Supreme Court New South Wales Medium Neutral Citation: R v Jawid [2022] NSWSC 788 Hearing dates: 14 June 2022 Date of orders: 21 June 2022 Decision date: 21 June 2022 Jurisdiction: Common Law Before: Davies J Decision: (1) I return a special verdict of act proven but not criminally responsible. (2) I order that the accused be detained pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law. (3) I refer the accused to the Mental Health Review Tribunal. Catchwords: CRIMINAL LAW – offences – murder – trial — judge alone – where accused stabbed the deceased multiple times - accused pleaded not guilty to murder but guilty to manslaughter by reason of substantial impairment – Crown asserted defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether Crown could assert defence of mental illness – where psychiatrists qualified on behalf of Crown and accused agreed that accused did not know that his acts of stabbing the deceased were wrong – where Crown could raise the defence in circumstances where accused had put mental illness in issue – proof was on the balance of probabilities whether raised by the accused or the Crown - special verdict of act proven but not criminally responsible Legislation Cited: Crimes Act 1900 (NSW) ss 4C, 23A Criminal Appeal Act 1912 (NSW) s 5(2) Criminal Procedure Act 1986 (NSW) s 132 Evidence Act 1995 (NSW) ss 141, 191 Interpretation Act 1987 (NSW) s 35 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ss 4, 28, 29, 30, 33 Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 R v Ayoub [1984] 2 NSWLR 511 R v Brewer (No 2) [2015] NSWSC 1547 R v Cottle [1958] NZLR 999 R v Damic [1982] 2 NSWLR 750 R v Davidson (No 2) [2019] NSWSC 2011 R v Eyuboglu (No 2) [2019] NSWSC 285 R v Foy (1922) 39 WN (NSW) 21 R v Issa (Unrep., Supreme Court of NSW, Sperling J, 16 October 1995) R v Jennings [2005] NSWSC 789 R v Joyce [1970] SASR 184 R v Meddings [1966] VR 306 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 R v S [1979] 2 NSWLR 1 R v Waszczuk [2012] NSWSC 1080 The Queen v Falconer (1990) 171 CLR 30; [1990] HCA 49 Texts Cited: Nil Category: Principal judgment Parties: Crown Jawid Jawid (Accused) Representation: Counsel: P Hogan (Crown) G James QC, E James & A Sapienza (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Oxford Lawyers (Accused) File Number(s): 2020/209572 Publication restriction: Nil Judgment 1. Jawid Jawid was arraigned before me on 14 June 2022 charged with the following offence: That on 16 July 2020, at Pyrmont in the State of New South Wales, he did murder Mohammad Bashir Zaheer. 1. To that offence he pleaded not guilty to murder but guilty of manslaughter by reason of substantial impairment. 2. The trial was conducted without a jury by consent of the parties, and an order was made by the Court to that effect pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW). 3. The issue at the trial was whether the accused had a defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act") which would result in a special verdict, as the Crown contended, or whether the accused was guilty only of manslaughter by reason of a substantial mental health impairment under s 23A of the Crimes Act 1900 (NSW), as the accused contended. References in this judgment to "s 28" and "s 23A" are references to those two provisions. 4. The trial was conducted on the basis of agreed facts pursuant to s 191 of the Evidence Act 1995 (NSW), together with evidence given by two forensic psychiatrists, Dr Kerri Eagle engaged by the Crown, and Dr Stephen Allnutt, engaged by the accused. Each of the psychiatrists had prepared a report which was received into evidence. In addition, the psychiatrists gave concurrent evidence and answered questions from both the Crown and Mr James QC who appeared for the accused. Legal principles 1. This is a criminal trial. In a criminal trial the Crown carries the burden of proving the guilt of the accused to the standard of beyond reasonable doubt. The accused has no obligation to prove anything subject to limited exceptions. The burden rests upon the Crown in respect of every element of the offence with which the accused is charged. Where a defence of substantial impairment is raised by the accused, the onus is on the accused to prove that he is not liable to be convicted of murder (s 23A(4)), and that proof is on the balance of probabilities: R v Ayoub [1984] 2 NSWLR 511 at 515. 2. In order to prove the charge of murder, the Crown must prove that there was a voluntary act of the accused that caused the death of the deceased, that the act was carried out with an intention either to kill or to cause really serious bodily harm or was done with reckless indifference to life. The Crown case was not based on reckless indifference but on an intention at least to inflict really serious injury. The Crown must also prove that the act of the accused was not done in self-defence. There is no evidence in the present case to suggest that self-defence is an issue. 3. The Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. Subject to the discussion later in this judgment, the obligation on the Crown is only to prove the elements of the charge beyond reasonable doubt. 4. In reaching my verdict, I must act impartially and dispassionately. I must not let emotion sway my judgment. Neither prejudice nor sympathy has any role to play in the determination of this case. My task must be undertaken free of prejudice or sympathy in any of its forms. 5. The one issue in this trial is whether, on the one hand, the accused is not criminally responsible for the offence by reason of a mental health impairment or, on the other hand, whether by reason of a mental health impairment which is so substantial liability for murder should be reduced to manslaughter. What is unusual about the issue in this trial is that it is the Crown which contends that the accused should be found not to be criminally responsible, and it is the defence who contends that the accused is guilty of manslaughter. 6. The issue is complicated by the defence submission that the Crown cannot run the defence contained in s 28, but that, if it did so, it would have to prove the impairment beyond reasonable doubt. I will return to the parties' submissions later in the judgment. Background 1. The agreed facts can be summarised as follows: 2. The deceased was born in Kabul, Afghanistan in June 1976. He left Afghanistan and moved to India with his family as a teenager, before immigrating to Australia when he was 20 or 21 years old. Whilst he was in India, the deceased met the accused. They became friends. 3. Since about 2001, the deceased worked at the Mirage Apartments complex in Pyrmont, initially as a security guard and later as the Building Manager. He lived on site, and over time had occupied different units within the complex. 4. The accused commenced working at the Mirage complex in the employ of the deceased. He initially worked as a security guard but, at the time he committed the offence, he was employed as an Assistant Building Manager. 5. Around 2017, the deceased sacked the accused because of the accused's behaviour and drinking outside work. The deceased was concerned that the accused would bring those problems to work. About six months later, the deceased gave the accused another chance and allowed him to return to his role at the Mirage Apartments. 6. On 18 August 2018, the accused corresponded on Facebook Messenger with a friend. During the exchange, the accused wrote a message which read, "I had a fight with bashir too he was one day too much bossy next I went put knife on his naek (sic) I was about to mil him swear to ahllah but stop my self bcz he is my best friend and I love him so since then we don't talk much just see work we say Salam and that's 8 (sic)." 7. About 2-3 months before 16 July 2020, the deceased told his long-term partner, Winnie Sheen, "I'm not good with Jawid. He has been playing with a knife. Not good with Jawid". The deceased and Ms Sheen both lived in different apartments in the Mirage Apartments complex. 8. From early June 2020, the deceased developed a habit (which he had not had previously) of locking the door to his apartment. He told Ms Sheen that he did so because he was worried about the accused. 9. At 3.53am on 22 June 2020, the accused sent the deceased a message that read, "I can't work today but we need to talk". That evening, he sent messages which read, "End of the day after all I love u" (at 6.28pm) and "U make make me cry unfair" (at 6.29pm). The deceased did not respond. 10. On 24 June 2020, the accused sent a series of text messages to the deceased between 12.23am and 1.31am. The messages, whilst not making much sense, seemed to suggest that the accused thought that the deceased might want to kill him, that the accused thought the deceased had problems, but that the accused loved the deceased. The deceased does not appear to have responded to those messages. 11. Later the same morning, the deceased spoke to his friend Carmel Dever. He told her he that was concerned about someone and said, "I need to try and get help for someone who thinks I am going to hurt him". Ms Dever sent the deceased the number for the Mental Health Line later the same day. 12. On 11 July 2020, a woman called Lesley Strydom spoke with the deceased. He told her that the accused had been going off the rails, the accused blamed him for everything that was going wrong in his life, and he considered that the deceased was a curse. The deceased said that the accused had told the deceased that he was going to kill him. 13. At 6.53am on 14 July 2020, the accused sent the deceased a message asking why his shifts were being cut. On that evening, the accused called a man named Yero Sall. He asked Mr Sall to come to his house to talk. The accused told Mr Sall that he believed that he was about to be terminated from work. 14. At 10.46am on 15 July 2020, the accused attended the Commonwealth Bank branch at Carlingford Court. Commonwealth Bank records show that the accused withdrew $3,400. 15. At about 4pm on that day, the accused returned to Carlingford Court where he purchased two large chef's knives from Target. The accused purchased the first knife, a 20cm German quality chef's knife, and paid the register attendant in cash. Two minutes later, he purchased a second knife from the same attendant: a 18cm steel Sansoku knife. The accused again paid cash. The Sansoku knife was later found at the scene having been used by the accused to stab the deceased. 16. At 3.10pm, about an hour before he purchased the two knives, the accused made an eight-minute phone call to the mobile phone of his lawyer Zemarai Khatiz. 17. At 6.47pm on that day, the accused sent the deceased a message which read, "If it makes u happy be happy my friend". At 6.54pm, he sent a second message which read, "I'm sure this makes u sad (emojis)". 16 July 2020: The day of the murder 1. On the morning of 16 July 2020, the accused drove his white Holden Viva from his house in Telopea to the Mirage Apartments. He stopped on his way at a 7/11 service station in West Ryde to purchase a coffee. The accused was wearing a navy-blue suit and a tie. 2. At 7.50 am, the accused parked his car near the IGA on Murray Street Pyrmont, close to the corner of Bunn Street. He removed an unknown item from the front passenger side door before walking to the lobby of the Mirage Apartments and into the office behind the concierge desk. At this time, the deceased was also in the lobby area. 3. At about 7.55am, Sarka Slavickova and Matthew Duniam entered the lobby of the Mirage Apartments and walked towards the lifts. They saw the deceased and the accused standing in front of the concierge desk having an argument in Arabic. Whilst waiting for the lift to arrive, Ms Slavickova and Mr Duniam noticed the deceased back away from the accused. They saw the accused, who was holding a chef's knife, move towards the deceased. The accused raised the knife above his shoulder and lunged the knife several times at the deceased. 4. Ms Slavickova and Mr Duniam noticed blood coming from the deceased's head and Ms Slavickova yelled out to Mr Duniam "He has a knife, we have to run". Fearing for their safety, they ran from the building. They notified a security guard at the nearby Ibis Hotel. Ms Slavickova called Triple-0. The call was logged at 7.57am. 5. The accused stabbed the deceased several times in the head, neck and chest. The deceased's screams could be heard by several residents of the Mirage Apartments. The deceased fell to the ground bleeding profusely from the wounds and lost consciousness. 6. Michael Burokas, who observed this from the mezzanine level, called out to the accused and asked, "What happened?" The accused did not respond. Mr Burokas described him as appearing "very calm and focused". At the time, Mr Burokas assumed the accused was rendering assistance to the deceased. 7. Mr Burokas returned to his unit briefly. When he walked back to the mezzanine a minute later, he saw the accused standing in the lobby about four metres away from where the body of the deceased lay. He was holding a mobile phone to his left ear. Mr Burokas called out to the accused, again asking "What happened?" The accused did not answer. 8. At about the same time, Dr Joseph Chan exited the lifts into the lobby. He saw the deceased lying on the ground and did not see any indications of life. Due to concerns for his own safety, he left the building. As he did so, he saw the accused, who was standing just outside the building on Murray Street smoking. Dr Chan noticed a few drops of blood on the floor in the area around where the accused was standing. He saw drops of blood on the accused's face. Dr Chan described the accused in the following terms: "[he] appeared agitated, he was pacing and was restless. He looked anxious and slightly angry in his facial expressions as if something was on his mind. I noticed he was breathing heavily and fast". 9. Dr Chan spoke to the accused and asked him, "Are you ok?". The accused replied, "Call the police". Dr Chan moved away from the accused and called Triple-0. The call was logged at 7.58am. As he was on the phone, Dr Chan saw the accused walk down Murray Street in the direction of the Novotel. 10. Jeannette Shaw came downstairs and started to walk towards Murray Street. As she did so, she heard Ms Slavickova yell out "Call the police". As Ms Shaw was standing in the driveway of the Novotel Hotel (on Murray Street), she noticed the accused (whom she recognised as the security guard for the Mirage Apartments) come out of the lobby and stand under the Mirage sign. She walked over to the accused and they had the following conversation: Shaw: What happened? Accused: Bashir die. Shaw: How come? Accused: I stab him. Shaw: Huh? Accused: I kill him (Shaw then noticed the body of the deceased in the lobby). Shaw: Did you call police? Accused: He called (pointing to Dr Chan). 1. At the time, the accused was holding a coffee cup. Ms Shaw noticed his hands had blood on them and they were shaking. She described the accused's demeanour as "very calm", "very unanimated", and said that he appeared "guilty and sad" when he said, "I kill him". The accused then walked to his car. At 8.01am, the accused drove away from the area. 2. There is no evidence that the accused was under the influence of drugs or alcohol at the time he committed the offence. None of the witnesses who saw and/or spoke to the accused at the time of or immediately after the murder described him as appearing intoxicated. 3. At 8.03am, police and paramedics arrived the Mirage Apartments complex and located the deceased lying in the lobby. The deceased had significant traumatic injuries to his face and neck, a severe stab wound to his left hip, a laceration to his lower back and several wounds to his right arm. He was pronounced dead at the scene due to his injuries, and as result of the sustained irreversible blood flow. The deceased's trachea and external jugular veins appeared to have been severed. 4. Police located the Sansoku knife (purchased by the accused from Target the previous day) on a console table in the lobby, metres away from the deceased's body. The tip of the knife was visibly bent. The knife was later analysed. DNA recovered from areas on the blood-stained knife was found to have the same profile as that of the deceased. 5. A crime scene was established, and a crime scene examination was conducted by specialist officers. Post-Offence conduct 1. At 8:06am, as he drove away from the crime scene, the accused attempted to call the mobile phone of his lawyer Mr Khatiz. The call was unsuccessful. About 20 seconds later (8:07am), the accused again tried to call his lawyer. This time the call was successful. It lasted over five minutes). The calls to his lawyer, Mr Khatiz were the first phone calls made by the accused after the stabbing. 2. At 8.14am, the applicant called his aunt, Malalai Malalai. The call lasted 13 minutes. 3. The accused then drove to Bondi Beach where he left his car. He then travelled to Parramatta. He met his aunt in Parramatta later that morning where she gave him a sum of money. Arrest 1. From about 6.28pm on the same day, the accused was captured in various portions of CCTV footage walking around the Parramatta CBD. Shortly before 7.07pm, he was found by a passer-by lying down in a car park on Macquarie Lane. He appeared to be heavily affected by alcohol. There was a half-full cup of what appeared to be beer nearby, and he was snoring. The passer-by called Triple-0 and an ambulance was dispatched to the scene. 2. The accused was treated by ambulance officers who observed that he appeared to be affected by alcohol. Police were notified and attended the location. Upon confirmation of the accused's identity, he was placed under arrest. Police observed the accused's clothing, hands and iPhone to be stained with blood. The accused's phone was seized by police. 3. The accused was searched by police. They located and seized a number of items including the following: * Bloody tissues (pocket) * A navy-blue jacket with blood stains. The deceased's DNA was located on the jacket. * A packet of Bond Street Classic cigarettes * A tie with blood stains * A (right) shoe with blood throughout. The deceased's DNA was located on the shoe. * A wallet containing numerous membership cards in the name of the accused. * Medication (Tramadol hydrochloride 200mg (a painkiller), Zopicione 7.5mg (a sleeping tablet) and Escitalopram 10mg (a drug used to treat depression and anxiety)) * An Apple iPhone on which it was noted there were blood stains. 1. At the time of his arrest, the accused made unsolicited admissions in the presence of police and ambulance officers to having stabbed the deceased. His manner of speech was described by one officer as rambling and slurred. As he spoke, the accused started kicking and thrashing around on the ambulance bed. He was held still by a number of officers while restraints were placed on him. He yelled and cried at times while at other times he mumbled and slurred his words. 2. The admissions made by the accused were recorded using body-worn video. They included: Accused: If he's alive, fuckin' good luck for him Accused: But I, fuckin' stabbed him, fuckin', too many times, fuckin', on the neck Accused: I stab him too many times on the neck Accused: I want to finish him. Yeah, I did. I did finish him Accused: I want to finish him. I, fuckin' stabbed him, fuckin' in the neck, yeah too many times, yeah. I wanna admit, yeah. Take it, fuckin', write down your statement, yeah Accused: I fuckin' uh uh, stabbed him on his neck, yeah, with, with the knife. I bought the knife, fuckin', yesterday from, fuckin', Kmart, I bought two knife, actually, yeah, but I took, fuckin' one knife with me. I fuckin' give it to me, fuckin', on the neck yeah. I, I been keep giving to him, fuckin', on the nexk, yeah, yes, write it down… Yeah, I want to kill this motherfucker. I want to kill the, fuckin', my best friend, he's my friend, fuck. But, if, if he didn't, he didn't die, bad luck for me, yeah, bad luck for me, yeah. This piece of shit, this motherfucker, I want to kill him, yeah. He's a pussy to me, he's a pussy, yeah. Write it down, whatever, fuckin', you wanna write down, yeah, write it down". Accused: I would look into the eyes, he telling me he didn't do nothing. That piece of shit, yeah, but he's a big time criminal, he's a big time criminal… Accused: I kill my best friend. I kill. I killed him. I kill fuckin' my best friend… I fuckin' give it to him, fuckin', on the neck just keep fuckin', I stab him fuckin' on the, on the neck. I did. I did that to him. Yeah. My best friend. My brother 1. During the course of the same conversation, the accused told police he was a "big drunk". In response to questions about whether he had driven to Parramatta, the accused told police that his car was at Bondi Beach. 2. At about 7.38pm on 16 July 2020, Police executed a search warranted at the Telopea residence, where the accused resided with his aunt. A number of items were located and seized from the bedroom occupied by the accused including, inter alia: * Dark blue oxford suit pant and jacket; * A black handled 20 cm chef's knife was found wrapped in a pair of jeans behind the door; * A Target bag containing a receipt as well as two chef's knife boxes was found in the bottom of the wardrobe. The boxes and the receipt corresponded to the two knives purchased by the accused from Target using cash on 15 July 2020. Both knives had been removed from the packaging and were found elsewhere (one wrapped in the pair of jeans and the other at the crime scene). DNA recovered from tapelifts taken of the Target receipt and the Sansoku knife box was found to have the same profile as that of the accused. 1. Whilst at the hospital the accused made further admissions in relation to the offence and discussed his motivation for killing the deceased. Between 9.04pm and 9.58pm, he had a lengthy conversation with Senior Constable Blackshaw which was recorded on body-worn video. The accused spoke of the deceased having "tortured" him over a period of months. He said he had stabbed the deceased in the neck. He claimed the deceased had taken everything from him. He said the deceased had naked pictures of him. He claimed to have been sodomised with a bottle, but did not claim that the deceased was responsible as far as could be understood. However, he said that he believed that the deceased was responsible for taking and sharing naked pictures of him (the accused) which were obtained while he was intoxicated. 2. The accused told SC Blackshaw that, a day earlier, anticipating that he may be arrested as a result of what he planned to do to the deceased, he had transferred an amount of money to his aunt for her treatment. The accused's bank records confirm that he made a withdrawal of $3,400 the day before the murder, as noted at [25]. The accused said that he was going through a hard time, but that the deceased was "torturing him". 3. The accused made allegations about the deceased's alleged illegal business practices including underpayment of wages both to himself and others. He described his actions in killing the deceased as "clean[ing] the dirt from society". 4. The accused admitted that he was responsible for killing the deceased, and asked SC Blackshaw what sentence he was going to get. He later asked SC Blackshaw whether he would be charged. The accused acknowledged that "he did it" and said, "Give me fuckin' sentence for 20 years. I did it, yeah". 5. The accused told SC Blackshaw that it was not an accident, that in fact he had purchased the knife intending to use it to attack the deceased. This was because, in his words: "He fucked my dignity, he fucked my life". 1. SC Blackshaw had a further conversation with the accused at 12.13am on 17 July 2020. The conversation was again recorded on body worn video. In it, the accused claimed that people were following him, and that a gang was after him, but he didn't know who they were. He said he had been taking too many drugs, and had started drinking. He complained about the shifts he was given at work by the deceased when the deceased knew he needed to look after his aunt who had stage 4 cancer. He said "they" were playing with his head, and the deceased just wanted to get him drunk so he could kill him. 2. The accused also told SC Blackshaw that he had spoken to his lawyer the previous day, and his lawyer had told him the lawyer would come with him to hand himself in. During both conversations with SC Blackshaw, the accused said that he had consumed two bottles of whisky after the offence and before he was arrested by police in Parramatta. 3. Whilst the accused was at hospital, police located and seized a number of items from the accused, which were later forensically examined, including a pair of navy-blue pants and a white shirt. The deceased's DNA was located on both pieces of clothing. 4. The accused was assessed by doctors and treated for a superficial wound to his right index finger. As he was being examined, the accused asked the doctor about mental health and asked him to help him out, saying "Come on Doc. Mental health, what do you think? Sign some papers and say it's mental health. I have done this in the past can't we just do it again?" and "Ah I have beaten this sort of thing six times. I have a good lawyer he will get me off no problems, mental health is easy, what you think". 5. After being examined, the accused was released into police custody. 6. At about 1.15am on 17 July 2020, the accused was taken to Parramatta Police Station. The accused was still agitated and highly intoxicated. He told the custody manager "please, I did this crime at 9 in the morning. They arrest me at 8 [pm] somewhere I don't know I'm drunk…I killed a guy, I know I'm fucked. It's just too much". 7. At 1.20am, the accused began headbutting the perspex door of the dock. He was yelling, "I am mental, mental, mental". Constable Byrne activated his body- worn video camera and had a conversation with the accused. The accused complained of being in pain. He headbutted the door again but a short time later, after a conversation with Sergeant Thomas, he appeared to fall asleep. 8. At 3.37pm on 17 July 2020, specialist officers conducted a forensic procedure on the accused at Parramatta Police Station. During the course of that procedure, swabs were taken of the accused's hands and he was photographed. Prior to that procedure, the accused was given the opportunity to participate in a lengthy consultation with his solicitor, Mr Khatiz, who was present at the Police Station. 9. At 5.00pm that day, the accused participated in an electronically recorded interview. His solicitor, Mr Khatiz was present throughout the interview. The accused said, inter alia: * He left his country (Afghanistan) in 1995 and went to India where he met the deceased. He had known the deceased for 25 years. * He came to Australia in 2001. At the time, he was still in contact with the deceased who helped him find accommodation when he arrived in Sydney. Sometime after his arrival, they lived together for a period. * He has worked with the deceased since 2003, initially doing security work. He left the job for a year or two but later went back. * He and the deceased had had disagreements over the years when one or other of them had become involved with a woman the other coveted. * For the last six years, the deceased had been "sending gangs, bikies and stuff" after him and providing him with $2,000 worth of drugs knowing that he had depression and that, while he was not an addict, he "use[d] everything". The accused sent people over to him after he started to get paranoid. * The deceased worked seven days a week and had a lot of money. He had security and management contracts including one worth $2 million and another one in Balmain. The deceased owned six units in the building and lived in the penthouse himself. The deceased made money on the side, arranging plumbers for residents of the complex and arranging for things to be fixed. * The deceased sent people to try and make him paranoid as a result of which he (the accused) started calling the police (to report his concerns). The police would ask him who the people were, but he didn't know so he was unable to tell them. * The accused went to Holland for 10 months to spend time with family. When he returned, a man called Ahmad brought him some drugs. The accused said he stopped smoking "that shit" and that "when I smoke it makes me, sort of bad", but the deceased started sending people to play with his head. * The accused said that once, after Ahmad had come to his place, he received a message on his phone which he regarded as evidence (of what had been happening to him). He took the number to a police station, and police called it but said that the number was "clean" and unconnected with anything criminal. * The deceased would give him a hard time at work "over nothing" knowing that if he became upset, he would drink or take drugs. * The accused said that he believed the deceased paid people to drug him and that, after he had been drugged, they took his naked picture and shared it on Facebook Messenger. He said, "that's the most reason it makes me do that to him" (referring to what motivated him to murder the deceased). * The accused said that the previous year, he had a fight with the deceased and confronted him with a knife, but they later reconciled and became best friends again. * The accused spoke of the fact that, when his aunt was sick, the deceased didn't come to the hospital (despite the closeness of their relationship). After he had been at the hospital with his aunt, the accused began to notice things happening at home (like gloves going missing) and believed the deceased was "playing with [his] head", thinking that if he became stressed, he would start using alcohol and drugs again. He later said that he reported the matter to Granville Police. The accused believed that the deceased became aware that the accused had contacted the police, because the accused had made the call from the office at work and that, having become aware that the accused had reported him to the police, the deceased asked to come and visit the accused that night, and they had dinner together. * Speaking of the deceased, the accused said, "This guy destroyed my life, my last 6 years". The accused said that he would sleep with a knife under his pillow, and that he suffered from depression. * He became "really paranoid" that the deceased was sharing videos and "stuff" that had been taken when he was drunk; that people had taken pictures of him and "probably" raped him, and "probably" put something like a bottle in his "arse". * The accused became aware that another employee, Yiro, was applying for the security contract (at the Mirage Apartments). Yiro told him "everything" including that the contract was worth $200,000 a year even though the deceased was only paying security guards $16 or $17 an hour in cash and no superannuation. * Two weeks previously, the deceased asked the accused whether he was still in contact with a girl they both knew, Veno, who lived in Canada. He told the deceased he was. The deceased asked him for her number, which the accused gave him, after which he (the accused) stopped receiving messages from her. As a result, the accused said he became worried that the deceased had done something; that he had shared the video he had of him with Veno. * Two weeks previously, the deceased installed a camera in reception. The accused became concerned that the deceased would listen in on his private conversations with friends and family. * Two weeks previously, the accused really wanted to have a fight with the deceased. Three weeks ago, he had quit drugs and started exercising because he didn't want to be on drugs if he ended up in gaol. * In May, the accused sent a message to Yiro and told him that, if anything happened to him, the deceased was responsible, and that he should show the message to police. * The accused said he was already stressed because of his aunt who depended on him, and because the deceased tried to send a video to the girl he liked. He said the deceased "take everything from me" and "that was too much". * The accused said that he put a post on Facebook identifying the deceased as someone who had been "stabbing him in the back" for the last five years. He spoke to the deceased, who he believed had seen the post, but did not mention it. He called the deceased to make sure he was not fighting with him, and he believed the deceased was scared that he (the accused) was fighting with him. * When asked by the interviewing officers to talk about what he did, the accused said that he didn't care that the deceased had sent people to him, he could forgive that, but the deceased was playing with his dignity and shared his naked picture or rape with his (the accused's) girlfriend, as a result of which she would not marry him, which "was really killing me". * Two or three weeks previously, he had ended up in hospital, dying. Around that time he called the deceased and asked him why he was doing it to him. The deceased responded that the accused should think back to what he (the accused) had done to him. He then sent a number of messages to the deceased. * Speaking of the same incident, the accused said that two weeks previously he was texting the deceased and telling him that he had wronged him, and that the only way he (the deceased) could win was to kill him (the accused). The accused said it was "too much" and "I decided to kill the guy". The accused said, "I told him kill me or I'll kill you". * The accused said that he texted the deceased from Bondi at about 10pm or 12pm the other night, and asked him to come and finish the six-year game, but that he did not receive a reply. * The accused told police that on the day of the murder he arrived at the Mirage at 9am, having driven there in his aunt's white car. He and the deceased argued, and he asked the deceased, "Why you doing all these things?" before telling him "Bashir, I'll kill you" to which the deceased responded "I'm already dead, what you want to kill me, I'm already dead". He then stabbed the deceased in the lobby in front of the lifts, as a result of which the deceased fell to the ground. * The accused said that after the murder he waited for six minutes; that he spoke to a male from unit 53 and said, "call the police"; and that he told Janice (a reference to Jeanette Shaw), "Bashir is dead…. said killed… call the police". He had a cigarette and a coffee and waited for 5 or 6 minutes, but no one came so he went to sit in his car. He then decided to enjoy his last few hours of freedom. Post-mortem examination 1. A post-mortem was conducted on 20 July 2020 and an interim Cause of Death Report was prepared by Dr Szentmariay. The report listed the cause of death as "multiple stab wounds" and noted that there were numerous stab wounds to the deceased's neck, torso and extremities. The deceased was noted to have sustained 25 stab wounds including multiple wounds to his head and neck, right arm and shoulder, chest, left hip and buttocks. Legislation 1. Part 3 of the MHCIFP Act is headed "Defence of mental health impairment or cognitive impairment". Section 28 within that Part provides: 28 Defence of mental health impairment or cognitive impairment (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). (2) 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. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions. 1. Section 23A of the Crimes Act provides: 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. (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) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death. (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 not criminally responsible because of mental health impairment or cognitive impairment, 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) For the purposes of this section, 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 (9) or for other reasons. (9) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder. 1. The definition of "mental health impairment" is identical in s 4C of the Crimes Act and Section 4 of the MHCIFP Act. The definition is: (1) For the purposes of this 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. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. Submissions 1. Mr James QC, for the accused, submitted that neither the case law nor the MHCIFP Act supported the proposition that it is open to the Crown both to prosecute and defend in the same case. He pointed to the fact that Part 3 of the MHCIFP Act deals with the "Defence of mental health impairment or cognitive impairment". He submitted that the provisions in the MHCIFP Act are a code, and nowhere does the Act authorise or permit the Crown to raise a defence of mental illness. 2. Mr James submitted that, insofar as intent has to be proved, it must be proved beyond reasonable doubt. He submitted that one cannot elide the necessity to prove the intent by mounting a case of mental illness, and proving that only on the balance of probabilities. 3. Mr James submitted that it was the responsibility of the Crown to prove all of the elements of the offence beyond reasonable doubt. That included negating defences such as self-defence. He submitted that there was nothing to suggest that the defence of mental illness was in a different category. He submitted that it was to go a lot further to suggest that the Crown could in the first instance raise the defence, and to do so contrary to s 141 of the Evidence Act 1995 (NSW), which requires proof beyond reasonable doubt for the Crown in criminal proceedings. 4. The Crown submitted that R v Brewer (No 2) [2015] NSWSC 1547 supported two propositions. First, if a question arises as to the accused's mental state, evidence of it can be adduced by the defence, the Crown or the judge. Secondly, the standard of proof that the accused was not criminally responsible was on the balance of probabilities. The Crown submitted that further support for the first matter was to be found in R v Foy (1922) 39 WN (NSW) 21. 5. The Crown submitted that the psychiatric evidence demonstrated that the accused was not able to reason as to the wrongfulness of his actions, that this was the effect of a mental health impairment, and in that way the accused was not criminally responsible in accordance with s 28. Is the Crown permitted to raise a defence of mental illness? 1. It is certainly true that nothing in Pt 3 of the MHCIFP Act expressly gives to the Crown the right to assert that an accused is not criminally responsible by reason of a mental health impairment. I accept also that headings to Parts of an Act are to be taken to be part of the Act: s 35(1)(a) Interpretation Act 1987 (NSW). The significance of that is that what is contained in s 28 is to be regarded as a defence to a charge. It might be thought, therefore, that it is not appropriate for the Crown to be raising a defence to a charge that it brings against an accused. 2. However, the issue of mental illness can be regarded as in a category of its own as far as defences go. This is particularly because the mental illness of an accused can be put to the jury even against the wishes of an accused, and by his or her own counsel, by the Crown or by the trial judge. 3. In Foy, the Court of Criminal Appeal was construing s 5(2) of the Criminal Appeal Act 1912 (NSW). That subsection provides: For the purposes of this Act a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence. (emphasis added) The issue was whether the defence had been set up by the accused. If it was, and the accused was acquitted on the ground of his mental illness, no appeal was available. 1. Chief Justice Cullen said (at 22): The legislature clearly had in contemplation cases in which a person put on his trial for crime, and therefore one whose sanity at the time of the trial, is not in question, though he does not set up that he was insane at the time of the offence charged, may be seen on the actual evidence to have been insane at that time. And as it would be contrary to justice that a person should be convicted of crime committed whilst he was insane, merely because he himself does not set up that defence, an issue on the question might properly be left to the jury though he relies at the trial on a defence on the merits only. 1. It is clear also that a trial judge may call a witness in relation to the issue of the accused's mental illness even where the accused does not wish to do so: R v Damic [1982] 2 NSWLR 750 at 754, 764 and 765; R v Issa (Unrep., Supreme Court of NSW, Sperling J, 16 October 1995); R v Waszczuk [2012] NSWSC 1080 at [11]; R v Meddings [1966] VR 306. 2. In Brewer (No 2) counsel for the accused was instructed not to run a defence of mental illness. Counsel accepted, however, that the defence was squarely raised by the evidence of two psychiatrists, and the trial judge in the judge-alone trial found the accused not guilty on the ground of mental illness. 3. Although neither Sperling J in Issa, Adamson J in Waszczuk nor Sholl J in Meddings considered that the Crown could raise, or argue in favour of, a finding of not guilty by reason of mental illness, other authority suggests that the position is otherwise. 4. In R v Ayoub Street CJ (with whom Slattery J agreed) said (at 512-515): This is an appeal against a verdict of not guilty on the ground of mental illness. The appellant was charged with murdering his father. He pleaded not guilty and a defence of diminished responsibility was advanced on his behalf. The jury ultimately returned the verdict that has been stated. … At no stage did counsel for the accused advance a defence of mental illness, nor was the trial judge asked on behalf of the accused to put that defence to the jury in his summing-up. On the other hand, the Crown contended that the proper verdict, on this evidence, was one of not guilty on the ground of mental illness. The sole ground of appeal that is brought forward in the present case involves the determination of the onus of proof which should be put to the jury in a situation such as this, namely, where the Crown seeks a verdict of not guilty on the ground of mental illness and the accused, for his part, does not advance this defence. … Mr Blanch QC, who appears for the appellant, contends that the learned judge erred in failing to direct the jury that, in order to return a verdict of not guilty on the ground of mental illness where that verdict was not sought by the accused, the Crown must prove mental illness beyond reasonable doubt. The question raised in the appeal does not appear to have arisen for determination in this State on a prior occasion. In England it has been held that where a defence of diminished responsibility is put forward by an accused person (which must be proved on the balance of probabilities) and the Crown contends that the accused was insane, the Crown must establish its contention beyond reasonable doubt: R v Grant (1960) Crim LR 424. This case is cited as authority for that proposition in Archbold, Pleading, Evidence & Practice in Criminal Cases, 39th ed (1976) par 2484 at 1040. To the contrary effect is a dictum by Lord Denning in Bratty v Attorney-General for Northern Ireland [1963] AC 386 where at 411, 412, his Lordship said: "My Lords, I think that Devlin J. was quite right in Kemp's case [1957] 1 Q.B. 399 in putting the question of insanity to the jury, even though it had not been raised by the defence. When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue the state of mind of the accused man: and thereupon it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large. The Trial of Lunatics Act, 1883, says that where 'it is given in evidence' that the person was insane, the jury shall return a verdict of guilty but insane. It does not say that the defence alone can give such evidence. The prosecution can give it. And in either case inasmuch as the verdict is one of acquittal, see Felstead v. Rex [1914] A.C. 534; 30 T.L.R. 469; 10 Cr. App. R. 129 it should be decided on the balance of probabilities. So it has been held in England that where a man sets up a defence of diminished responsibility, the prosecution are entitled to show that he was insane, see Reg. v. Bastian [1958] 1 W.L.R. 413; [1958] 1 All E.R. 568; 42 Cr. App. R. 75 and conversely, when a man sets up insanity, the prosecution are entitled to give evidence of diminished responsibility, see Reg. v. Nott (1958) 43 Cr. App. R. 8." … During the course of argument reference was made to the terms of the Crimes Act 1900, s 23A. Section 23A(5) permits evidence to be "offered" by the Crown tending to prove mental illness in a case in which diminished responsibility is advanced. This section does not appear to me to cast any useful light upon the onus of proof in a case where the Crown adopts this course, or, for that matter, in a case where the Crown relies upon the evidence adduced by the accused as proof of mental illness. In my view there is only one onus of proof to be applied in a criminal trial when an issue arises whether the accused should be found not guilty on the ground of mental illness. Whether that contention be advanced by the accused, by the Crown, or put by the judge of his own motion to the jury, the onus in each case is one of proof on the balance of probabilities. The suggestion that the onus differs according to the source of this defence involves a distortion of criminal process. The jury's task is to decide the issues placed before it according to the whole of the evidence. The defence must be proved on the evidence, irrespective of whether it be the accused, the Crown or the judge that presses or invites the jury to reach such conclusion. 1. The third member of the Court, Enderby J, did not doubt that the Crown could raise the issue of mental illness, but held that if the Crown contended for a not guilty verdict be reason of mental illness, such a matter needed to be proved beyond reasonable doubt. 2. Three significant things should be noted from Ayoub. First, no doubt was cast by any member of the Court on the notion that it was as open to the Crown to raise and to prove mental illness as it was to the defence. Indeed, specific reference was made by all three members of the Court to what results from the Crown raising the issue. Secondly, as in the present matter, the case concerned a contest between the Crown seeking a finding of not guilty on the ground of mental illness, and the defence who sought a finding of diminished responsibility. Thirdly, the majority determined that the standard of proof in relation to the Crown's assertions was the balance of probabilities. 3. In the absence of other authority, I consider myself to be bound by Ayoub. I note that Kirby J in R v Jennings [2005] 789 at [28] followed Ayoub, not only in relation to the onus of proof, but also on the issue of the Crown being able to raise the (then) M'Naghten defence of mental illness in circumstances where the accused raised only diminished responsibility. 4. Further support for that position is to be found in remarks of Deane and Dawson JJ in The Queen v Falconer (1990) 171 CLR 30 at 62 where their Honours said: The problem [of the interaction of sane automatism and mental illness] is complicated by the consideration that it is no longer entirely appropriate to speak of insanity as a defence, having regard to the fact that the consequences of successfully raising the plea go beyond negativing volition or intent. True it is that insanity operates to produce an acquittal, but it is seldom raised by an accused now that there are no capital offences, because incarceration at the Governor's pleasure may be a harsher penalty than conviction and sentence. Indeed, nowadays it is often in the interests of the prosecution (or, at all events, the community) to raise the question of insanity, rather than in the interests of the accused. It used to be said that it was for the defence to raise a plea of insanity and not for the prosecution. That is probably still the case, but we think that the position has now been reached where it is only realistic to recognize that, if there is evidence of insanity, the prosecution is entitled to rely upon it even if it is resisted by the defence. 1. The present case is not one where the issue of mental illness had not been raised by the defence. In R v Joyce [1970] SASR 184 the Full Court of the Supreme Court of South Australia (Bray CJ, Walters & Zelling JJ) said (at 188), when commenting on R v Cottle [1958] NZLR 999: This does not mean that the prosecution of its own motion, and without the raising of any defence based on the accused's state of mind or his lack of consciousness, can call evidence of the accused's insanity…. The position, however, is different if the defence calls some evidence, either by calling its own witnesses or by cross-examination of the prosecution witnesses, about the state of mind of the accused, even if it does so, not for the purpose of establishing the defence of insanity, but for some other purpose. If, as a result, there is evidence on which a jury could properly find insanity, in our view it is the duty of the trial judge to leave that question to them. 1. Except for the rather technical view that the Crown should not be able to rely on what is described as a "defence" to a charge that it is preferring (although cf. what was said in Falconer (above) as to whether it is a defence), if mental illness is raised by the accused (as it was here as a result of the accused's plea), no reason is shown why the Crown should not or could not contend for a finding of no criminal responsibility, in circumstances where it is the duty of the trial judge to leave that question to the jury. 2. Accordingly, the Crown is entitled to raise the issue of criminal responsibility by contending that the accused has a mental health impairment, even where the accused contends only that his capacity was substantially impaired, and that his liability should be reduced from murder to manslaughter. 3. The standard of proof is on the balance of probabilities, both as a result of what is said in Ayoub, and by reason of s 28(2) of the MHCIFP Act. Nothing in s 141 of the Evidence Act requires proof beyond reasonable doubt in the circumstances. Is criminal responsibility a threshold issue? 1. The Crown submitted that the issue of criminal responsibility was a threshold issue which had to be determined prior to a consideration of any defence of substantial impairment. 2. Mr James QC submitted that, contrary to what the Crown contended, there was no priority of consideration between the defence under s 28 and the defence of substantial impairment under s 23A. Mr James submitted that the Crown could not avoid the necessity of proving the other elements of the offence by proving first that the accused had a mental illness defence. In that regard, Mr James submitted that if an accused in adversarial proceedings chooses to assert a defence which would reduce murder to manslaughter, the Crown cannot then run a different case to change the standard of proof, and thereby negate the defence raised by the accused. 3. The question of criminal responsibility is closely related to proof of the elements of the offence. The elements of the present offence are these: (1) the death of Mohammad Bashir Zaheer; (2) that it was the act of the accused that caused his death; (3) that the act was deliberate; (4) that the act causing death was done with either (a) an intention to kill the deceased or (b) an intention to inflict grievous bodily harm (which means really serious physical injury) upon the deceased; (5) that the act was not done in self-defence 1. The accused does not dispute that all of these elements are made out. I am satisfied beyond reasonable doubt from the agreed facts, that elements (1), (2), (3) and (5) of the offence of murder have been established. Although the accused does not dispute that he had the intention required by element (4) (cf. R v Davidson (No 2) [2019] NSWSC 2011), for reasons which follow, its consideration must await other findings. 2. There appears to be some conflict in the authorities about whether the question of intention should be considered before or after consideration of any defence of mental illness. In R v S [1979] 2 NSWLR 1 the Court of Criminal Appeal determined that a jury should be directed that they must consider all the elements of the offence alleged against the accused on the presumption that the accused is sane, followed by a determination on the balance of probabilities of whether he was suffering from a mental illness so as not to be responsible for his act. However, the High Court in Hawkins v The Queen (1994) 179 CLR 500 at 517 subsequently made clear that the issue of whether the accused is criminally responsible for his act must be determined before the issue of intent is to be addressed. 3. In R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226, Hunt A-JA (Spigelman CJ and Howie J agreeing) said at [32]: Proof of the specific intention which the Crown must prove in such a case is not always an easy one where there is an element of mental illness involved. In Hawkins v The Queen (1994) 179 CLR 500 (at 510, 512–514, 517), the High Court held that, contrary to what had previously been thought to be the law in this State, evidence of mental illness is relevant to the question as to whether the accused's act was done with the specific intent charged. The High Court held that the order in which the issues should be determined in a case where there is evidence of mental illness is: (1) Was it the act of the accused which, in this case, caused the malicious wounding? (2) Was he criminally responsible for doing that act? (3) Was that act done with the specific intention required? The second question is resolved by a finding that mental illness had been established. The third question arises only if the second question is answered adversely to the accused and, in those circumstances, the evidence of mental illness (even though insufficient to make out the defence) is relevant to the issue of specific intent. That evidence is not, however, relevant to the issue as to whether the act of the accused was a deliberate one. The High Court said (at 515) that there was no necessary inconsistency between mental abnormality and the existence of a specific intent, but nevertheless the evidence of mental illness must be taken into account in determining whether there was that specific intent. As the judge found in the present case that the defence of mental illness had been established, it was unnecessary for him to make any finding of specific intent. 1. In my opinion, the Crown's submission, that the issue of criminal responsibility should be, and indeed must be, considered before any question of substantial impairment is to be considered, should be accepted. There are a number of reasons for that. 2. First, Minani determined, following Hawkins, that the issue of whether an accused is criminally responsible for an offence must be determined before the issue of the accused's specific intention can be dealt with. If the accused is found not to be criminally responsible, the question of his intention is not reached. 3. Secondly, it follows that consideration of substantial impairment only arises when all of the elements of the offence, including intention, have been found against the accused. Indeed, s 23A(1) commences by saying, A person who would otherwise be guilty of murder…. That position is reached only when all of the elements of the offence are proved. Consideration of substantial impairment only occurs, therefore, at the end of the process. This necessarily means that whether the accused is criminally responsible must be determined prior to consideration of substantial impairment. 1. Thirdly, although the tests in s 28 and s 23A are similar, they are not the same. In Jennings Kirby J said: [25] The law, as you would expect, is fundamentally concerned with holding people accountable, that is, responsible, for their actions. It is recognised, however, that a person may not be responsible for what they do by reason of mental illness. However, there are degrees of mental illness. A person may be totally impaired at the time they commit a breach of the law, or their impairment may be less than total, although still substantial. … [29] Turning, then, to the partial defence, were the Court to find that the impairment suffered by the accused through mental illness was not total, but was nonetheless substantial, the partial defence of substantial impairment by reason of abnormality of mind may then be available. (emphasis added) 1. In R v Eyuboglu (No 2) [2019] NSWSC 285, Button J found that the defence of mental illness was not made out because he was not satisfied on the balance of probabilities that the accused did not appreciate the wrongfulness of what he was doing at the time. His Honour then went on to consider the partial defence of substantial impairment. He set out the elements of that defence that had been established when he considered the defence of mental illness. They were, first that the accused suffered from an abnormality of the mind and, secondly, that it arose from an underlying condition being schizophrenia. 2. His Honour then said at [61]: Thirdly, I consider that that abnormality of mind impaired (without destroying entirely) each of: the capacity of the accused to understand events; and to judge whether his actions were right or wrong; and to control himself. (emphasis added) 1. Those cases make clear that the bar for establishing substantial impairment is lower than the bar for establishing mental illness. That must be so, when the result of a successful defence under s 28 is that the accused has no criminal responsibility, whereas the result of a successful defence under s 23A is conviction, but for a lesser crime. A finding under s 23A is a finding that the accused has some criminal responsibility which reduces murder to manslaughter. In that way, if a determination of substantial impairment was made first, it would leave open whether the accused had no criminal responsibility. 2. It is necessary, therefore, first to determine if the accused suffers from a mental health impairment. Although both s 28 and s 23A refer to both mental health impairment and cognitive impairment, there is no suggestion in the present case that the accused suffers from a cognitive impairment. Accordingly, I have made no further reference to "cognitive impairment". Nevertheless what is said in terms of legal principle concerning mental health impairment applies equally to a person suffering from a cognitive impairment. Does the accused suffer from a mental health impairment? 1. Both psychiatrists considered that the accused had a mental health impairment at the time the offence was committed. Both were of the view that the accused understood the nature and quality of his act but did not know that the act was wrong. 2. Dr Eagle said: I am of the view that Mr Jawid had a mental health impairment at the time of the index offence that was characterised by a psychotic disorder, and an anxiety disorder. … Mr Jawid's actions in stabbing appear to have been directly in response to a systemised persecutory delusion involving the deceased. A delusion is a fixed false belief and symptom of psychosis. It prevents an individual from being able to determine what is real and what is not real. The delusion arose due to an underlying psychotic disorder which is a mental health impairment. I am of the view that Mr Jawid was unable to reason as to the wrongfulness of his actions with a moderate degree of sense and composure, as perceived by reasonable people due to his delusion involving the deceased which arose as a result of a mental health impairment. … If the effect of any alcohol intoxication or withdrawal were to be disregarded, I am of the view Mr Jawid remains substantially impaired in his capacity to understand events and judge whether his actions were right or wrong, by his a mental health impairment. (emphasis added) 1. Dr Allnut said: He had a chronic PTSD that remained present at the material time of the alleged offence and thus a "mental health impairment" independent of substances. In my view his "mental health impairment" made contribution to his use of substances, a means of self-medication. If the psychosis were regarded as a drug induced psychosis and not a chronic psychotic disorder, notwithstanding this lie would be regarded as having an "unhealthy mind" due to his PTSD, a non-reactive and persistent mental condition. The argument can then be made that the psychosis resulted from the reaction of a "relevantly unhealthy mind (PTSD) to an external stimulus" (substances). PTSD is also a condition that can contribute to violent offending behaviour in and of itself. On balance, I would regard your client as meeting the legal definition of in "mental health impairment" as defined under section 4 (2)(d) that is that at the material time of the alleged offence he was suffering from a substance induced mental disorder that was not temporary section 4(d) the of the Mental Health Cognitive Impairment forensic Provision Act 2020, or section 4 (2) (a and c), that is that he was suffering from an anxiety disorder (PTSD) and a psychotic disorder. At the material time of the alleged offence your client was suffering from symptoms consistent with a psychosis characterised by a systematised, persecutory delusional belief related to believing that the victim had been conspiring with bikie gangs to torture or undermine him and in some way harm him, developing into thoughts that the victim was also conspiring to kill him. There is a history of persecutory beliefs of this nature which had been present for several years and had likely become systematised and entrenched by the material time of the alleged offence. As a result of his delusional belief he incorporated the deceased into his delusional belief system. He believed that his life was under threat, that the deceased was torturing him, and that the deceased was stealing from him. Having incorporated the deceased into a delusional belief system, his decision-making around the beliefs and his interpretation of the deceased's motives towards him would have been distorted and would have undermined his reasoning capacity. If it is accepted that he had a "mental health impairment", then he has a mental illness defence available to him as the "mental health impairment" undermined his capacity to know that his actions were wrong because he was unable to reason about the act with a moderate degree of sense and composure, even though he maintained capacity to know the nature and quality of the act. (emphasis added) 1. Both psychiatrists agreed that the accused's level of impairment was substantial. They were asked by the Crown Prosecutor, in effect, to compare s 28 and s 23A in this exchange: CROWN PROSECUTOR: How does that concept of capacity to understand whether the actions were right or wrong being a matter of degree feed into the difference between s 28 of the Mental Health Cognitive Impairment Forensic Provisions Act and s 23A of the Crimes Act. WITNESS EAGLE: Yes, actually that's quite a good question. In s 23A it is suggested that there is a level of impairment that is relevant to the test. That is not equivalent to the test in s 28(b), which is simply that the person was unable to reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong. In that sense, at the time then the person was required to be not able to reason according to that definition, but under s 23A it is suggested there is a level of impairment or a degree of impairment that's required. And capacity does fluctuate. And people can have capacity to understand and make decisions about some things and not about others regardless of the presence of a mental health impairment. CROWN PROSECUTOR: Dr Allnutt, is there anything you can add to that or would like to add? WITNESS ALLNUTT: I would just say these are legal terms. What "judge" means is up to the judge and what "no" means is up to the judge, or up to the court to determine. These are legal terms and they are legal thresholds. If the court wants to distinguish between them, the Court needs to find those thresholds. For example, "judge whether right or wrong", is it a higher test or a lower test. It used to be a lower test, I think, than know whether the act was wrong. But in adding "could not reason with a moderate sense of composure", that potentially actually makes that test lower than the one under substantial impairment depending on how you read it. Now, other people may read that as now a higher test than the one required under 20A [scil. 23A]. So these are legal terms that really, I think, if a court wants to distinguish between the two they needed to find the thresholds of those two tests because they overlap so greatly that we as psychiatrists have a lot of difficulty distinguishing them. The fact is that in this case he lacked capacity to judge right or wrong and, I think, he lacked capacity to know whether the act was wrong. Whether or not it was wrong in the sense as defined under 28A [scil. 28] as to whether he could reason with a moderate degree of composure about it, that's a threshold test. That's something around threshold that we need to understand. The Court needs to give us guidance on that so we can apply that test. (emphasis added) 1. The difference between the two sections is (relevantly) that s 23A is focused on the accused's capacity "to judge whether [his] actions were right or wrong", and s 28 focuses on the effect of the mental health impairment "that [he] did not know that the act was wrong" in the manner explained by the words following in parentheses. 2. On either test, both Dr Eagle and Dr Allnut consider that the accused lacked the capacity to reason to the wrongfulness of his actions and to judge whether the act was right or wrong. Was the accused criminally responsible for his acts? 1. Section 30 provides: 30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established. 1. Before reaching a conclusion on the issue of criminal responsibility I am obliged to consider the matters in s 29 of the MHCIFP Act which include the legal and practical consequences of such a verdict. 2. If the verdict is "act proven but not criminally responsible", I have to decide what should then be done with the accused. If I am satisfied that neither his safety, nor the safety of any other member of the community is seriously put at risk by his release, I can order his release into the community either unconditionally or on conditions that I believe are necessary for his welfare and that of the community. 3. On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that he be detained in custody until he is released by what is called "due process of law". This means not only that the accused remains in custody until a decision is made to release him, but also that he becomes what is known as a forensic patient and falls under the supervision of the Mental Health Review Tribunal. 4. The Mental Health Review Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office. 5. The functions of the Tribunal are these: 1. To review a case of a forensic patient as soon as practicable after an order is made for his detention in strict custody. The Tribunal may make orders as to that person's continued detention, care or treatment. 2. The Tribunal cannot make an order for the release of a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by his release. The Tribunal must notify the Minister for Health and the Attorney General in advance of the release of a forensic patient and they may make submissions to the Tribunal in relation to the possible release of that person. 3. Where an order for release is not made, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal. 4. After the review referred to above, the Tribunal must, at least once every six months, again review the case and make orders as to the forensic patient's continued detention, care or treatment in a hospital, prison or other place or as to his release. 5. If release is ordered, then it may be on conditions or unconditionally. If any condition is breached, or where the mental condition of the person has deteriorated so that he may be a serious danger to others, a further order may be made by the Tribunal for the person's apprehension, care and detention. 6. Security conditions (as necessary) are in place while a forensic patient is detained in a hospital, prison or other place or if the person is allowed to be temporarily absent from the place of detention. 7. A person found "not guilty on the ground of mental illness" may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time. 1. I note further that, in reaching a view on the issue of the accused's criminal responsibility, I am not to be influenced by the consequences of a special verdict. 2. I find beyond reasonable doubt that the accused deliberately stabbed the deceased on 16 July 2020 at Pyrmont in the state of New South Wales, and that the acts of stabbing were the cause of the deceased's death. 3. I am satisfied, on the balance of probabilities that the accused at the time of the commission of the offence had a mental health impairment, being a psychotic disorder and an anxiety disorder. I am further satisfied on the balance of probabilities that the mental health impairment had the effect that the accused did not know that the act of stabbing the deceased was wrong, in that he could not reason with a moderate degree of sense and composure about whether the act as perceived by reasonable people was wrong. This was because of his systematised persecutory delusional belief relating to the deceased. 4. In those circumstances, it is not necessary to determine if the accused had the necessary intention to kill or inflict grievous bodily harm on the deceased. 5. In the circumstances, I will return a special verdict in accordance with s 30 of the MHCIFP Act. 6. Having regard to s 33(3) of the MHCIFP Act, I am not satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by the accused's release. 7. Accordingly, I make the following orders: 1. I return a special verdict of act proven but not criminally responsible. 2. I order that the accused be detained pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), in an appropriate correctional centre, or in such facility as the Mental Health Review Tribunal may determine, until he is released by due process of law. 3. I refer the accused to the Mental Health Review Tribunal. ********** 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: 21 June 2022