 2008, Mr Scott was taken by ambulance and admitted to Pambula Hospital after jumping in front of a motor vehicle moving at 30km per hour. Mr Scott said that he had been drinking heavily and had a seizure the night before. He also reported derogatory auditory hallucinations, paranoid delusions and suicidal thoughts due to his psychotic symptoms. 6. On 22 July 2008, Mr Scott was detained in a mental health facility under the Mental Health Act 2007 (NSW). The certifying psychiatrist noted psychosis and alcohol dependence as well as persecutory delusions, suicidal ideation and auditory hallucinations. 7. Mr Scott was transferred to an acute psychiatric ward at Goulburn Hospital. He was diagnosed with schizophrenia and alcohol dependence and was prescribed Olanzapine, which improved his psychotic symptoms. He was discharged and prescribed 15mg Olanzapine per day. 8. On 15 October 2008, Mr Scott was brought into Pambula Hospital by his mental healthcare worker for alcohol detoxification. He reported auditory hallucinations and said he had been drinking heavily for the past two to three months (variously reported as 10 litres of wine per day; two casks of wine per day; and four litres of wine per day). 9. On 16 October 2008, Mr Scott was detained under the Mental Health Act. He was treated with an increased dose of Olanzapine and progressively improved. He was discharged on 23 October 2008 and prescribed 15mg Olanzapine per day. He denied experiencing psychotic symptoms and declined rehabilitation services. 10. On 24 February 2009, Mr Scott was taken by ambulance to Pambula Hospital after experiencing a seizure lasting ten minutes. He was discharged at 3:45pm but returned by ambulance at 10:00pm following another seizure. He reported drinking heavily, around 40 standard drinks per day. He was discharged the next day. 11. On 19 October 2009, Mr Scott was taken by ambulance to Pambula Hospital after reporting that he hit his head on the concrete during a fit. He reported drinking heavily for the previous four days. 12. On 17 November 2009, Mr Scott was taken by ambulance to Pambula Hospital following a seizure. He reported drinking the night before and discharged himself against medical advice. 13. On 23 November 2009, Mr Scott was taken by ambulance to hospital twice after two observed seizures. He was discharged the next day. 14. On 29 December 2009, Mr Scott was taken by ambulance to Pambula Hospital after observers reported multiple seizures. Mr Scott left hospital without informing staff. 15. On 31 December 2009, Mr Scott was taken by ambulance and admitted to Pambula Hospital after a 20 minute seizure. He was diagnosed with epilepsy and reported having drunk four litres of wine per day for several months. After absconding Mr Scott was detained under the Mental Health Act for 24 hours. He was diagnosed with alcohol misuse, seizures due to alcohol withdrawal and schizophrenia. He was discharged the next day and prescribed 15mg Olanzapine daily. 16. On 13 January 2010, Mr Scott was admitted to Pambula hospital for detox services and reported drinking three to four litres of wine per day. His self-care had deteriorated over the past six months and his compliance with Olanzapine was intermittent. He complained of disturbing auditory hallucinations. Mr Scott was discharged against advice five days later with a prescription for Olanzapine. 17. On 4 April 2010, Mr Scott was taken by ambulance to Bega Hospital after a seizure. He reported drinking all weekend and not sleeping for 24 hours. 18. On 30 December 2010, Mr Scott was taken by ambulance to Pambula Hospital after reporting auditory hallucinations. He left the hospital without consulting a doctor. 19. On 30 March 2011, Mr Scott was taken by ambulance to Pambula Hospital after a seizure. He left without being seen by a doctor. 20. On 4 October 2011, Mr Scott was taken by ambulance and admitted to a psychiatric ward at Bega Hospital due to a psychotic episode. He reported auditory hallucinations. He believed that an aerial had been implanted into his tongue by two neighbours, who were using a remote control to move his tongue. He had bitten his tongue numerous times in an attempt to remove the aerial. He was unable to swallow food and his speech was impaired. Observers reported he had not drunk alcohol for three days. Mr Scott was detained under the Mental Health Act. He was diagnosed with schizophrenia and alcohol dependence. Liver damage consistent with alcohol toxicity was noted. Mr Scott was treated with 15mg Olanzapine per day, 20mg Flupenthixol fortnightly and Acamprosate 666mg twice per day. Mr Scott was discharged on 7 November 2011 and a six-month community treatment order was made by the Mental Health Review Tribunal. 21. On 30 December 2011, Mr Scott was admitted to Pambula hospital after a three to four-minute seizure. He reported that his last drink had been the day before but that he had been on a 10- to 14-day bender. He was discharged the next day but returned to hospital by ambulance that same day after tripping down some stairs and hitting his head on concrete. An observer reported that he was losing his mind, seeing things and trying to run away from the voices. He was discharged the next day. 22. On 11 February 2012, Mr Scott was taken by ambulance and admitted to Bega Hospital after a three-minute seizure due to alcohol withdrawal. He was prescribed Olanzapine and detained under the Mental Health Act. An order was also sought under the Inebriates Act 1912 (NSW) on the basis that Mr Scott's drinking had become life threatening. He had alcoholic seizures and a high risk of spontaneous bleeding due to alcohol induced thrombocytopaenia (low platelet count). On 21 February 2012, a six-month inebriate control order was made by the Bega Local Court. 23. On 23 February 2012, Mr Scott was discharged from Bega Hospital and admitted to a psychiatric hospital in Goulburn. He was diagnosed with alcohol dependence and schizophrenia. He was treated with 10mg Olazapine, 45mg Mirtazapine and 200mg disulfiram per day and 40mg Flupenthixol fortnightly. It was noted that Mr Scott maintained remission from positive signs of schizophrenia and tolerated a reduction in his Olanzapine. Mr Scott was discharged on 11 July 2012 due to a refusal to participate in rehabilitation activities. 24. On 28 October 2012, Mr Scott was taken by ambulance to Bega Hospital after a seizure lasting 30 to 60 seconds in which he fell backwards onto a concrete landing. He had not drunk alcohol for three days. 25. On 15 February 2013, Mr Scott was taken by ambulance to Bega Hospital following a seizure. He was found to have a blood alcohol of 0.332. 26. Mr Scott was taken into custody on 9 May 2013. On reception, Mr Scott reported first drinking alcohol at age 12 and said that he was currently drinking a cask a day. His medications were recorded as 5mg Olanzapine and 30mg Mirtazapine per day. 27. On 16 April 2014, Mr Scott was taken by ambulance and admitted to Pambula Hospital following a seizure. He said that he had not taken his schizophrenia medication for three weeks and had been drinking three to four litres of alcohol per day, although he had not drunk that morning. He was discharged the next day and prescribed 15mg Olanzapine daily. 28. Mr Scott was taken into custody on 5 June 2014 and reported drinking two litres of wine per "session" and last consuming alcohol ten days prior. He was placed in a detoxification cell. 29. On 9 June 2017, Mr Scott was admitted to South East Regional Hospital due to elevated blood glucose. He was diagnosed with type 2 diabetes and treated with insulin. He was discharged 11 days later and prescribed Olanzapine and Mirtazapine. 30. On 16 January 2018, Mr Scott was taken by ambulance and admitted to South East Regional Hospital due to seizures. He requested alcohol detox services and was diagnosed with alcohol intoxication and hyperglycaemia. He discharged himself the next day against medical advice. 31. On 2 June 2018, Mr Scott was taken by ambulance to South East Regional Hospital after he reported an impending epileptic fit and an observer reported he had consumed three plastic bottles of Moselle that morning. On 15 September 2018, Mr Scott was taken by ambulance to South East Regional Hospital. An observer reported he had fallen and struck his face on the edge of a fireplace, consumed a large amount of alcohol that day and been non-compliant with his medication for the past 2 weeks. 32. On 22 November 2018 Mr Scott appeared sober to Community Corrections. He said he had not been drinking since being put on an Intensive Correction Order in late September 2018. 33. On 22 November 2018, Mr Scott was admitted to South East Regional Hospital and diagnosed with a diverticular abscess. He was transferred to Canberra Hospital for surgery. It was noted that his medical history included: schizophrenia, which was presently well controlled; previous alcohol dependence/abuse but nil alcohol for two months; and no seizures since his last attendance and an increase in anticonvulsants. His current medications included 15mg Olanzapine and 30mg Mirtazapine per day. He was discharged on 3 December 2018. 34. On 16 January 2019, Mr Scott was admitted to South East Regional Hospital for a colonoscopy. The procedure did not proceed due to Mr Scott eating beforehand. 35. On 29 January 2019 Community Corrections observed Mr Scott to be intoxicated. On 31 January 2019 he failed to report to Community Corrections. 36. On 9 February 2019, Mr Scott was admitted to South East Regional Hospital after it was reported that he had been unwell and had fallen over the previous day. He was unable to focus, his eyes were glazed over, and he was grinding his teeth. Mr Scott complained of "very evil thoughts" but was not willing to discuss them. He reported that he had been binge drinking, including a cask of wine the day before, and was diagnosed with alcohol withdrawal syndrome. While in hospital he was also diagnosed with a recurrence of intra-abdominal abscesses and was transferred to Canberra Hospital. He was discharged on 26 February 2019. 37. The accused reported to Community Corrections on 4 March 2019 and advised that he had not been drinking since his discharge from hospital. 38. On 19 March 2019, the accused reported to Community Corrections and appeared to be engaging well, said he had maintained his sobriety but became stressed when people owed him money. He decided to stop lending money to other people. 39. On 25 March 2019, Mr Scott was taken by ambulance to South East Regional Hospital after Mr Scott said he was about to have a fit. It was reported that he had been drinking heavily for the past week, including three-quarters of a cask of wine and a bottle of port that day. It was also reported that he had been non-compliant with his medication for a week and had fallen in the bathroom two days ago and hit his head. Mr Scott had a small laceration at the base of his skull and haematoma. 40. On 26 March 2019, Mr Scott was taken to hospital after he was observed to be intoxicated, staggering and vomiting heavily in a park in Bega. 41. On 1 April 2019, the accused withdrew his entire pension payment of $381 at Bega. 42. On 2 April 2019, the accused reported to Community Corrections (after being driven from his mother's house by John Stewart). He recorded a negative breath-test for alcohol but said that he had only abstained for the past three days and was not taking his medication. 43. As at 4 April 2019, Mr Scott's general practitioner recorded his current medications as including 15mg Olanzapine and 30mg Mirtazapine per day, last prescribed on 20 February 2018. After his arrest on 4 April 2019, he was treated by Justice Health. 44. On 5 April 2019 (following his arrest for the murder of Mr Carter), the accused was treated for alcohol withdrawal at South Coast Correctional Centre. The notes recorded that the accused variously reported drinking: four bottles of wine every day; two bottles of wine most days and four bottles on Thursdays; three litres of wine mixed with other alcohol; and that he drank to wipe himself out completely. Mr Scott was observed to be "guarded", unable to initiate conversation, paranoid, looking around and likely non-compliant with his medication as he could not remember taking it. 45. On 6 April 2019, the accused was noted to be guarded and agitated. On 8 April 2019, the accused was observed to have a flat affect, blunt answers and no eye contact unless asked. He was making low and deep moaning noises without distress. A mental health assessment on 9 April 2019 recorded that the accused had schizophrenia and was "acutely unwell". 46. A mental health assessment on 14 April 2019 reported that the accused was "irritable, guarded [and] hypervigilant". He had a blunted affect and brief, delayed responses to questions. When asked about his sister, who he had mentioned five minutes ago, he responded, "you're real cluey". The accused was noted to have persecutory delusions and paranoia about his family. On 23 April 2019, the accused's mental state had improved and he was less "perplexed" and vague. The accused's evidence 1. Mr Scott gave evidence. I propose to summarise that evidence in some detail as he is the only witness to what occurred inside the premises and thus is an important witness in his trial. The days leading up to 4 April 2019 1. Mr Scott recalled his trip to Bega with Mr Stewart on 2 April 2019 but did not remember how long he was at the parole office or whether he did a breath test. He remembered telling the parole officer that he wanted to stop drinking but he did not want to go to rehab and that he wanted to stop seeing the parole officers. 2. He recalled Uncle Kevin picking him up from the park on 3 April 2019 but did not recall if he was drinking on that day. He remembered having a conversation with Uncle Kevin in which he asked whether he was on a boat. He did not know why he asked that question but confirmed that he thought at the time that he was on a boat. He described the events of that day as "like everybody is saying I jumped in the car, went to Eden, pulled up at Pambula bottlo, I got a bottle of wine, went to my mum's place and that was it." He said that he remembered "bits and pieces" of those events, including that Uncle Kevin picked him up, drove him to Eden and "we took off". He also remembered stopping at Pambula and buying a bottle of port. Mr Scott did not recall Uncle Kevin's evidence that he had a bottle of wine when he got in the car but accepted that it could be true. He could not remember if he had been drinking that morning or why he wanted to go and see his mother. Mr Scott remembered arriving at his mother's house with Uncle Kevin. 3. On the night of 3 April, he stayed at his mother's house. He recalled that the deceased was present as well. The deceased had bought a bottle of port for the accused and the accused had the bottle he bought at Pambula. He consumed alcohol that night but did not have any fights with Ms Scott or the deceased. He said that he would not have drunk all the alcohol he had but that he was only drinking port. He said that once he started drinking a particular drink he would not change drinks, and he did not consume any of the Moselle that the deceased brought. He stated that by the end of the day on 3 April 2019 he was drunk. 4. Mr Scott remembered that on 3 April Stacey Arvidson came over to fix the Bluetooth speaker but did not recall Mr Carter shouting them pizza. He did not know if Mr Carter had cash on him that day and did not remember if he spoke to Mr Carter about owing him money on that day. He could not recall on which day he had lent Mr Carter money and when asked if they had a conversation about it he said "[n]ot really". He said he did not ask Mr Carter for the money on 3 April 2019 because he thought he did not have to, and he thought Mr Carter knew he owed the money. The events on 4 April 2019 prior to the stabbing 1. The accused recalled waking up at his mother's house on 4 April 2019 and going to the IGA with Bradley Troy between 11:30am and 12:00pm. He had viewed the CCTV from the IGA and confirmed that the port was for him and the Moselle was for Ms Scott and the deceased. When he returned to his mother's house, he drank the port and Ms Scott and the deceased drank the Moselle. He said that the bottles of port in the esky box and on the coffee table were probably his. 2. Mr Scott said he drank two bottles of wine and was feeling "very tired", "sleepy" and "probably a little bit over half" drunk, meaning halfway between not very drunk and extremely drunk. In re-examination Mr Scott said that this meant he "wasn't there, wasn't halfway there… wasn't all there." He confirmed that when he was half drunk he could speak, walk, eat, pick things up and put them down and knew what he was doing. The accused's recollection of the stabbing 1. Mr Scott stated that they were all listening to music (the accused, his mother and the deceased) but could not recall what they were talking about. Mr Scott said they were all "[j]ust having a good time" and he could not recall what happened between them all having a good time and him stabbing Mr Carter. 2. He did not remember holding a knife to his mother's throat before stabbing Mr Carter. He did not recall saying, "I'm sick of this" or "where do you want it". He did remember his mother talking to him and trying to calm him down. He did not recall threatening his mother with a knife the second time or his mother saying "[w]hy are you doing this for? You know I'm your mum." In cross-examination he did recall the second occasion but did not know why he did this. He confirmed that his mother did not owe him any money. 3. When asked what led to him stabbing the deceased, the accused said, "it was over money". He went on to say, "[m]oney he owed me, money he didn't want to pay me, my money that he owed me." He said that he lent the deceased money one or two weeks before he died and that it was "easily over" $100 or $200. Mr Scott said that he did not lend the money in cash but he bought things for the deceased such as alcohol, cigarettes and food. Mr Scott said that no one else was present when he bought these items. 4. Mr Scott said that he told Mr Carter, in the presence of Ms Scott, "I want my money that I gave you". Mr Carter did not reply and the accused recalled asking him three or four more times. He did not know whether Mr Carter had any money on him that day. 5. Mr Scott denied making up an argument about money as an explanation for stabbing Mr Carter. When asked whether he meant to hurt or kill Mr Carter the accused said "[n]o, I just meant to spook him." 6. Mr Scott recalled Mr Carter rushing to help Ms Scott after he threatened her with a knife the second time but he did not remember his mother running out of the house shortly after. He did not know if he turned the knife on the deceased because he came to help Ms Scott but he was certain that when he threatened Mr Carter with the knife it did have something to do with money. He could not explain why he would have threatened his mother with the knife if the dispute was about money. It was put to Mr Scott that the argument with the deceased had nothing to do with money and he denied that. 7. Mr Scott recalled being inside the house with Mr Carter and remembered wanting his mother to come back inside so that he could sit down and talk about the money. Mr Scott did not remember the police being outside the house but did recall "a little bit" of being arrested and walking to the police truck. 8. Although Mr Scott could not recall what happened immediately before he stabbed Mr Carter, in cross-examination he recalled stabbing him and stated that he had a knife from the kitchen and Mr Carter was sitting on the couch when he stabbed him in the chest and leg. 9. Mr Scott believed he had only stabbed Mr Carter in one leg and did not recall whether he stabbed Mr Carter in the back of the leg or whether Mr Carter put his hand up to stop him. He could not remember how many times he stabbed Mr Carter and did not recall seeing blood come out of Mr Carter's mouth. He said that Mr Carter did not say anything after he stabbed him. It was put to Mr Scott that Mr Carter said "you stabbed me, you cunt" or words to that effect but Mr Scott could not remember. 10. Mr Scott could not recall holding the knife up to Mr Carter's face. He believed that he probably told the police to "fuck off" although he could not actually remember. He did not remember seeing his mother or Ms Arvidson come to the front window when he and Mr Carter were inside. He could not recall asking Ms Arvidson to get his mother but did recall wanting his mother to come back into the house because he thought that would help the situation. 11. Mr Scott said he did not recall any other thoughts or feelings that he had while inside the house with Mr Carter, other than that Mr Carter owed him money. 12. He later confirmed that he did not remember much from that day. He did not know if that was because he had been drinking the night before. The arrival of police 1. Mr Scott did not recall saying anything about Mr Carter "drowning in his own blood" or seeing the police at the window when he and Mr Carter were inside the house. He did not remember the police knocking on the window or him closing the curtain. He did not recall the police banging on the door or a police officer saying, "Warren, what's going on?". He thought he opened the door when the police were there but only because he heard that in the evidence. He did not recall leaning against the front door to prevent police from entering or subsequently opening the door. He did not recall police entering or telling him to get on the ground. 2. Mr Scott recalled being handcuffed in the lounge room but did not recall being asked where he stabbed Mr Carter or replying, "give me a smoke and I'll tell you" or eventually telling police where he stabbed Mr Carter. He did not recall saying "I'm going on death row" or asking to speak to his mother. 3. Mr Scott confirmed that he knew stabbing someone in the leg or chest could kill them or really seriously harm them but denied intending to do anything more than scare Mr Carter. 4. Mr Scott remembered saying "[l]ooks like I'm going to gaol for the rest of my life now" and said that he thought that because he had killed Eddie. When asked why he thought he had killed Eddie when he had only meant to spook him, the accused said, "I don't know, it just seemed like that". Medication 1. In his examination in chief, Mr Scott said that he was aware that as at 4 April 2019 he had been prescribed medication that he was supposed to take daily. He did not know what that medication was and he was not taking it on the day that he stabbed the deceased. He said that he had not been taking his prescribed medication for "a few days" before the stabbing. He knew that when he drank alcohol he did not take his medication. 2. The accused described how the combination of medication and alcohol made him more drunk and made him "fall around and hurt [himself]". He said that the medication made him feel sleepy and when he did not take it he felt more alert and found it harder to sleep. Mr Scott confirmed that he sometimes heard voices when he stopped taking his medication and that this happened every time he stopped taking it. He remembered telling someone at Bega Hospital in February 2019 that he was having "evil thoughts". He described these evil thoughts as "hear[ing] other people talk… like the voices sort of go off a little bit, but I can't really understand what they're saying." He confirmed that the voices were not nice, but he could not work out the words. Alcohol consumption 1. Mr Scott said that apart from the period in February 2019 when he was hospitalised, he was drinking "pretty much throughout 2019". He confirmed that when he went without alcohol, he would abstain for a period of four to six months but could not remember the last time, prior to his arrest, that he went without alcohol. 2. He recalled visiting his parole officer during that period but did not remember being breath-tested. He remembered talking to the parole officer about drinking alcohol and recalled going to Bega Hospital and staying for about ten days. He said that he had been drinking a lot before he went into hospital and recalled telling someone at the hospital that he drank a cask of wine a day or had drunk a cask of wine the day before being admitted to hospital. 3. Mr Scott confirmed that he detoxed in Bega Hospital in February 2019. He said that when he was coming down off alcohol he experienced seizures and that this would happen after drinking for a week and then stopping. He confirmed that the staff at the hospital talked to him about not drinking anymore and that the parole service wanted him to see a drug and alcohol counsellor, but he did not go. He said that he wanted to stop drinking but as soon as he left hospital he went straight back to drinking alcohol. When asked why he started drinking again as soon as he was discharged, he said "it's what I did do. I drink. I can't help drinking." Mr Scott agreed that when he drank a lot he sometimes did not remember what happened. 4. Mr Scott maintained that he did not like to mix drinks once he had started drinking and said that "[i]f I started on port I'd just continue drinking port. I don't swap drinks". When asked why he did not swap drinks he said, "[b]ecause I started on what I started on, that's why". He said that if he ran out of port, he would just ask his mother to buy him another bottle. He said that a bottle of port only cost $7 and it was not hard to find that amount of money. When asked if mixing drinks made him feel sick or if there was a reason he did not switch drinks he said he did not know. He said that he had tried white wine and cask wine but preferred red wine or port because "a bottle can last for a day, two days. You can drink two bottles in two days. Two bottles in a day." 5. Mr Scott was aware that he had been treated for alcohol withdrawal after he was arrested and believed he had been given tablets for this. He did not remember talking to someone at the gaol about how much he usually drank or telling someone that he usually drank four bottles of wine per day. He denied drinking that amount and stated that at that time he drank one and half to two bottles of wine per day. He could not remember if he later told someone at the gaol that he drank two bottles of wine per day although he confirmed that that would have been about right. He did not remember telling someone at the gaol that he had drunk four bottles of wine on the day of the stabbing and he did not think that was accurate. He did not recall a tele-health conference on 10 April 2019 in which he told someone that he drank three litres of wine per day mixed with some other alcohol and that he drank to "wipe [himself] out". 6. He agreed that if he had been drinking the night before he would get up and drink "pretty soon" in the morning and would drink until he went to bed the next night. He said that drinking in the morning made him tired and sleepy for the rest of the day. 7. When asked how he was so sure that he only drank one and a half or two bottles on the day he stabbed Mr Carter the accused said, "that is how much I drink before I go to sleep". He agreed that he had drunk more than one and half bottles in a day before and had on occasion drunk three-quarters of a cask of wine. He confirmed that he drank different amounts each day and said that it depended on what time he started drinking and what kind of alcohol he was drinking. He explained that cask wine has an alcohol content of 9.5% and bottled wine (port) has an alcohol content of 18%. He did not recall exactly how much he drank on 4 April 2019. 8. In re-examination Mr Scott agreed that he found it hard to remember things even when he was not drinking and that that had been the case since he was young. In relation to his evidence that he was drinking all throughout 2019 apart from when he was in hospital, Mr Scott said that he did not have an actual recollection of that, but he thought he was drinking "pretty heavy". He could not remember being in hospital in November 2018 but did recall being on an intensive correction order (ICO). He did not think that he stopped drinking when he was put on an ICO but could not remember. Mr Scott did not remember saying on 3 January 2019 that he had remained sober and not touched any alcohol over the festive season or saying on 17 January 2019 that he had not consumed any alcohol and had no other concerns. He did not remember anything that he told Community Corrections and did not remember his parole officers in Bega, Mr Dobbin and Ms Dragosevic. He could not recall speaking to either of those people. Speaking with psychiatrists 1. Mr Scott recalled speaking to psychologists and psychiatrists while in gaol and said that he told the truth when interviewed. He did not recall telling one of the doctors that the amount Mr Carter owed him was $300 or $400 (rather than $100 or $200) and said that he did not know the exact amount Mr Carter owed him. He could not recall seeing Dr Eagle specifically or seeing any female doctor. Expert evidence Dr Susan Pulman 1. Dr Pulman is a forensic psychologist and clinical neuropsychologist. She was not required for cross-examination. Her redacted report dated 20 September 2020 was tendered and became exhibit 2. 2. Dr Pulman assessed the accused on 28 July 2021. She noted that he was guarded and provided minimal responses to her questions. He became irritable and increasingly agitated when asked to repeat his response and at times he declined to discuss issues around his family history, alcohol use and mental health. She noted that "negative symptoms of schizophrenia were evident including reduced motivation and apathy". 3. With respect to Mr Scott's personal background Dr Pulman noted that he was born in Victoria as the only child of his parents' union. He has two half siblings and has never met his father. He denied any history of abuse either physical, sexual or emotional. He also said that his mother used to "drink a lot". 4. He reported that he used to "go walkabout during high school" and frequently got into trouble. He was placed in a special class but left halfway through Year 8. He did not have a history of any employment after leaving school. 5. Dr Pulman noted that Mr Scott's alcohol and substance abuse started with "on and off" marijuana use when he was about 12 or 13 years old and drinking wine when he was about 14 years old. By the time he was 16 years of age Mr Scott reported drinking alcohol on a daily basis and described "alcohol as the problem". 6. With respect to Mr Scott's medical and mental health history, Dr Pulman noted his extensive history of schizophrenia, alcohol abuse, admissions to hospital due to seizures and alcohol withdrawal and his denial of any family mental health history. 7. Dr Pulman administered the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV), Logical Memory I and II from the Wechsler Memory Scale – Fourth Edition (WMS-IV), California Verbal Learning Test - Second Edition (CVLT-II), Test of Memory Malingering, Rey Complex Figure Test, Controlled Oral Word Association Test (COWAT), and Depression Anxiety Stress Scale (DASS21) in conducing neuropsychological assessment of Mr Scott. In her clinical opinion she stated the following: "The results of current neuropsychological assessment indicate Mr Scott's level of intellectual functioning falls within the Extremely Low range and at the 1st percentile consistent with a mild intellectual disability. His verbal skills fall within the Extremely Low range however his history of truancy and minimal engagement in his schooling are also likely contributing factors to his reduced abilities. His verbal memory was also poor falling within the Extremely Low to Borderline ranges commensurate with his level of intellectual functioning. His performance on tests of executive functioning was also commensurate with his level of intellectual functioning." 1. Dr Pulman also opined that "it is difficult to determine the extent to which his history of alcohol abuse may have contributed to his current level of cognitive functioning" in circumstances where there were no significant disparities between any aspects of Mr Scott's cognitive abilities. Dr Kerri Eagle 1. Dr Kerri Eagle, forensic psychiatrist, was called as an expert witness for the Crown. She had provided two reports dated 27 January 2021 and 21 May 2021. She interviewed the accused for one hour on 3 December 2020. 2. In her first report she noted that Mr Scott said he had been diagnosed with paranoid schizophrenia and told Dr Eagle that he sometimes experienced voices but had not experienced them recently. He described hearing conversations where he could not identify the voices. He sometimes thought they were real and sometimes did not. Mr Scott said he felt paranoid "a lot" and had most recently heard voices on the morning of the interview. 3. Mr Scott told Dr Eagle that he had been on the same tablets for years and that he did not take them when he was drinking. He said that he would stop taking his medication for about one week at a time. He did not describe any stressors at the time of the offence and said he had been getting on with everyone. 4. In relation to the offence, Mr Scott told Dr Eagle that it was "all over money, he owed me money. 400 bucks… [from] cigarettes, grog, drugs, food." Mr Scott said there was no argument and "it just happened". Mr Scott said he was having a "bad day" and was "a little bit" angry. He said he could not remember much as it was nearly two years ago. 5. Dr Eagle noted that the accused told Dr Allnutt that at the time leading up to the offence he was hearing voices but could not make out what they said and that the accused believed his mother and the deceased were talking about him when he went for a walk. 6. Dr Eagle's diagnosis was that the accused's history and presentation was consistent with schizophrenia and that he had described "persistent attenuated symptoms of psychosis, specifically intermittent auditory hallucinations with retained insight". Dr Eagle believed this reflected inadequate antipsychotic treatment. She noted that the clinical records indicated "persecutory delusions, referential ideas and auditory hallucinations… complicated by non-compliance with treatment and alcohol dependence". Dr Eagle observed that relapses appeared to have been in response to excessive alcohol consumption and intoxication. Dr Eagle also noted a mild intellectual disability and severe alcohol use disorder. 7. In relation to the partial defence of substantial impairment, Dr Eagle opined that: "[at the time of the offence] Mr Scott was likely experiencing a deterioration in his mental state due to non-compliance with medication and excessive consumption of alcohol that potentially gave rise to an abnormality of the mind… Mr Scott's mental state and behaviour does appear, for the reasons described above, to have been significantly, if not predominantly, [a]ffected by alcohol intoxication at the material time. Given the absence of any specific signs of psychosis operating on Mr Scott's motivation or behaviour at the time of the Index Offence, if it were not for the level of alcohol intoxication experienced by Mr Scott, it would seem unlikely that he would have engaged in the assault on the deceased." (emphasis added) 1. Dr Eagle provided a second report of 21 May 2021 in which she responded to Dr Nielssen's conclusions and stated that: "I remain of the view… [that] there did not appear to be any specific signs or symptoms of psychosis operating on Mr Scott's motivation or behaviour at the time of the Index Offence and Mr Scott has consistently provided a rational explanation for the assault. Alcohol intoxication results in disinhibition, increased emotional lability, reduced self-control and impaired judgment. I remain of the view that Mr Scott was likely experiencing a deterioration in his mental state due to his chronic psychotic illness and the effect of alcohol intoxication on that illness, but that his behaviour at the time of the offending (including his level of control, judgment and perception) would certainly have been significantly affected by his apparent level of alcohol intoxication." (emphasis added) 1. Dr Eagle gave evidence and was cross-examined. She noted that the accused's evidence at trial was reasonably consistent with the version given to her and that the accused had difficulty remembering aspects of the offence. 2. Dr Eagle stated that her opinion was based on the assumption that the accused had been consuming alcohol for the majority of the day on most days in the period leading up to the offence and that he normally consumed three to four litres of wine per day. She noted that the accused had stated that he was drunk, and an observer described alcohol on his breath. Dr Eagle believed that the accused would have been relatively tolerant of alcohol but stated that the amount he consumed would still have had a significant effect on his ability to reason, his judgment, behaviour, disinhibition and levels of self-control. 3. In relation to the effects of alcohol on the accused, Dr Eagle noted that the accused was capable of responding to basic directions, telling police officers where he had stabbed the deceased and shutting the curtains to prevent police from looking into the house. Dr Eagle said this suggested that the accused was able to make decisions and be aware of his behaviour. 4. As to the accused's explanation for the offence, Dr Eagle stated that the accused's belief about money was highly subjective and possibly a post-offence rationalisation. 5. In cross-examination Dr Eagle accepted that schizophrenia could cause disinhibition, increased emotional lability, reduced self-control, impaired judgment and capacity to reason and an impaired capacity to understand events. Dr Eagle accepted that a person with schizophrenia could exhibit all of those symptoms without consuming any alcohol, depending on the nature of the relapse. 6. Ms Avenell asked Dr Eagle to consider a situation in which a patient experienced a psychotic episode as a result of alcohol consumption and non-compliance with medication and then continued to exhibit symptoms in a controlled environment after alcohol was removed and medication reinstated. Dr Eagle accepted in these circumstances that it was likely that the psychosis related to mental illness rather than alcohol consumption. Dr Eagle then clarified her evidence to state that she believed psychosis caused by alcohol consumption could persist once consumption ceased. She could not place a timeframe on how long symptoms could be expected to last and said that in some cases people never recover from positive symptoms of psychosis. 7. In relation to Mr Scott specifically, Dr Eagle accepted that he continued to exhibit signs of psychosis for at least 10 days after his arrest but considered that his ability to control his behaviour, exercise judgment and take his medication in custody was significantly improved once the effects of alcohol wore off. She accepted that his paranoid delusions about his family members on 14 April 2019 suggested that he may have had other symptoms on 4 April 2019 related to his psychotic illness. 8. In relation to the assumptions in her report, Dr Eagle stated that she did not know exactly how long the accused had been non-compliant with his medication but assumed, since he suggested he had been drinking for a number of weeks before the offence, that he could have been non-compliant during that period. She accepted that non-compliance alone, without alcohol consumption, could cause a deterioration over weeks or months leading to impaired judgment, function and capacity to reason. 9. In relation to the "excessive consumption of alcohol" referred to in her report, Dr Eagle confirmed that she was referring to his daily consumption in the entire period leading up to 4 April 2019, which she understood to be a period of a few weeks. Dr Eagle believed that it was a combination of his intoxication in the period before the offence and at the time of the offence that caused a deterioration in his mental state. It was put to Dr Eagle that the accused had returned a negative breath test on 2 April 2019 and was observed to be sober on 19 March 2019. She acknowledged that this did conflict with her understanding of the accused's drinking pattern. 10. Dr Eagle confirmed that the basis of her opinion was the lack of positive symptoms of psychosis and the rational explanation given by the accused. This included a lack of reported persecutory beliefs and no evidence of responding to unseen stimuli, as previously observed in the accused's behaviour, although Dr Eagle acknowledged that a person can display different symptoms to previous relapses. She also acknowledged that the "rational explanation" provided by the accused was disproportionate to the situation but inconsistent with a delusion. She suggested that the accused's explanation was either post-offence rationalisation or a misinterpretation of the situation reflecting impaired reasoning. She confirmed that impaired reasoning and a propensity to misinterpret situations could be caused by schizophrenia. 11. Dr Eagle accepted that the accused asking if he was on a boat could be a symptom of psychosis or intoxication. She also accepted that Mr Dixon's observations of the accused being different to the many times he had been observed drunk was consistent with psychosis rather than intoxication. Dr Eagle also acknowledged that failing to lock up his apartment, which he usually remembered when drunk, could reflect disorganisation attributable to schizophrenia. 12. In relation to the accused threatening his mother with a knife, Dr Eagle believed this was largely unexplained but could indicate a symptom of psychosis such as an unexpressed persecutory belief. As to whether intoxication could have caused the accused to threaten his mother, Dr Eagle said it was difficult to determine but said that alcohol could cause people to be provoked by relatively minor things. 13. The observations of Jessie Scott and Stacey Arvidson were put to Dr Eagle and she accepted that his demeanour during the offence could indicate psychosis or internal preoccupation with psychotic thoughts. She went on to say that in her experience a person with internal preoccupations due to psychosis was more like to have reduced self-control if they were intoxicated but that it was difficult to separate the effects. She accepted that a misinterpretation or a disproportionate response could be caused by schizophrenia. 14. As to the effects of alcohol on the accused, Dr Eagle considered that although the effects varied considerably between people, the accused had significantly exceeded the threshold where alcohol would be expected to cause impairment of faculties. She stated that even where a person has built up a tolerance there is still a level of impairment associated with significant consumption. Dr Eagle said that the accused's self-reported intoxication suggested his faculties were impaired due to alcohol. 15. Dr Eagle noted that intoxication could impact memory and the accused could have experienced paranoid delusions that he could not remember. As to whether people generally recall psychotic episodes, Dr Eagle said that severe thought disorders with significant disorganisation could cause difficulty remembering but in other cases people could remember delusions and recalled them as real. Dr Olav Nielssen 1. Dr Olav Nielssen, psychiatrist, provided a report of 13 February 2021. He interviewed the accused on 2 February 2021 and had regard to the witness statements and medical records. 2. Mr Scott told Dr Nielssen that the stabbing was "over money", being about $300 or $400 and said that "he owed me the money and he did not pay me … things got out of hand and I am sorry for my actions." He did not recall holding a knife to his mother's throat and could not explain why he might have done that. In relation to his state of mind before the offence, Mr Scott said that he was "a bit wild… a bit upset", that he had been "dreaming a lot" and he did not know if he was "sleeping and dreaming or just thinking". He did not remember thinking he was on a boat as reported by Mr Dixon and did not recall feeling that he was in danger or threatened by the deceased. 3. When asked about his symptoms, the accused described feeling angry and paranoid. He said he did not take his medication when he was drinking and when he did not take his medication he could not sleep, did not like loud noises, and would get paranoid and sit in his room. He said that at the time of the offence he was "a bit paranoid" and he "thought they [his mother and the deceased] were talking about [him]". He agreed that his symptoms of schizophrenia were worse when he was withdrawing from alcohol, possibly because he did not take his medication when drinking. Mr Scott said that when he did not take his medication he thought other people were talking about him. 4. Mr Scott estimated that he had drunk half a bottle or a bottle of port on the day of the offence and said that he only drank red wine. He said that his pattern was to "drink every day until I get sick of drinking and then I dry out". He said he could go six months without drinking but he could not recall when he started drinking before the offence. He confirmed that he knew a condition of his parole was not to consume alcohol and that he was tested for alcohol by Community Corrections. 5. In relation to the accused's mental state, Dr Nielssen opined that his overall intelligence was estimated to be at the bottom of the normal range from his reported literacy and numeracy including being able to send and receive text messages and budget his pension. Dr Nielssen's diagnoses were chronic psychotic illness (either schizophrenia or a chronic illness secondary to alcohol related brain damage), alcohol use disorder and probable alcohol related brain injury. 6. In relation to the offence, Dr Nielssen noted that the accused provided a rational explanation for the dispute which was not confirmed by any of the witnesses. He considered it likely that the accused experienced "an exacerbation of persecutory beliefs around the time of the offence because of the effect of heavy drinking, recent seizure activity and non-adherence to antipsychotic medication". Dr Nielssen opined that the accused had an underlying condition under s 23A of the Act due to his chronic mental illness, low intelligence and acquired brain damage. He noted the contemporaneous documents which indicated that the accused had stopped taking his anti-psychotic medication and observed that: "[Mr Scott] was likely to have been affected by an abnormal state of mind arising from an exacerbation of his underlying mental illness, in addition to his residual disability. The exacerbation of his mental illness is likely to have resulted in significant impairment in his perception of the events, in the sense that that a manifestation of past exacerbations of mental illness have been the presence of more prominent hallucinations and the emergence of persecutory beliefs. The exacerbation of mental illness is also likely to have resulted in significant impairment in his ability to judge right from wrong, because of the effect of his perception that he was in danger when unwell. His underlying condition is also likely to have resulted in impairment in his ability to control his actions, over and above the effect of the alcohol consumed immediately prior to the offence, and in the preceding days, because of the effect of irrational anger and irritability that have accompanied exacerbations of his mental illness." 1. Dr Nielssen believed that the accused's explanation about money was likely to be post-offence rationalisation but could also be a delusion or a result of generally unreliable memory. He explained that delusions are caused by psychotic illness not alcohol abuse and are defined by a fixed false belief arising without evidence. He said that in the absence of any rational explanation from the accused he had to "join the dots" to determine the cause of the offence. He took into account the accused's history of hearing voices and experiencing delusions and the fact that the accused was not taking his medication to determine that the accused was likely experiencing psychotic symptoms at the time. He also referred to the accused threatening his mother with the knife and saying "I'm sick of this" and "where do you want it", which Dr Nielssen considered was consistent with experiencing voices or delusions and accusing people of being the source of those symptoms. 2. In relation to the observations of Jessie Scott and Stacey Arvidson, Dr Nielssen believed these were consistent with mental illness, likely of a psychotic nature. He believed that these symptoms were separate from the effects of alcohol because Ms Scott and Ms Arvidson had seen the accused drunk on many occasions and believed his presentation was different on the day of the offence. 3. As to the psychotic symptoms exhibited up to 10 days post-arrest, Dr Nielssen stated that this supported the diagnosis of a relapse into mental illness and the effects of an underlying rather than transient condition. In his opinion, the persistent symptoms post-arrest indicated a significant underlying impairment in the absence of alcohol. 4. Dr Nielssen stated that it was difficult to determine Mr Scott's level of intoxication at the time of the offence as it was not apparent how much he had consumed, the period of time over which he was drinking and what his level of tolerance was. He did however believe that the accused had been affected by alcohol at the time of the offence and had been non-compliant with his medication for a couple of weeks. 5. Dr Nielssen accepted that both alcohol and mental illness could cause disinhibition, increased emotional responses and misconceptions, although he identified misperception as a feature of psychosis rather than intoxication. He accepted that both factors could affect Mr Scott's ability to control himself and his awareness of his own conduct. Dr Nielssen also distinguished between disproportionate reactions cause by alcohol and psychotic illness; whereas alcohol may cause disproportionate reactions in instances such as pub fights, psychotic illness is associated with overreactions to underlying false beliefs. He identified Mr Scott's attack on his mother as an example of a likely overreaction to a false belief. In relation to the accused's belief that he was on a boat, Dr Nielssen could not say with certainty whether that was related to alcohol consumption or psychosis. 6. Dr Nielssen accepted that the accused had not reported experiencing any specific symptoms of psychosis on 4 April 2019. Dr Nielssen inferred that he was experiencing such symptoms from the observations of Jessie Scott and Stacey Arvidson, his false belief about money being owed, his hostility towards his mother (implying a false belief in relation to her), his longitudinal history of psychosis resulting from non-compliance with medication and the psychotic symptoms he exhibited post-arrest. In relation to post-arrest symptoms, Dr Nielssen stated that the effects of alcohol withdrawal would usually only last 48 hours and were easily treated with diazepam. 7. Dr Nielssen accepted that the accused's actions towards the police were consistent with wanting to conceal his actions from the police and understanding that his actions were wrong in the eyes of the police. He noted that the accused's comments about going to gaol indicated an understanding that he was in trouble. He accepted that the accused seemed calm and coherent immediately after the offence. He believed this was inconsistent with gross intoxication but did show an ability to control his behaviour in the immediate aftermath. Dr Nielssen stated that in his experience people who were very acutely psychotic could give rational responses to police shortly after events due to the sobering effects of being arrested, especially where a person is familiar with police. He confirmed that calm or rational behaviour shortly after did not indicate that a person was not driven by psychotic illness at the time of the offence. 8. Dr Nielssen did not believe alcohol itself would trigger a psychotic relapse but noted that non-compliance with medication due to an "alcoholic bender" would likely trigger a relapse. He accepted that it was difficult to separate the effects of alcohol and mental illness where the amount of alcohol and its effects on the accused were not known. He agreed that the accused's specific impairments in reasoning, control and perception would have been exacerbated by alcohol consumption, but the degree of that exacerbation was unknown. Legal directions 1. Section 133(2) of the Criminal Procedure Act 1986 (NSW) requires that the judgment in a trial by judge alone "must include the principles of law applied by the Judge and the findings of fact on which the Judge relied". Section 133(3) provides that "[i]f any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter." Burden of proof 1. This is a criminal trial. The burden of proof of the accused's guilt is placed on the Crown. That onus rests upon the Crown in respect of every element of the offence. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but for the Crown to prove his guilt and to prove it beyond reasonable doubt. The words "beyond reasonable doubt" are words of ancient origin in the law and are plain words which do not require elaboration. 2. The onus which rests on the Crown is to prove the elements of the offences with which the accused is charged, beyond reasonable doubt. Despite the fact that the accused accepts the elements, I still have to be satisfied of them beyond reasonable doubt. 3. Despite this, it is for the accused to establish on the balance of probabilities that he was substantially impaired at the time of the stabbing such as to make him liable for manslaughter rather than murder. Impartiality 1. In considering this 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. Reliability 1. There was very little by way of challenge to the credibility of the witnesses, but it is still necessary for me to make findings of fact which requires preferring the evidence of some witnesses over others, including the accused. 2. As the tribunal of fact, it is for me to assess the witnesses, to decide whether they are reliable, that is both honest and accurate, and to determine what parts of the evidence I accept. I may believe all, part or none of what a witness says. A witness may be honest and accurate, honest but mistaken or dishonest in relation to any one or more aspects of their evidence. 3. Other than the expert witnesses, the witnesses, including the accused, have given evidence about things they said they have remembered. How well a person might remember something depends upon many different factors including that person's capacity to lay down an accurate memory in the first place, their capacity to retain that memory and its associated detail, and their capacity to recall the memory and articulate it. 4. The subject matter of an event is also a relevant factor to memory. Some events themselves are of little or no consequence and any memory is retained for a short time only and then forgotten. Other events are of greater importance such that one might remember it for a relatively long time, although perhaps over time aspects of the detail of the memory or the parts one considers to be of no real consequence might fade. 5. I am required to decide whether I consider certain evidence to be sufficiently reliable such that I can act upon it. Reliability depends upon two quite different but overlapping factors. One factor is the witness' honesty and the other is the witness' accuracy. There are many factors which can have a bearing upon a witness' honesty. In considering the question of honesty, I might consider the impression the witness made upon me. Demeanour and impression are important and valid factors to take into account but alone do not determine the honesty or accuracy of the witness' evidence. 6. I am to consider whether a particular witness impressed me as someone doing their best to be truthful or appeared evasive or prone to exaggeration or embellishment. If I conclude that a particular witness has been doing his or her best to be honest, I would need to move to the second aspect of reliability which relates to a witness' accuracy. A witness can be perfectly honest and accurate or perfectly honest, yet completely or partly inaccurate. 7. Although the accused was not required to give evidence in his trial, he chose to do so. I would assess his evidence in the same manner as I would assess the evidence of any other witness who gave evidence before me. Right to silence 1. The accused declined to be interviewed by police when he was arrested. I note that all people in this country have the right to choose not to answer questions put to them by police. The fact that the accused took note of the caution given to him by police and chose to remain silent cannot be used against him and I have not done so. Addresses of counsel 1. I have heard addresses from the Crown Prosecutor, and from Ms Avenell SC, counsel for the accused. I will consider the submissions made in their addresses and give them such weight as I think fit. I remind myself that in no sense are those submissions evidence in the case, and that counsels' arguments provide a way of viewing the evidence from the differing perspectives of the Crown and the accused. 2. I have not set out the addresses of counsel separately as I have addressed them in my reasons below. Inferences 1. I am entitled to draw inferences from the direct evidence. Inferences are conclusions of fact rationally drawn from a combination of proved facts. In the context of a criminal trial, where proof of the offences is required beyond reasonable doubt, I direct myself that I should not draw any inference adverse to the accused from the direct evidence unless I am satisfied that it is the only rational inference in the circumstances. Expert evidence 1. I remind myself about the principles relating to expert evidence. In this case, I have heard evidence from two expert psychiatric witnesses (Dr Nielssen and Dr Eagle) as well as from the forensic pathologist, Dr Van Vuuren. The report of Dr Pulman was tendered. All of these witnesses had specialised knowledge based on their training, study or experience. The expert evidence of these witnesses was admitted to provide me with expert information and opinion which is within the witness' expertise, but which is likely to be outside the experience and knowledge of a lay person. 2. I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of any of the experts, then I do not have to act upon it. Indeed, I do not have to accept even the unchallenged evidence of an expert. However, unless such evidence is simply unbelievable, I note that I would need to have a good reason to reject it. 3. To the extent that there is any conflict within the evidence of an expert, it is for me to decide which part or parts of that evidence I accept and which part or parts I reject. Also, to the extent that there is any difference (or differences) between the evidence of the experts, it is for me to decide which expert evidence I accept and which I reject. Findings 1. Having regard to these directions, I propose to first make some relevant factual findings. Cause of death 1. I am satisfied that the accused caused the death of Mr Carter by stabbing him to the chest and legs 31 times with the knife that was later found on the coffee table. 2. There was a paucity of evidence as to the circumstances leading up to the stabbing. Those circumstances were not in dispute and have been summarised in the evidence of the four witnesses present outside the premises at the relevant time: Ms Scott, Ms Arvidson and Senior Constables Tilley and Chippendale. I shall return to their observations of the accused in my consideration of substantial impairment below. The forensic evidence of the crime scene and that of Dr Van Vuuren satisfies me that the deceased had a possible defensive wound on his hand and that he was on or near the lounge at the time he was stabbed. Of the 31 wounds, one wound to the chest (T2) extended through the deceased's third rib into the left lung, transecting a pulmonary vein and the wounds above the left knee (L3) perforated the femoral artery. Each of these wounds was capable of causing death. I am satisfied that Mr Carter died as a result of a combination of the two. Was there a motive for the killing? 1. I do not accept the accused's explanation that he killed the deceased because of a dispute over money. I have reached this conclusion having regard to a number of factors. 2. First, none of the people in the vicinity of the house around the time of the killing heard any mention of any dispute over money, including Jessie Scott who was in the house when the accused first became aggressive. 3. Secondly, the accused's explanation of the debt is somewhat obscure. Having watched him give his evidence I have come to the view that he was a poor historian. He was unable to answer many of the questions asked of him due to poor memory. I am left with very little by way of explanation by him. His poor memory could be the result of a number of factors: the passage of time (the stabbing occurred well over two years ago); his ingestion of alcohol; his low intellectual functioning; possible alcohol related brain damage; and/or an unwillingness to think about the fact that he killed his mother's friend. 4. Thirdly, the bank records show that the deceased had withdrawn $700 the day before he died. There was no evidence that he needed to borrow money from the accused. 5. Fourthly, the evidence of Ms Arvidson, which I accept, is that the deceased "shouted" the accused and his mother pizza the night before and the IGA footage shows that the deceased, who himself drank cask wine, purchased a bottle of port wine for the accused on the afternoon of 3 April. The available evidence is that the deceased was generous with the accused and his mother. 6. Fifthly, there was no evidence that his mother owed him any money, yet his first acts of aggression were directed towards her. This happened twice. The accused could not explain why he would attack his mother if he was upset that Eddie owed him money. Significantly, it was only after Eddie came to protect Ms Scott that the accused turned his attention to him. 7. Sixthly, the first time that the accused ever raised a debt as an explanation for the killing was with Dr Allnutt on 2 March 2020, nearly a year after the death. This is despite the fact that the accused first spoke to Dr Allnutt in April 2019, less than two weeks after the stabbing. 8. Finally, both experts gave evidence about this potential motive. Dr Eagle's opinion was that it was possible that the accused was trying to "piece together" what had happened and thought that the deceased must have owed him money because that's what usually made him "cranky". Dr Eagle was not of the opinion that it was consistent with a delusion. Similarly, Dr Nielssen's explanation for the accused's claim is that it may have been a "sort of post-offence rationalisation" for his behaviour. Dr Nielssen also suggested that it might have been a "delusional kind of idea arising from symptoms of mental illness" or it might just be an unreliable memory from someone with low intelligence who might have had this explanation suggested to him by someone else. 9. For these reasons, I reject the accused's evidence that the motive for the stabbing was a dispute over money. The Crown accepted that such a finding would lead to the conclusion that there was no motive for the stabbing. How intoxicated was the accused? 1. I am satisfied that the accused had consumed a significant amount of alcohol that day and the day before, but I have had some difficulty assessing exactly how much. He had purchased two bottles of port on 4 April. There was an empty bottle in the esky bin near the kitchen but it is not clear whether there was still port left in the other bottle found on the coffee table. Two bottles were found at the top of the bin in the carport. Given that the evidence was that rubbish was taken outside daily, I am satisfied that they reflected what he had consumed the previous day. He had a bottle with him when he left Bega on 3 April, he purchased another at Pambula and the deceased purchased a bottle of port after he arrived in Eden. These were all 750ml bottles of port. 2. I do not accept the accused's evidence that he would never mix his drinks; he could not explain why this was so and the hospital records of 25 March 2019 reflect that the accused said he had consumed three-quarters of a cask of wine and a bottle of port that day. Despite this finding, I am not satisfied that the accused consumed any of the Moselle cask wine purchased by him that day or by the deceased the day before. The evidence suggests that it was the deceased and Ms Scott who were drinking that wine both on the evening of 3 April 2019 and the following day. 3. The accused admitted that he probably drank alcohol prior to going to the bottle shop on 4 April 2019. Mr Troy smelt alcohol on him when he drove him to the IGA. There was evidence that when the accused was drinking he would do so from the time he got up to the time he went to bed. He was highly dependent on alcohol. Both experts agreed that an alcoholic would be likely to have a higher tolerance for alcohol. 4. I have already found that the accused was not a reliable historian and that finding extends to his account of his own drinking. On this basis, I do not accept as reliable his account to the custody manager of what he had consumed nor his account to Dr Eagle on this subject. I note that although he told Dr Eagle that he was "drunk", he did not elaborate on what he meant by that. 5. I am satisfied that the accused could have consumed at least one and a half bottles of port on 4 April 2019. I am unable to find that he had consumed two bottles because it is unclear how much was left in the bottle found on the coffee table in brown paper. 6. As to observations made of him, that evidence is somewhat inconsistent. I have had regard to the fact that an assessment of a person's intoxication is subjective and can vary significantly. Neither Ms Scott nor Ms Arvidson described him as being intoxicated, although Ms Arvidson's evidence was that Ms Scott described him as drunk when she fled the premises. Significantly, neither of the first two police officers on the scene described him as intoxicated either. 7. Neither Senior Constable Chippendale nor Tilley described him as slurring his speech. Significantly, Mr Chippendale said the accused did not appear intoxicated and that he did not smell alcohol on his breath. Mr Tilley made no observations at all about his sobriety or intoxication in his statement or walkthrough. Although these two officers made no observations about the accused's sobriety, they did describe him as "calm" and "emotionless" during the events. 8. The IGA footage taken when the accused purchased alcohol at 11.40am on 4 April 2019 showed him to be walking normally albeit slowly. There is nothing out of the ordinary in the manner in which he purchased the alcohol, paid for it, put it in his backpack and left the shop. Accepting the limitations of such footage, he did not appear to be obviously intoxicated in that footage. Nor did he appear intoxicated in the interaction shown on the body worn camera of Senior Constable Tilley after the assault. His speech did not appear slurred in that limited footage. 9. The only two witnesses who described the accused as being obviously intoxicated were Sergeant Blanch and Senior Constable O'Neill. Sergeant Blanch gave evidence that he had seen the accused drunk at least twice a month for 23 years and could not remember the rare occasions he had seen him sober. Allowance should be made for whether that longstanding history led him to make assumptions on the day based on that prior experience. 10. Senior Constable O'Neill, the custody manager, observed the accused when he was taken into custody. He described his breath as smelling of alcohol, and said that he did not need support to walk but was a "little bit swayey". His evidence was that the accused appeared to understand the questions he was asked and gave answers that could be understood. The forensic procedure recorded some hours later showed that the accused appeared tired but otherwise quite flat in his affect. In that short recording he does not appear distressed at all about having killed his mother's friend. I was left with the impression that he might not have apprehended the implications of what had happened. 11. Overall, I am satisfied that the accused must have been intoxicated to some extent, but he was not slurring or physically affected by his intoxication and could respond to questions. 12. I will return to the relevance of this finding in my consideration of the partial defence of substantial impairment below. Other relevant findings 1. As stated above, most of the evidence was unchallenged and I accept the evidence I have extracted above unless I have indicated otherwise. 2. The remaining findings I am required to make all concern the elements of the offence and the partial defence raised by the accused. The elements of the offence 1. Section 18(1)(a) of the Act provides as follows: 18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. … 1. In order to establish the offence of murder the Crown must prove beyond reasonable doubt that the accused voluntarily did an act which caused the death of the deceased with the intention of either killing or inflicting grievous bodily harm on the deceased. 2. There was no evidence put before the Court to suggest that the accused's actions were not voluntary (for example, caused by involuntary actions such as sneezing, epileptic fits and sleepwalking). 3. The unchallenged evidence of Dr Van Vuuren was that the deceased died from the stab wounds inflicted by the accused. 4. As for the relevant mental element, the Crown submitted that I would be satisfied beyond reasonable doubt that the accused intended to kill the deceased given that he stabbed him 31 times. Nothing to the contrary was put on behalf of the accused. I am satisfied that what a person actually does often provides the most convincing evidence of what the person's intention was at the time, especially where the specific result is an obvious and inevitable consequence of the person's action. 5. Having regard to the evidence that the accused stabbed the deceased 31 times in the chest and legs, I am satisfied beyond reasonable doubt that the accused intended to kill the deceased when he stabbed him in the manner he did. 6. Having so found, I now turn to consider whether the accused has established the partial defence of substantial impairment on the balance of probabilities. Substantial impairment 1. As at 4 April 2019, the partial defence of substantial impairment in s 23A of the Act was in these terms: 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if— (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. (2) For the purposes of subsection (1)(b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible. (3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section. (4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section. (5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead. (6) … (7) If, on the trial of a person for murder, the person contends— (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or (b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered. (8) In this section— underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind. 1. Section 23A was recently amended by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The new section commenced on 27 March 2021 and provides as follows (amendments in italics): 23A Substantial impairment because of mental health impairment or cognitive impairment (1) A person who would otherwise be guilty of murder is not to be convicted of murder if— (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 1. Subsections (8) and (9) define "cognitive impairment" to include an intellectual disability and alcohol-induced brain injury. A mental health impairment is defined in s 4C of the Act to include a psychotic disorder but exclude an impairment caused by the temporary effect of ingesting a substance. 2. Both the Crown and the defence contended that the earlier version of s 23A is applicable in this trial and I accept that to be the case. It was also common ground that even if the new provision had applied it would not make any difference in this matter. 3. There are two limbs to the test for substantial impairment in s 23A(1). The first limb is that set out in s 23A(1)(a) and the second limb is in s 23A(1)(b). The first limb requires the accused to establish that at the time of the offence his capacity to understand events, to judge whether his actions were right or wrong or to control himself was substantially impaired by his mental health condition(s), disregarding his intoxication at the time of the offence. There are two questions to be determined as part of the first limb: does the accused have a mental health condition and if so, was he substantially impaired by it in one of the ways set in s 23A(1)(a). Beech-Jones J (as his Honour then was) observed in R v Quinn (No 2) [2016] NSWSC 1244 at [24] that there are thus in fact three elements for the defence to establish on the balance of probabilities which are: 1. That at the time of committing the act the accused was subject to an abnormality of the mind arising from an underlying condition as defined in s 23A(8) of the Act; 2. That at the time of the stabbing his abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a) (to understand events, judge whether his actions were right or wrong or to control himself); and 3. That the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 1. I will address these three elements in turn. Does the accused have an "abnormality of mind" arising from an "underlying condition"? 1. An "underlying condition", as defined in s 23A(8) of the Act, means "a pre-existing mental or physiological condition, other than a condition of a transitory kind". It does not have to be a permanent condition, but it is not sufficient for it to be a passing condition or one that only lasts for a short time. 2. As to what is meant by an "abnormality of mind", in Quinn v R [2018] NSWCCA 297 at [48], Hoeben CJ at CL (with whom White JA and Fagan J agreed) adopted what was said by Lord Parker CJ in R v Byrne [1960] 2 QB 396 as to the meaning of this phrase: "'Abnormality of mind,' which has to be contrasted with the time-honoured expression in the M'Naughten Rules 'defect of reason', means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts. Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence." 1. Hoeben CJ at CL continued, at [49]: "As set out in Byrne, Lord Parker CJ described the concept of control as the 'ability to exercise willpower to control physical acts in accordance with a rational judgment' formed about whether an action is right or wrong. Further, in Byrne Lord Parker CJ stated at 404: '… In a case where the abnormality of mind is one which affects the accused's self-control the step between "he did not resist his impulse" and "he could not resist his impulse" is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way"." 1. There is uncontested evidence in this case that the accused has suffered from schizophrenia for which he has been medicated for some years. This is not a case in which the diagnosis was made for the first time following his arrest. The accused was diagnosed with this condition at least as far back as 2008. I have set out his history in that regard at [74]-[118] above. Regrettably, the accused also has a history of not taking his medication when he is drinking. Not only did a number of witnesses give evidence to that effect, it is reflected in the medical records. 2. In addition to a history of schizophrenia, Dr Pulman's evidence was that the accused's intellectual functioning fell within the extremely low range and at the first percentile consistent with a mild intellectual disability. It is to be noted that whereas Dr Eagle agreed with the evidence of Dr Pulman, Dr Nielssen described Mr Scott's intelligence as being at the bottom of the normal range rather than as a disability. I have accepted the evidence of Dr Pulman on this issue. 3. In addition to the medical records establishing the accused's lengthy history of mental illness, both Dr Eagle and Dr Nielssen agreed that the accused had an underlying condition, namely, schizophrenia. They also generally agreed that at the time he killed Mr Carter, the accused was likely to have been suffering the effects of his schizophrenic illness because of his decision to stop taking his medication and his heavy drinking. 4. Dr Nielssen opined that the accused had a chronic mental or psychotic illness most likely schizophrenia or alternatively a chronic illness secondary to alcohol-related brain damage. His opinion was that the persistence of symptoms after the removal of alcohol and the reinstatement of medication in custody indicated a significant underlying impairment before alcohol was added. His opinion was that the accused's mental illness was exacerbated when he stopped taking his medication. Based on the accused's medical history, he was satisfied that the accused's condition was chronic rather than transient. 5. Dr Eagle's opinion was also that the accused's underlying condition was schizophrenia which is an abnormality of mind. She agreed with Dr Nielssen that the accused experienced a deterioration in his mental state due to non‑compliance with medication but she identified his excessive consumption of alcohol leading up to the stabbing as a reason for his abnormality of mind. 6. Given that s 23A(3) requires me to put to one side any self-induced intoxication when considering the partial defence of substantial impairment, in assessing Dr Eagle's evidence I must disregard any abnormality of mind which, on her evidence, arose from the accused's intoxication rather than his schizophrenia. I pause to note that "intoxication" is somewhat unhelpfully defined in s 428A of the Act as "intoxication because of the influence of alcohol, a drug or any other substance." 7. Both experts accepted that the accused was affected by alcohol on 4 April 2019 and that it is difficult to separate the effects of chronic mental illness and intellectual impairment from alcohol intoxication. As stated above, the substance of the differences between the experts is, in effect, the degree to which the accused was impaired by his mental illness on 4 April 2019 and the degree to which he was impaired by alcohol. 8. I have examined Dr Eagle's evidence closely and it seems to me that by the end of her cross-examination, Dr Eagle had made a number of concessions which align her opinion more closely with that of Dr Nielssen. In addition, some of the assumptions upon which her opinion was based were undermined by other evidence adduced at trial. When regard is had to these matters, which I will address in turn, I am satisfied that the two experts are not as far apart in their opinions as it may seem. 9. First, Dr Eagle's assumption as to how much alcohol the accused had consumed was based on what the accused told her. I am satisfied, for reasons I have already provided, that his account may not have been reliable. He told Dr Eagle that he was consuming three to four litres of wine a day for "a few weeks" beforehand and was drinking every day from the time he got up until he went to bed at night. Although it is to be accepted that the accused is a chronic alcoholic and had been drinking heavily during that period, I am not satisfied on the evidence that the accused was drinking that amount nor that he was drinking every day. 10. Evidence that contradicts the accused's account includes the evidence from his Community Corrections officer that he appeared sober on 19 March 2019. Further, Jessie's Scott's evidence that he was not drinking on 1 and 2 April is consistent with the fact that he was recorded as having a nil blood alcohol concentration at his Community Corrections meeting on 2 April 2019. That is not to say that he did not drink to excess on other days during the period, as described at [116] above, but it does cast some doubt on the applicant's account of his own drinking to Dr Eagle. 11. Secondly, Dr Eagle relied upon the fact that the accused provided a rational explanation for the stabbing as evidence that he was not suffering from a delusion at the time. That rational explanation was that he attacked the deceased because of a dispute over money. For the reasons provided at [220]-[228] above, I have rejected this explanation by the accused. That means that another of the assumptions underpinning Dr Eagle's opinion is flawed (this is not intended as any criticism of Dr Eagle). 12. Thirdly, another important assumption underpinning Dr Eagle's opinion was her conclusion that there was "no real evidence" that the accused was experiencing symptoms of psychosis on the day, despite the fact that he had "chronic impairments" associated with schizophrenia at that time. But this finding ignores the unprovoked attack on his mother. Dr Eagle's evidence was that this could equally have been the result of his intoxication. She stated: "… Alcohol fuelled rage, alcohol related anger and violence is quite common and significant. I think it is complicated because Scott clearly does have a mental impairment and a cognitive impairment that must be operating to some degree on his mental state. But a person who is heavily intoxicated may easily be provoked into a state of rage when otherwise they would not have been by something that was otherwise relatively minor from you know an observer's perspective." (emphasis added) 1. The difficulty with this evidence is that there is no evidence of any provocation at all, not even something "relatively minor" that triggered him. In fact, the evidence adduced at the trial was that he relied upon his mother for support. When he was "freaking out" the previous day he asked Mr Dixon to take him to his mother and whilst he was inside the premises with the deceased he tried to persuade Ms Arvidson to get his mother to go back into the house. 2. Dr Eagle agreed in cross-examination that there was no explanation as to why the accused attacked his mother and that it was possible that he might have been experiencing symptoms of psychosis due to underlying symptoms that he could not now recall. The following exchange then took place: "Q. Can this, the absence of an explanation, contribute to that suggestion that there is something psychotic, a psychotic sign or symptom involved? A. There is potentially, yes. Q. Could it suggest that he had a persecutory belief about his mother even if he hasn't expressed it? A. Yes it could. Q. Can people in a psychotic state forget or be unable to explain the reasoning or the sign of the psychotic motivation? A. They can, and if you are intoxicated at the time obviously you would also have problems remembering what was in your mind at the time and it could have been both, he might have had paranoid delusions at the time about his mother that he can't remember now, because he was intoxicated at the time, so both of those things might affect a person's memory." 1. I am satisfied that the unprovoked attack on his mother is consistent with him suffering from some sort of delusion at the time that cannot be explained by intoxication. Dr Eagle ultimately conceded as much. 2. Fourthly, Dr Eagle's evidence was that it is "very difficult to separate the alcohol" from his illness. Although she gave evidence that Mr Scott's belief that he was on a boat while in Mr Dixon's car was explicable as arising from alcohol intoxication, she accepted that it could reflect the deterioration in his mental state due to his illness. In fact, when Mr Dixon's evidence was read to her she agreed that his observations were consistent with mental illness rather than the effects of alcohol. 3. Similarly, Dr Eagle accepted that the evidence that the accused had (uncharacteristically) left his flat wide open the previous day was consistent with an increased level of disorganisation attributable to his illness. 4. When asked about the possibility that the accused was ruminating, as observed by Ms Scott and Ms Arvidson, she accepted that impaired judgment from alcohol can "operate alongside symptoms of psychosis". She agreed that the observations by those witnesses of the accused looking "possessed" "might" suggest he was internally preoccupied, possibly by thoughts of a psychotic nature. She went on to state: "I think that the fact that he experienced a psychosis and the psychosis included symptoms that were paranoid symptoms about his family is suggestive he may have had other symptoms at the time of the alleged offending on 4 April and they may well have been related to his psychotic illness, yes." 1. And then this exchange took place: "Q. And they could have been the motivation for his behaviour towards his mother and Mr Carter? A. Yes, they could have been. Q. And that's separate from any alcohol consumption? A. Yes. I mean that's a symptom of psychosis. It's not a symptom of intoxication, yes." (emphasis added) 1. Fifthly, Dr Eagle placed reliance on the drinking leading up to 4 April 2019 as contributing to his condition that day. Although in assessing the partial defence under s 23A of the Act I am not permitted to have regard to the effects of self-induced intoxication at the time of the stabbing, there is nothing in s 23A which precludes me from having regard to the fact that Mr Scott was drinking heavily in the period prior to 4 April 2019. The relevant time is at the time of the stabbing. It was common ground that I am permitted to have regard to the effects of intoxication that occurred up until 4 April 2019 but not on that day. 2. Finally, in cross-examination, Dr Eagle accepted that leaving aside his drinking on 4 April 2019, the accused would still have had an abnormality of mind. She agreed that that non‑compliance with medication is usually sufficient to cause a relapse of schizophrenia and the fact of not taking prescribed antipsychotic medication alone would generally result in a deterioration in mental state over a period of weeks or months sufficient to give rise in itself to an abnormality of mind. 3. For these reasons, I am satisfied on the balance of probabilities that, even when the fact of the accused's self-induced intoxication on 4 April 2019 is excluded from my consideration, the accused was suffering from an abnormality of mind which arose from his underlying condition of schizophrenia. Has the accused established that his abnormality of mind substantially impaired at least one of the three capacities in s 23A(1)(a) (to understand events, judge whether his actions were right or wrong or to control himself)? 1. The degree of impairment required under this second limb was explained by Hunt CJ at CL in R v Trotter (1993) 35 NSWLR 428 at 431. His Honour stated that "[s]ome impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial" (emphasis added). His Honour further stated that in order to be substantial, "the impairment may be less than total, but it must be more than trivial or minimal". 2. I have already examined the differences in the approaches taken by the experts on this issue. Both experts opined that there are a number of symptoms that can be attributed to effects of both psychosis and intoxication such as disinhibition, increased emotional responses, an impaired ability for logical thinking, acting disproportionately and a loss of or reduction in self-control and awareness of conduct. For the reasons I have already provided, I am of the view that Dr Eagle made some concessions in cross-examination. 3. Having found that the accused was suffering at the relevant time from an abnormality of mind which arose from his underlying condition of schizophrenia, the question is whether that led to a substantial impairment of the accused's capacity to understand events, judge whether his actions were right or wrong and to control himself 4. Dr Nielssen was of the view that the relapse of the accused's psychotic illness likely resulted in significant impairment in the accused's perception of events. When he had relapsed in the past, he had prominent hallucinations and an emergence of persecutory beliefs. He opined that the accused would have had significant impairment in his ability to judge right from wrong and to control his actions. The accused had also previously perceived danger when he was unwell and had found it difficult to control his actions. 5. Dr Nielssen's evidence on this question is best encapsulated in the answers he gave near the conclusion of his cross-examination by the Crown Prosecutor. He described the accused's impairment from his schizophrenia as being over and above the effect of the alcohol consumed before the offence and in the preceding days because: "A. He was unwell when he came in, you know, and it is a mad thing to do. You know it's a paranoid thing. He had no genuine grievance against the guy, certainly he had a grievance against his mother, and, yeah I believe he was quite affected by symptoms of psychosis at the time. Q. But also affected by alcohol but to a lesser degree, is that fair to say? A. Yes, to some degree, you know." 1. Dr Eagle on the other hand opined that the accused's capacities were not substantially impaired by his abnormality of the mind and that alcohol played a greater role in relation to his capacity. As she stated in her report: "Mr Scott's mental illness and intellectual disability would have had some impact on his capacity to understand events, reason as to wrongfulness… and control himself. However, I am of the view that Mr Scott's specific impairments in reasoning, control and perception (understanding) would have been significantly exacerbated by his level of alcohol intoxication." 1. Despite this, Dr Eagle accepted that the accused's deterioration in his mental state would have resulted in some impairment of judgment, function and capacity to reason. She went on to say that: "The mental illness and intellectual disability would have had some impact on his capacity to understand events, reason as to wrongfulness and control himself." 1. I have already highlighted how Dr Eagle's opinion relies to a significant extent on the absence of symptoms of psychosis operating on the accused's motivation and behaviour. The fact that I am satisfied that there were symptoms of psychosis that day leads me to place less weight on this aspect of Dr Eagle's opinion. I have also had regard to the fact that the experts agreed that the accused's low intellectual functioning could make it more difficult for him to describe and remember any persecutory beliefs. 2. Having closely considered the expert evidence, I am satisfied that the weight of it favours the conclusion that the accused's capacity to understand events, judge whether his actions were right or wrong and to control himself was substantially impaired at the time of the stabbing due to his mental illness. It seems to me that Dr Eagle was ultimately unable to exclude the prospect that the accused's psychiatric condition was the operative condition on the day rather than his intoxication. 3. In addition to the expert evidence, I have also considered the eyewitness descriptions of the accused. Dr Nielssen said that he would often rely on corroborative information such as the observations of people who know the person well in understanding the person's psychiatric history and typical manifestations. In that regard, both Ms Scott and Ms Arvidson described the accused as "possessed" as extracted above at [31], [43]. Ms Scott said: 4. Both Ms Scott and Ms Arvidson emphasised that the accused appeared very different to the many occasions on which they had observed him drunk. Although, some allowance must be made for the fact that Ms Scott had been drinking that day, Ms Arvidson had not and was an impressive witness. 5. I have had regard to the evidence that the accused told Mr Dixon the previous day that he was "freaking out" and wanted to see his mother. The fact that he wanted to go home to see his mother seems to me to be consistent with emerging symptoms of schizophrenia. 6. I am satisfied that there was no motive for the accused to attack his mother and, quite separately, no motive to attack his mother's friend. The Crown was unable to identify any motive for either attack. Although it is to be accepted that a person may fly into an alcoholic rage at the slightest provocation, not a scintilla of evidence of any provocation has been put before the Court. That factor weighs heavily in favour of the unprovoked stabbing being a result of a psychosis. 7. I consider it to be significant that after the accused withdrew from alcohol in custody and resumed compliance with Olanzapine he still exhibited persistent symptoms of psychosis for at least 10 days. Dr Eagle was taken to the Community Corrections notes of 14 April 2019 extracted above at [118]. Dr Eagle accepted this evidence and suggested that it raised the possibility that he was affected by psychotic phenomena on 4 April 2019 even if not expressed by him. 8. As against these factors, the Crown relied upon the accused's conduct at and after the time of the stabbing and submitted that it established that the accused was acting rationally at the relevant time. I will address each factor identified by the Crown individually. 9. There was the evidence that the accused asked Ms Arvidson to get his mother to come back into the premises during the assault. It is not clear to me why this shows a capacity to reason. He wanted his mother the previous day when he was "freaking out". It seems to me that calling for his mother is consistent with him "freaking out" again and wanting her support. 10. There was also evidence that the accused shut the curtains as soon as the police arrived. The evidence of some of the police officers was that the accused had longstanding and regular contact with police due to his public drinking. I accept that the fact that he drew the curtains shows that he did not want to be seen by police but I am not satisfied that this suggests he was thinking particularly rationally at the time, especially as he did this before he attacked the deceased for no reason. The same applies to the evidence that he mostly ignored police enquiries and told them to "fuck off". 11. Then there is the evidence as to the accused's conduct after the stabbing. I consider this evidence to be somewhat disturbing. Having just stabbed someone he considered a friend 31 times for no reason, the accused then acted very calmly as if nothing at all had happened. He wanted a cigarette in exchange for information as to where he had stabbed the deceased. The Crown submitted that the fact that the accused attempted to bargain with the police reflects an ability to reason and a capacity to understand what was going on. For my part, I do not consider that a person who had just been caught in the act of murdering someone would behave in this manner if he or she was thinking rationally. 12. The Crown also relied upon Dr Nielssen's evidence that the accused's conduct after being arrested, when he was observed to be calm and coherent, was consistent with an ability to control his behaviour. But Dr Nielssen went on to say that this apparent coherence and rationality after the fact did not necessarily mean that the accused was capable of controlling his behaviour immediately beforehand. The presence of police may have had a sobering effect on the accused. Dr Nielssen noted that in his experience he had observed changes in behaviour and demeanour quite soon after extremely violent offences. 13. The final matter relied upon by the Crown was that the accused said he was going to gaol and told his brother he was ashamed of what he had done shortly after being arrested. The evidence is that he was handcuffed and placed under arrest immediately upon entry by police and would have seen the officers trying to resuscitate the deceased. I am satisfied that the accused likely realised what he had done afterwards. It is important to note that he did not rely upon a defence of mental illness. The evidence was that he knew what he had done was wrong after the fact. That does not preclude a finding that he was substantially impaired at the time of the stabbing. 14. I have considered these matters and although they establish that the accused was aware that he had stabbed the deceased and that he was in serious trouble for that, the fact remains that he provided no explanation for his actions at that time and it was not until nearly a year later that he provided an explanation which, for the reasons I have already provided, I do not accept. 15. Having regard to all of these factors, I am satisfied on the balance of probabilities that the accused's capacity to understand events, judge whether his actions were right or wrong and to control himself was substantially impaired at the time of the stabbing as a result of his mental illness (his abnormality of mind arising from his underlying condition of schizophrenia). Was the impairment so substantial as to warrant the accused's liability for murder being reduced to manslaughter? 1. The determination of whether an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is a value judgment applying community standards: Potts v R [2012] NSWCCA 229 at [33] citing R v Trotter at 431. On this issue the Crown helpfully identified a number of judge alone trials concerned with s 23A where factors relevant to this test have been identified. 2. In R v Quinn at [34] Beech-Jones J accepted that factors relevant to the assessment in that case included the nature of the abnormality, the extent or degree of the impairment, the accused's thought processes and the extent to which the accused differed from the ordinary person. 3. In R v Haydar (No.3) [2017] NSWSC 159 Garling J was not satisfied that the substantial impairment warranted a conviction for manslaughter in lieu of murder because although the accused's capacity to control himself was impaired by his depression, this was not the only factor in his behaviour. His actions were predominantly the result of his jealousy and anger towards his wife. 4. In R v Hutchison & Wilkinson [2018] NSWSC 1759 at [315]-[317] Hamill J took into account the nature of the killing, its planning and attempts to cover it up as well as the degree of impairment. Hamill J took into account his understanding of current community standards including increasing awareness of the impacts of child sexual assault. 5. In R v Eyuboglu (No 2) [2019] NSWSC 285 at [80]-[99] Button J in a judge alone trial took into account: the nature of the accused's mental illness and its effects; the fact that the accused was intoxicated and chose not to take his medication; the fact that the accused drank extensively and took amphetamines which compromised his mental and emotional well-being; the fact that the accused was sufficiently cognitively engaged as to dispose of evidence and tell lies to cover his own involvement; the ability of the accused to function reasonably well; the nature of the attack on the deceased; the nature of the intention established when stabbing the deceased; and an assessment of the community standards in relation to the suggestion that the attack was motivated by a homosexual advance. 6. In the present matter, the Crown identified the following factors as being relevant to the value judgment I am required to make: that the accused was drinking heavily at the time of the killing, that he chose not to take his medication, that I would not conclude that there was a high degree of impairment of his capacities and the fact that the assault which caused the death of Mr Carter involved the infliction of 31 wounds. The Crown quite properly raised as a countervailing feature the absence of any obvious motive or provocation. 7. On behalf of the accused it was submitted, inter alia, that the resolution of this test turned to a significant degree on how substantial I find the impairment to be under the first limb of the test. 8. Having considered all of the evidence I am satisfied that the following factors are relevant to the value judgment I am required to make. It is to be accepted that some of them point in different directions. 9. The starting point is that the accused made a sustained attack on an unarmed man who had caused him no harm. I have already found that he acted with an intention to kill. I believe that such grave conduct, on its own, would usually warrant condign punishment for murder, consistent with community values. On the other hand, this was a case with no pre-meditation or motive. Given the other evidence at trial, this fact strongly suggests the killing was the result of some sort of psychosis. 10. I have had regard to the fact that the accused's underlying condition and abnormality of mind caused by schizophrenia is longstanding and requires compliance with medication. It seems to me that, consistent with community standards, any judgment of the accused's actions is to be made in the context that he suffers from a chronic mental illness. 11. I have considered the evidence that the accused continued to drink heavily despite the terrible damage it was doing to both his physical and mental health. He had been offered help through the health system and the Community Corrections Service, but he persisted with his drinking regardless of this. It seems to me that the general public would expect such persons to take some personal responsibility for their actions. On the other hand, I have also had regard to Dr Nielssen's evidence that people with schizophrenia are known to use substances (such as alcohol) to relieve the distress that comes from that condition. Further, although I am precluded from having regard to the effects of self-induced intoxication at the time of the stabbing, I am not precluded from having regard to the accused's chronic alcohol dependence over many years and its impact on his general decision-making capacity. 12. I have had regard to the fact that the accused was non-compliant with his medication when intoxicated and should have understood the serious consequences of this. It seems to me that, as a general rule, the community expects mentally ill persons who know that there will be serious consequences if they fail to take their medication to do their best to remain compliant. But in addition to his diagnosis of schizophrenia, the accused is also a person with an intellectual disability. This would no doubt have had an impact on his decision‑making capacity. 13. I have come to the view that the degree to which the accused's capacity to understand events, judge whether his actions were right or wrong and to control himself was substantially impaired is significant. The accused stabbed to death a person who was his friend for no reason. Prior to the assault on the deceased he threatened to stab the person who, on the available evidence, was the closest to him: his mother. He was observed as looking "possessed" that day. He has an intellectual disability, a long psychiatric history and his psychosis continued after the day of the stabbing, long after he had withdrawn from alcohol. 14. Having regard to all of these matters, I have made the value judgment that the accused's impairment at the time of the stabbing was so substantial as to warrant his liability for murder being reduced to manslaughter. I am satisfied that this decision reflects community values. Conclusion 1. It follows that I am obliged to find the accused guilty of manslaughter. 2. I will fix the matter for submissions on sentence on 7 December 2021. If that date is not suitable to the parties then they should approach my Associate to obtain a further date. 3. Accordingly: 1. I find the accused not guilty of murder but guilty of manslaughter. 2. The accused is convicted of manslaughter. 3. The proceedings are stood over for submissions on sentence on 7 December 2021 at 10:00am. Amendments 07 December 2021 - [1] "Eden" instead of "Bega" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2021