Supreme Court New South Wales Medium Neutral Citation: R v MC (No 2) [2021] NSWSC 1542 Hearing dates: 22 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: With respect to each offence, I return a special verdict of act proven but not criminally responsible. Catchwords: CRIME – Murder – Defences – Mental illness – special hearing by judge alone – where accused was found unfit to be tried – whether accused not criminally responsible by reason of mental illness – special verdict of act proven but not criminally responsible Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Mental Health (Forensic Provisions) Act 1990 (NSW), s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 33, 34, 56, 59, 62, 78, 80 Criminal Procedure Act 1986 (NSW), s 133 Mental Health Act 2007 (NSW) Crimes Act 1900 (NSW), ss 18(1)(a), 33(1)(a) Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 M'Naghten's Case (1843) 8 ER 718 R v Jackson [2021] NSWSC 1404 R v MC [2020] NSWSC 1160 R v Presser [1958] VR 45 R v Sands [2021] NSWSC 1325 R v Siemek (No. 1) [2021] NSWSC 1292 R v Tonga [2021] NSWSC 1064 Sodeman v The King (1936) 55 CLR 192; [1936] HCA 75 The King v Porter (1933) 55 CLR 182; [1933] HCA 1 Category: Principal judgment Parties: Regina (Crown) MC (Accused) Representation: Counsel: P Barrett (Crown) B Rigg SC (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/4046 Publication restriction: Pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) the accused's name is not to be published or broadcast in a way that connects him with these proceedings. EX TEMPORE Judgment 1. On 21 August 2020 the accused was arraigned before Wilson J upon two charges: the murder of Chih-Jen Yeh and the wounding of Shannan Vaughan with intent to cause him grievous bodily harm. He was not asked to enter a plea to the indictment, the issue of his fitness to be tried having been raised. Her Honour on the same date found, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), then in force, that the accused was unfit to be tried: R v MC [2020] NSWSC 1160. 2. On 17 August 2021 the Mental Health Review Tribunal determined, pursuant to s 78(b) and s 80 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") that the accused was not fit to be tried and would not become fit to be tried within 12 months from the date of Wilson J's findings. In due course, the Court received notification from the Director of Public Prosecutions that prosecution of the charges would be continued. The matter was subsequently listed for a for special hearing which commenced before me yesterday. 3. The special hearing is governed by the Act, despite the events giving rise to the charges having occurred prior to its commencement. For reasons explained by Wilson J in R v Tonga [2021] NSWSC 1064 at [8]-[10] ("Tonga") (and subsequently followed by Johnson J in R v Siemek (No. 1) [2021] NSWSC 1292 ("Siemek") and R v Jackson [2021] NSWSC 1404 and R A Hulme J in R v Sands [2021] NSWSC 1325) the proceedings should be taken to have commenced on the commencement of the trial before me, and the current Act therefore applies pursuant to cl 5 of Pt 2 of Sch 2 of the Act. 4. Section 56(1) of the Act provides that a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. Section 56(2) provides that the Court may, if it thinks it appropriate in the circumstances of the case, modify court processes to facilitate the effective participation by the accused in the special hearing. 5. Section 56(9) provides that the proceeding is to be determined by a judge alone unless an election is made by the accused or the prosecutor for trial by jury. In the present case no such election was made and the special hearing has been conducted by me sitting without a jury. 6. Accordingly an indictment was presented before me, sitting as a judge alone, and the charges were read to the accused, although, having regard to the nature of the proceeding the accused was not asked to plead to the charges. The charges on which the accused was arraigned are as follows: 1. Count 1: That he did, on 3 January 2019, at Chatswood in the State of New South Wales, murder Chih-Jen Yeh contrary to s 18(1)(a) of the Crimes Act 1900 (NSW); and further, 2. Count 2: That, on 3 January 2019, at Chatswood in the State of New South Wales, he wounded Shannan Vaughan with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. 1. I note that the accused was, on the date of the offences are alleged to have been committed, that is 3 January 2019, a child under the age of 18 years. Although he is now over 18, the Children (Criminal Proceedings) Act 1987 (NSW) applies to the proceedings before the Court. Consequently, s 15A operates to prohibit publication or broadcast of the accused's name, or any material that identifies him or is likely to lead to his identification, in a way that connects him with these proceedings. 2. A bundle of material was tendered by the Crown and became exhibit A in the trial. That bundle contained the following material: 1. The Crown Case Statement; 2. Statement to police of Shannan Vaughan dated 3 January 2019; 3. Statement to police of Penny Teng dated 3 January 2019; 4. Statement to police of Steve Zargon dated 4 January 2019; 5. Statement to police of Yi-Chun Lin dated 3 January 2019; 6. Statement to police of Jillian Doyle dated 4 January 2019; 7. Statement to police of Katherine Whitehouse dated 8 January 2019; 8. Statement to police of accused's mother dated 8 January 2019; 9. Statement of DSC Daniel Fisher dated 11 June 2019; 10. Transcript and video of the accused's ERISP (Electronically Recorded Interview with Suspected Person) on 4 January 2019; 11. Judgment of Wilson J in R v MC [2020] NSWSC 1160; 12. Transcript of proceedings before Wilson J on 21 August 2020; 13. Decision of the Mental Health Review Tribunal dated 17 August 2021; 14. Two reports of Dr Adam Martin dated 17 June 2020 and 12 November 2021; 15. Two reports of Dr Yumna Dhansay dated 14 December 2019 and 16 November 2021; and 16. The affidavit of Ms Leanne Connell dated 16 November 2021. 1. An autopsy report dated 21 June 2019 was tendered and became exhibit B. No further written or oral evidence was called in the Crown case. 2. No evidence was tendered or called by the defence, though I note the last item in the Crown bundle (the affidavit of Leanne Connell dated 16 November 2021) was provided by the defence but, for convenience, tendered with the Crown materials. Judge alone trial and the nature of a special hearing 1. Where an accused person is tried without a jury, s 133 of the Criminal Procedure Act 1986 (NSW) imposes obligations upon the judge in reaching a verdict. That section provides: (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If 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. 1. I note this special hearing is being held as the accused has been found unfit to be tried in accordance with the usual procedures. In order to be fit to be tried for an offence an accused must satisfy the "Presser criteria" (R v Presser [1958] VR 45) as affirmed in Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 in that he must: "... be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in Court in a general sense, though he need not, of course, understand all the formalities. He needs to be able to understand the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this by letting his counsel know what his version of the facts is and, if necessary, telling the Court what it is. He need not have the mental capacity to make an able defence: but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 1. It has been found by this Court in the earlier proceedings that the accused does not meet these minimum standards. 2. The purpose of a special hearing is to ensure that, despite the unfitness of the accused to be tried in accordance with the normal procedures, the accused is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged. 3. Section 59(1) of the Act provides the verdicts available at a special hearing include the following: (a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged. 1. Section 59(3) provides: A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met. 1. Section 28(1) provides: (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). 1. The test, above, reflects the former common law principle found in M'Naghten's Case (1843) 8 ER 718 at 720, followed and affirmed in The King v Porter (1933) 55 CLR 182; [1933] HCA 1 at 189-190; Sodeman v The King (1936) 55 CLR 192; [1936] HCA 75 at 215. 2. Section 28(2) provides: The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. 1. In the present context, that is a judge alone trial, the issue, should it arise, is to be determined by me on the balance of probabilities. The consequence of the verdicts 1. If the accused is found not guilty in this special hearing he is to be dealt with as if he had been found not guilty of the offence at an ordinary trial of criminal proceedings. That is, he is entitled to an acquittal on the charges. 2. A special verdict of act proven but not criminally responsible at a special hearing is taken for all purposes to be a verdict reached at an ordinary trial of criminal proceedings. I may make any order or take any action in respect of the defendant that a court could make on reaching the same verdict under Pt 3 of the Act. Part 3 deals with defence of act proven but not criminally responsible in ordinary trials. 3. Section 62 of the Act provides that a verdict that on the limited evidence available the defendant committed the offence charged or an alternative to the offence charged: (a) constitutes a qualified finding of guilt but does not operate as a conviction for the offence, and (b) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and (c) is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation. 1. A finding that on the limited evidence available the accused committed an offence would require me to determine, had the matter been an ordinary trial, whether I would have imposed a sentence of imprisonment. That would be the only realistic outcome in this matter. I would then be required to nominate a limiting term, that being the best estimate of the sentence I would have imposed on the accused if it had been an ordinary trial. The accused would then be referred to the Mental Health Review Tribunal ("MHRT") who would be responsible for his management as a forensic patient. The purpose of the limiting term is to ensure the accused is not detained in custody longer than would have been the case had he actually been found guilty of the offence or offences. 2. If a special verdict of act proved but not criminally responsible is returned, the effect is set out in s 33 of the Act: 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders— (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. 1. In the event the accused is not unconditionally released (which would not be likely in a case such as this) I must refer him to the MHRT: s 34 of the Act. The accused would then become a forensic patient. 2. The MHRT is a specialist body constituted under the Mental Health Act 2007 (NSW). Decisions are made by a Tribunal panel consisting of three members: a lawyer who chairs the hearing (generally a senior lawyer, most commonly a judge or former judicial officer), a psychiatrist, and another suitably qualified member. The Tribunal makes decisions with respect to the management of forensic patients. 3. I direct myself that a defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of a mental health impairment or cognitive impairment, or both, may be ordered to be released by the Tribunal only if the Tribunal is satisfied, on the evidence available to it, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. I note that there appears to be some prospect that the accused may, while a forensic patient, be able to be repatriated to his native Taiwan. It is not necessary to determine what those prospects are given that I must direct myself, and I do direct myself, that I should not be influenced by the consequences of a special verdict of act proven but not criminally responsible in deciding on my verdict. Determination 1. It falls to me to first determine the question of whether the Crown has established (on the limited evidence available) the commission of the offences. If so satisfied I must, given the issue has been raised in this case, consider the question of whether a special verdict of act proven but not criminally responsible should be returned. 2. I direct myself as to the onus and standard of proof. The onus of proof falls on the Crown, with respect to each offence charged, to establish the commission of the offence. The standard to which the Crown must prove this is beyond reasonable doubt. 3. In the circumstances of this case I must consider first with respect to count 1 whether the accused by his voluntary act caused the death of the deceased and in relation to count 2 whether the accused by his voluntary act, wounded Shannan Vaughan. A wounding is any injury involving breaking or cutting of the interior layer of the skin. 4. In the present matter the evidence was adduced in documentary form. In circumstances where this course was the subject of agreement between the parties, each of whom was represented by very experienced and able counsel, the form of the evidence does not have any automatic impact on the weight to be given to the evidence. 5. That evidence establishes the accused was raised in Taiwan where he lived with his mother, father and sister. His mother said that the accused was diagnosed as a child with an emotional disorder and autism. His mother describes herself a student of Scientology. She said she was herself interested in Scientology and also thought it would be good for the accused. She attended classes in Taiwan with the accused but then decided it would be good for his health if he was completely removed from his environment in Taiwan. She made arrangements to come to Sydney with the accused to study at the Church of Scientology in Chatswood. The accused arrived in Australia with his mother, each of them on tourist visas on 18 December 2018. 6. The accused's mother rented a room within a house at Fullers Road, Chatswood, for herself and the accused. The premises were located about a 10-minute walk away from the Church of Scientology in Chatswood. 7. On 19 December 2018 the accused and his mother began attending classes at the Church of Scientology in Chatswood. Classes generally started about 10.00am and finished between 5.00pm and 10.00pm and were conducted seven days per week including public holidays. After about three days of attending classes it became apparent that the accused disagreed with what was being taught. It was agreed that he would stop attending classes but would do odd jobs around the grounds. 8. Around 1 January 2019 an employee of the Church of Scientology in Chatswood approached the accused's mother and told her that the accused had possession of a novel containing pornographic and violent themes on his MP3 player. The employee suggested that the accused's mother should delete the novel as it was not good for her son. The accused was not present during this conversation. As a result, the accused's mother spoke to the accused and told him that what he was reading was not good for him. 9. On Wednesday 2 January 2019, somewhere between 4.00am and 5.00am, the accused's mother took his MP3 player from his bed while the accused was sleeping. She deleted all files that contained written word but did not delete any music or images. Later that day the accused's mother attended classes at the Church of Scientology as usual and the accused did odd jobs around the grounds. 10. At about 8.15pm on that day, while his mother was in class, the accused entered the classroom and approached her. There were at the time two teachers and another student present. He said to her (presumably in Mandarin), "Was it you who deleted my data? You deleted my data, didn't you?" And his mother replied, "I didn't." The accused said, "It was you who deleted it. I'll give you 10 seconds to recover it." The accused then counted backwards from 10 and, while he did so, his mother said she could not recover the data. When he finished counting, the accused struck his mother on the head with a closed fist. His mother put her head down, placing both of her hands down over the top of her head. The accused struck her to the top of the head and shoulders a further approximately eight times, although the hits were apparently relatively soft and did not result in any injury or bruising. The accused then took his mother by the throat, then let go, whereupon his mother ran over to an area where a television was located and crouched in front of it. The accused followed his mother and kicked her legs and continued to punch her. He then reached for the television and tried to force it on top of his mother but was unable to do so as it was securely attached in place. He then pushed her head towards the television. Two supervisors from the Church of Scientology then took hold of the accused and his mother ran to another room. The accused was then taken back to his accommodation by staff of the Church of Scientology. 11. The accused reported to others that he had assaulted his mother because she had deleted the contents of his MP3 player. One of the persons to whom he reported this was a staff member by the name of Steve Zargon. Mr Zargon told the accused that they would come and see him the following day to help him recover the deleted files on his MP3 player and that he should not come to the church. Arrangements were made for the accused's mother to stay at the home of another student rather than go back to the premises in Fullers Road. 12. The next day, Thursday 3 January 2019, at about 10.00am, the accused's mother attended the Church of Scientology as normal. Somewhere between about 11.00am and 11.30am the accused spoke to two other residents at the Fullers Road premises about where he could find the two staff members from the church he had spoken to previously with respect to the deletion of the data on his MP3. At about 12.01pm the accused walked into the grounds of the Church of Scientology at Chatswood. The events that transpired were captured on closed-circuit television footage. While the footage itself has not been tendered before me, an agreed summary of the contents of that footage has. The following is taken from that agreed summary and other evidence. 13. At the time he entered the grounds of the Church of Scientology the accused was carrying a knife in the right pocket of his shorts. The blade of the knife was silver and the handle was white and grey. The blade was some 4.5 centimetres wide at its widest part and 14.6 centimetres long. The handle of the knife can be seen sticking out from the accused's pocket. As the accused walked along the driveway of the Church of Scientology, he, on multiple occasions, pulled his t-shirt over the handle of the knife in an attempt to conceal it from view. At this time, Shannan Vaughan was working as a security guard at the church. He was told that the accused was on church grounds and he was given the task of finding out why he was there. Mr Vaughan is unable to speak the accused's native Mandarin and asked Penny Teng to come with him to translate between him and the accused, to which Ms Teng agreed. 14. As the accused walked along the driveway he was approached by Mr Vaughan and Ms Teng. At around this time Joel Lawrence was using leaf blowers along the driveway. About a minute later Chih-Jen Yeh, also known as Aaron Yeh, approached. Chih-Jen Yeh is the deceased in this matter. The accused, the deceased, Mr Vaughan and Ms Teng were captured on the closed-circuit television conversing. The accused indicated to the others that he had an appointment with someone from the church who was supposed to come to his house and help him retrieve data from his MP3 player but that the person had failed to attend. In the course of this conversation it was established that the accused wanted to see Mr Zargon. Mr Zargon was apparently in a meeting at the time and unable to attend to the accused. The accused, the deceased, Mr Vaughan and Ms Teng continued talking for around 21 minutes. At some point during this time the deceased walked away from the group for a period of two minutes before returning. It was suggested to the accused that he go home and wait for Mr Zargon. The accused declined to do so. He was told by Ms Teng that, because of what he had done the previous evening, a reference to the assault on his mother, he would not be allowed into the building. The accused said that he was going to go inside and find Mr Zargon. He was then told that if he attempted to enter the building it would go into lockdown and no-one, including staff, would be able to enter. There was a period of silence for about 15 seconds following this. 15. At about 12.29pm, whilst the accused was still standing with the deceased, Mr Vaughan, and Ms Teng, he reached into his right pocket with his right hand and pulled out the knife. At this point, Mr Vaughan was standing with his hands behind his back and the deceased was standing with his hands by his side. The accused then slashed the knife towards Mr Vaughan with an overarm motion whilst simultaneously taking a step towards him. Mr Vaughan to this point had not noticed the knife. He reported thinking that he was about to be punched and consequently stepped back and attempted to deflect the knife by putting his hands in front of him. The knife connected with Mr Vaughan's right hand, causing a one-centimetre wound on the palm near his index finger. Immediately following this, the accused stabbed the deceased to the left side of his neck. The stab wound was about 4 centimetres wide and 8.5 centimetres deep. The deceased stepped back and placed his hand on his neck. Mr Vaughan heard the deceased making a gurgling sound. The accused then swung the knife in the direction of Ms Teng. She, as a result, sustained a small cut on her left forearm. She ran towards reception to call for help. The deceased was able to scramble to the other side of the driveway with the assistance of Mr Vaughan before falling to the ground, face down, and remaining motionless. The accused, still holding the knife in his right hand, ran towards Mr Vaughan. 16. The accused twice swung the knife towards Mr Vaughan but on each occasion Mr Vaughan was able to successfully take evasive action. Mr Lawrence, who, as earlier indicated, was in the vicinity, picked up his leaf blower and ran towards the accused. The accused turned towards Mr Lawrence, who held the leaf blower in front of him for protection. The accused then turned back to Mr Vaughan and swung the knife at him a further two times, Mr Vaughan again dodging the knife. Mr Lawrence held the leaf blower out in front of him, attempting to place it between the accused and Mr Vaughan. The accused turned towards Mr Lawrence, and then back towards Mr Vaughan. 17. The accused then walked towards Mr Vaughan while still holding the knife in his right hand. Mr Vaughan walked backwards away from the accused. Mr Lawrence approached the deceased and administered first aid by placing pressure on the wound. At this point the deceased was struggling to breathe and was unresponsive. 18. Timothy Rickman was having lunch in the garden nearby. He saw the events unfold and dialled triple-0. Edward Dickey was also in the vicinity with another person. He was also able to call triple-0 and the other person ran to call for help. Mr Vaughan held out his hands towards the accused, attempting to calm him. The accused again swung the knife at Mr Vaughan. 19. A number of people approached, one of whom heard the accused say in Mandarin words to the effect of "I need to find a man named Steve. I'll give you two minutes to find him. Otherwise I'll kill everyone else here." The situation continued in a similar vein, with the accused swinging the knife towards Mr Vaughan, Mr Vaughan moving backwards holding up his arms and attempting to calm the accused. 20. There were further attempts to calm him and further attacks made, whereby the accused swung the knife towards Mr Vaughan and others. This continued until about 12.36pm, when police arrived. They drew their weapons, and the accused was ordered to put the knife on the ground and to get down on the ground. The accused threw the knife down in front of police. He knelt on the ground, before being placed face down on the ground and handcuffed. Mr Vaughan assisted police to detain the accused by holding his legs. Police then relieved Mr Lawrence and maintained pressure on the deceased's neck. 21. At about 12.40pm paramedics arrived and attended on the deceased, who had remained unconscious the entire time. A CareFlight doctor attended the scene, and at 1.10pm the deceased was conveyed by ambulance to the Royal North Shore Hospital, arriving at 1.18pm. A green light corridor escort was arranged. He was, sadly, declared deceased shortly after arriving at the hospital. 22. Mr Vaughan was seen by paramedics. A small wound was located on his right hand. The wound was irrigated and dressed by paramedics. He was then taken to the Royal North Shore Hospital by ambulance. Conclusion: Commission of the offences 1. In relation to count 1, I am, on the limited evidence available, satisfied beyond reasonable doubt that the accused, by his voluntary act, killed the deceased. 2. In relation to count 2, I am, on the limited evidence available, satisfied beyond reasonable doubt that the accused by his voluntary act wounded Shannan Vaughan. 3. Given those matters, I am satisfied that the physical elements of the charge of murder in count 1 have been made out, and I am satisfied that the physical elements with respect to count 2, wound with intent to cause grievous bodily harm, are made out. 4. I am at this stage, in the particular circumstances of this case, required to consider whether the defence of mental health impairment has been made out, without considering the question of proof of the mental elements of either offence. This was the approach taken by, amongst others, Wilson J in R v Tonga at [15] and Johnson J in R v Siemek (No. 1) at [16]. The question of criminal responsibility and the defence of mental health or cognitive impairment 1. The accused was seen by Dr Adam Martin, forensic psychiatrist, with an interpreter on 26 May 2020. Dr Martin was provided with a briefing letter, the brief of evidence and medical documents relating to the accused. Dr Martin provided a report dated 17 June 2020 and a short supplementary report dated 12 November 2021. 2. Dr Yumna Dhansay, child and adolescent forensic psychiatrist, assessed the accused on 7 November 2019. She was provided with a briefing letter, the police facts sheet, a number of witness statements, the accused's record of interview, the accused's medical records from Royal North Shore Hospital for 3 and 4 January 2019, his medical records from Justice Health and the Forensic Mental Health Network from 10 January 2019 to September 2019. Dr Dhansay provided a report dated 14 December 2019 and a supplementary report dated 16 November 2021. 3. Pursuant to s 4(1) of the Act a person has a mental health impairment if: (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. 1. Pursuant to s 5(1), a person has a cognitive impairment if: (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. 1. Dr Martin and Dr Dhansay agree that the accused suffered at the relevant time from a mental health impairment and a cognitive impairment. 2. For the purposes of the availability of the defence of mental health impairment or cognitive impairment, it is sufficient to rely on the opinions of the psychiatrists based on the presence of the mental health impairment. 3. Dr Martin in his updated report said as follows: "In response to your request, within the framework of the Mental Health Impairment Cognitive Forensic Provisions Act 2020, in my view the accused can clearly be seen to have been a person suffering mental impairment at the time of the alleged offending. He would have had an ongoing disturbance of thought, mood and perception, regarded as significant for clinical diagnostic purposes, that impaired his judgment and behaviour. The mental health impairment arose from a psychotic disorder [schizophrenia], and his impairment was not caused by substance use. In my opinion, the mental health impairment would have been directly associated with the alleged offending and would have impacted on his capacity to appreciate the wrongfulness of his actions. While being aware of the nature and quality of the alleged act, he would have lacked capacity to reason with moderate degree of sense and composure about the act being wrong, as perceived by reasonable people. To this end, in my opinion, he has the defence of mental health impairment available to him." 1. Dr Dhansay, in her report of 16 November 2021, found: "I am of the opinion that [the accused] was likely suffering from the symptoms of schizophrenia (a psychotic condition) at the time of the index offences. Schizophrenia can be considered a 'mental health impairment'…" 1. With respect to knowledge of the nature and quality of the act she opined, "[the accused] appeared capable at the time of the index offence of comprehending the significance of slashing out the knife in the directions of the victims." However with respect to the second limb of the test she said: 2. "I am of the view the [the accused] did not know his actions were wrong. The presence of acute psychotic symptoms (hallucinations and delusions as described earlier) at the material time and the extreme attack upon strangers is consistent with [the accused] not being able to reflect with composure on whether a course of action is right or wrong." (emphasis in original) 3. It is therefore the opinion of both psychiatrists that the accused was not criminally responsible for either offence on the basis that he had, at least, a mental health impairment which had the effect that he did not know the act was wrong in the relevant sense. 4. I am not obliged to accept expert evidence. Where however, such evidence is not challenged or contradicted by any other evidence and is not otherwise inconsistent with other evidence, some clear basis for rejecting the evidence would need to be established. There is no such basis here. I am therefore satisfied on the balance of probabilities while at the time of the acts charged he was aware of the nature and quality of his act, he did not know that the act was wrong (in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). In these circumstances I must return a verdict in accordance with s 59(1)(b) of the Act. Verdict and Orders 1. With respect to each offence, I return a special verdict of act proven but not criminally responsible. 2. It is not appropriate to order the release of the accused at this point in time. Accordingly, it is appropriate that I refer the accused to the MHRT pursuant to s 34 of the Act. 3. I order that the accused be detained at the Austinmer Adolescent Unit of the Forensic Hospital (or such other place as may be recommended by the MHRT) until released by due process of law. 4. The following documents are referred to the MHRT: 1. This judgment; 2. The Crown Case Statement (Item 1 of exhibit A); 3. The report of Dr Adam Martin dated 17 June 2020 (Item 15 of exhibit A); 4. The report of Dr Adam Martin dated 12 November 2021 (Item 16 of exhibit A); 5. The report of Dr Yumna Dhansay dated 14 December 2019 (Item 17 of exhibit A); 6. The report of Dr Yumna Dhansay dated 16 November 2021 (Item 18 of exhibit A). ********** Amendments 06 December 2021 - [8] and [33] - name of mother deleted 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: 06 December 2021