Supreme Court New South Wales Medium Neutral Citation: R v EC [2022] NSWSC 1088 Hearing dates: 18, 19 and 21 July 2022 Date of orders: 17 August 2022 Decision date: 17 August 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) I return a special verdict of act proven but not criminally responsible in respect of Count 1 on the indictment, being the charge of murder. (2) I return a special verdict of act proven but not criminally responsible in respect of Count 2 on the indictment, being the charge of intentionally destroy property by means of fire. (3) Pursuant to s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), I order that the accused be detained at the Austinmer Adolescence Unit in the Forensic Hospital or at such other place as may be determined from time to time by the Mental Health Review Tribunal until release by due process of law. (4) Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Act, I refer the accused to the Mental Health Review Tribunal. (5) I order that the Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide the Tribunal the following documentation: (a) A copy of the Court's reasons for verdict; and (b) A copy of the statement of agreed facts, including the reports of Dr Nielssen and Dr Eagle. (6) I order that the related charges which have been referred to this Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) are dismissed. Catchwords: CRIMINAL LAW — murder — trial — judge alone — young person — defence of mental health impairment — special verdict of act proven but not criminally responsible Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: R v DB [2022] NSWCCA 87 R v Hall (1988) 36 A Crim R 368 R v Klamo [2008] VSCA 75 R v Porter (1933) 55 CLR 182; [1933] HCA 1 R v Siemek (No. 1) [2021] NSWSC 1292 R v Tonga [2021] NSWSC 1064 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 Category: Principal judgment Parties: Regina (Crown) EC (Accused) Representation: Counsel: B Campbell (Crown) J Watts (Accused) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2020/251281 Publication restriction: There are publication restrictions in place concerning the identity of the accused, the deceased, any children involved in the proceedings and the location in which the deceased passed away pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). This would include the identification of the victim in any way that may lead to the identification of the defendant. Judgment 1. At some time between 15 and 16 August 2020, Scott Czarnecki, also known as "Chen Czarnecki", died as a result of multiple stab wounds he had received whilst in his home in Smiths Creek in northern New South Wales. 2. On 28 August 2020, the accused, his son, who was 17 years of age at the time of Mr Czarnecki's death, was arrested and charged with his murder. He was originally charged with three offences, being: 1. That he did murder Scott Czarnecki contrary to s 18(1)(a) of the Crimes Act 1900 (NSW); and 2. That he did improperly interfere with a dead human body contrary to s 81C(b) of the Crimes Act; and 3. That he did intentionally destroy the residence where Mr Czarnecki was killed contrary to s 195(1)(b) of the Crimes Act. 1. The accused entered pleas of not guilty to each of the charges. The matter was listed for hearing before me by way of a judge alone trial commencing on 18 July 2022. On commencement of the hearing, the Crown presented a fresh Indictment as follows: "1. Between the 15th day of August 2020 and the 16th day of August 2020, in Smiths Creek in the State of New South Wales, did murder Scott Czarnecki. 2. Between the 15th day of August 2020 and the 16th day of August 2020, at Smiths Creek in the State of New South Wales, did intentionally destroy by means of fire certain property, namely, residence situate at [redacted], Smiths Creek, the property of Julie Brant." 1. The accused entered pleas of not guilty to both charges. Having said that, the accused does not dispute doing the acts which give rise to the charges, being killing his father and subsequently setting fire to the house. 2. The central issue is whether the accused is entitled to the special verdict he seeks, being the verdict of act proven but not criminally responsible pursuant to s 30 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). 3. It is important to observe that the hearing was not a trial conducted pursuant to s 31 of the MHCIFP Act. Instead, the trial was an "all issues" trial but the accused sought a special verdict under s 30 of the MHCIFP Act on the basis that the defence of mental health impairment had been established pursuant to s 28 of the MHCIFP Act. 4. There was substantial agreement on the facts. Further, in the end the Crown accepted that there is evidence which would support the mental health impairment defence, albeit it is a matter for me to so determine. 5. The accused was 17 years and 7 months at the time of the alleged offending. He is charged with a serious children's indictable offence and, pursuant to s 17 of the Children (Criminal Proceedings) Act 1987 (NSW), he is to be dealt with according to law. 6. I remind myself that the accused has entered pleas of not guilty to both charges, albeit he is seeking a special verdict under the MHCIFP Act. The Crown bears the onus of proving all the elements of the offences beyond a reasonable doubt. The accused bears no onus. Further, I should not make any findings adverse to the accused unless I am satisfied of those matters beyond a reasonable doubt. 7. The accused did not give evidence on the hearing. Again, I remind myself that no inference should be drawn from the failure of the accused to give any evidence. That is his right. 8. Having said that, both parties have suggested that I should make factual findings in accordance with the statement of agreed facts. The statement of agreed facts includes a description of the attack by the accused on the deceased, which involved stabbing the deceased with a knife on a number of occasions and then striking him to the upper body with a machete. There is no dispute that he died from the injuries sustained in that attack by the accused or that the accused set fire to the house. Background to the relevant events 1. The deceased was 64 years of age at the time of his death. He was residing at a rural property in Smiths Creek which was owned by his de facto partner, Julie Brant. 2. The accused is the middle of three children born to the deceased and the deceased's former wife, Melissa Czarnecki (nee Birch). He has an older sister who was 19 at the relevant time and a younger sister who was 16. All three children were born in New South Wales. Their early upbringing was in a commune named the "Twelve Tribes". 3. Both the deceased and Melissa Czarnecki were from the United States originally. Prior to the birth of the accused, they had moved from the United States to New Zealand for the purposes of establishing a Twelve Tribes commune in New Zealand. The Twelve Tribes might be described as a religious group which subscribe to beliefs said to be consistent with the literal interpretation of the Bible. 4. It seems that the establishment of the commune in New Zealand was not successful. The deceased and the accused's mother then moved to Australia where they established a Twelve Tribes commune in Queensland. 5. However, the family returned to live in the United States for three years before they again returned to live in Australia, at which time the deceased left the Twelve Tribes community. They moved to the Northern Rivers region of New South Wales. The accused's parents separated when he was around the age of 13. The deceased then formed a relationship with Ms Brant. The accused's mother suffered from mental health issues. 6. The accused had been living on the property at Smiths Creek with the deceased and Ms Brant since he was 14 years of age. He left school before completing Year 11. 7. According to the history given to one of the psychiatrists, Dr Kerri Eagle, the accused began using cannabis around once every two weeks at the age of 14 and, from the age of 16, was smoking cannabis all day every day. The deceased grew cannabis on the farm and thus the accused seemingly had unlimited access to that drug. 8. The accused had not been diagnosed with any mental health disorder or sought treatment for mental health difficulties prior to killing the deceased. 9. At the time of the relevant events, he led an isolated existence. He was not working or studying and tended to spend much of his time at home watching TV or playing video games. He said that he did not have any friends. 10. Prior to 15 August 2020, Ms Brant and the deceased had discussed with him that he needed to find a new residence by the end of September 2020 or lead a more productive life by engaging in either work or study. 11. At around 12pm on 15 August 2020, Ms Brant left her residence to attend work at Lismore Base Hospital. Both the deceased and the accused were at home that afternoon. At around 2-3pm his mother and younger sister visited him and the deceased at the property. His mother expressed her disagreement to the deceased about forcing the accused to relocate away from the property. She told the accused that he could live with her at Kyogle if he had to move out. His mother and sister then left the property at around 4pm. The accused had smoked some cannabis which he later described as a "strong strain". 12. Ms Brant decided to stay in Lismore on the evening of 15 August 2020 as her next work shift commenced at 9.30am the next day. She attempted to contact the deceased over Facebook but did not receive any reply. She again attempted to contact him the next day without response. She travelled home at 5.30pm on Sunday, 16 August 2020. 13. Shortly before 5.40pm on Sunday, 16 August 2020, a neighbour contacted triple-0 reporting that the property was on fire. He attended the property but it was fully engulfed in flames by that time. He was unable to locate any person or vehicle. The Rural Fire Service attended at 6.06pm and extinguished the fire. Police arrived at about 7pm and observed that the roof had collapsed. The granny flat and surrounding sheds were untouched. 14. Around 11pm, the deceased's charred remains were located within the debris. The actions of the accused 1. The accused did not give evidence on the hearing but there is a description of his account of the events contained in the statement of agreed facts as follows: "During the evening of 15 August 2020 Mr Czarnecki was sitting at the table in the kitchen area of the house on his iPad. At about 9pm the young person approached the deceased from behind and stabbed him in the back numerous times with a knife that he always carried with him around the property. As he did so he accused the deceased of being a paedophile. The deceased managed to get up from his chair and stand facing the young person and screamed, "No I'm not, you're crazy". The young person attempted to stab the deceased again but the deceased defended himself with a chair causing the young person to drop the knife. Thereafter the young person ran to the veranda and armed himself with a machete. He returned into the house and struck the deceased several times to the upper body with the machete causing the deceased to collapse to the floor. The deceased died from the injuries sustained in the attack." 1. The cause of death was identified on post-mortem examination as multiple stab wounds to the upper back. There were further stab wounds to the right scapula which caused fractures and two "chop" type injuries to the left scapula and thoracic spine. These latter wounds were inflicted very close to the time of death and required a significant amount of force. 2. In terms of Count 2 on the Indictment, it is an agreed fact that after killing his father, the accused had a shower and went to bed. During the afternoon of the next day (the Sunday afternoon), he placed petrol around the deceased's body and throughout the house and ignited the accelerant. The fire then engulfed the house. The accused fled the scene taking the deceased's motor vehicle and some items of property, including the knife which he had used to stab the deceased. 3. The accused fled to Evans Head. On Monday morning, 17 August 2020, he was observed taking a bike from outside the Evans Head Surf Club. He remained around Evans Head until he was arrested at 1.30pm on Wednesday, 19 August 2020. 4. At the time of his arrest, he had singed hair and eyebrows and a backpack which contained the deceased's mobile phone, a wooden mallet, a fishing knife, a screwdriver, a chisel, two gas lighters and a box of matches. 5. On arrest he was taken to Lismore Police Station, where he was informed of his father's death. He was charged with a number of summary offences in relation to the theft of the bike and other items in his possession and released on bail. 6. On 28 August 2020, he was again arrested and charged with the murder of his father and intentionally destroying property by fire. 7. He has not participated in a Police interview. The legislative scheme 1. Although the events giving rise to the trial occurred on 15 to 16 August 2020 and the MHCIFP Act commenced on 27 March 2021, the MHCIFP Act applies to this trial. [1] 2. The defence of mental health impairment is set out in s 28 of the MHCIFP Act as follows: 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. As set out in s 28(2), the question of whether a defendant had a mental health impairment that had the effect set out in s 28(1)(a) or (b) is to be determined by the jury on the balance of probabilities. As provided by s 6 of the MHCIFP Act, a reference to a question that is to be determined by a jury includes a reference to a judge in proceedings determined by a judge alone. 2. Section 28(1) provides that 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 that had the effect set out in subparagraphs 28(1)(a) or (b). 3. Mental health impairment is defined in s 4 of the MHCIFP Act as follows: 4 Mental health impairment (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. 1. In this matter, it is not suggested that the proviso set out in s 4(3) applies. That is, the Crown does not assert that any impairment from which the accused was suffering was caused solely by the temporary effect of ingesting a substance or a substance use disorder. 2. As noted in earlier cases, [2] once the Court is satisfied that the physical elements of the charge of murder have been proved by the Crown beyond a reasonable doubt, the Court must consider the defence of mental health impairment prior to considering the question of proof of the mental element of murder. 3. If I am satisfied that the defence of mental health impairment has been established, then I must return a special verdict of act proven but not criminally responsible in accordance with s 30 of the MHCIFP Act. 4. As set out in s 33(1) of the MHCIFP Act, on the return of a special verdict of act proven but not criminally responsible, I may make a number of different orders, including: 1. an order that the accused be remanded in custody until further order; 2. an order that he be detained in the place and manner that I think fit until released by due process of law; 3. an order for the unconditional or conditional release of the accused; or 4. other orders that may be appropriate. 1. Importantly, before making an order for the release of the accused, I may request a report from a forensic psychiatrist or other person who is not currently involved in treating the accused as to his condition and whether his release would likely seriously endanger the safety of him or any member of the public (s 33(2)). 2. Further, I must not release the accused unless I am satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by his release (s 33(3)). 3. Pursuant to s 28(3), it is presumed that the defendant did not have a mental health impairment that had the effect set out in s 28(1) until the contrary is proven. As such, the onus remains on the accused to rebut that presumption. 4. Although this is a judge alone trial, it is important to comply with s 29 in the sense of acknowledging the matters set out in s 29. Section 29 commences with the words "[t]he judge must explain the following matters to the jury …" but it remains appropriate to remind myself of the matters set out in s 29, including the legal and practical consequences of a finding of act proven but not criminally responsible. 5. Firstly, if I return that verdict, I may make one of a number of the orders to which I have already referred. 6. In the event that the accused is not unconditionally released, I must refer him to the Mental Health Review Tribunal in which case he will become a forensic patient. 7. The Mental Health Review Tribunal is a specialist body constituted under the Mental Health Act 2007 (NSW). Decisions are made by a tribunal panel consisting of three members, being a lawyer who chairs the meeting, 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. 8. However, I must not be influenced by the consequences of a special verdict in deciding what verdict I should reach. I must give a true verdict according to the evidence. 9. Whilst in the end the Crown did not dispute that there is evidence supporting the defence of mental health impairment, it is necessary that I be independently satisfied that the defence has been established. Although this is not a hearing pursuant to s 31, even when the prosecutor and defence agree in advance of the trial for the purposes of s 31, it is necessary that the Court be independently satisfied (s 31(c)). Similarly, in a trial such as this, I would need to be satisfied that the defence has been established on the balance of probabilities irrespective of the approach of the Crown. The evidence 1. The only oral evidence adduced on the hearing was from the two psychiatric experts, being Dr Kerri Eagle and Dr Olav Nielssen. Dr Nielssen prepared a report dated 20 September 2021. Dr Eagle prepared a report dated 17 December 2021. Both adduced evidence by AVL and were subject to cross-examination. 2. The Crown material included a number of statements from various witnesses, including the deceased's partner and the accused's mother and sister. In addition, the Crown material included statements from various Police, Ambulance and Rural Fire Services officers, as well as an autopsy report prepared for the Coroner from Dr Allan Cala, a forensic pathologist, dated 28 November 2020. 3. The Crown material also included the accused's prior medical records and Justice Health Records, as well as the accused's school records and reports. 4. It is unnecessary to comment on all of the material in this judgment as the essential facts are not in dispute. Much of it was relied upon by the expert psychiatrists and formed the basis of their opinions. The autopsy report 1. Dr Cala is a Senior Staff Specialist in Forensic Pathology at New South Wales Health. He conducted an autopsy between 21 and 25 August 2020. He concluded that the deceased died on or around 15 to 16 August 2020 at the property at Smiths Creek. The direct cause of his death was multiple penetrating sharp force injuries (stab wounds). There were no antecedent causes giving rise to his death. 2. There is no dispute about the content of the autopsy report. The expert evidence 1. Whilst whether the matters set out in s 28 are established are questions of fact; the Court is guided by expert evidence in a case such as this. Indeed, in circumstances in which there is no dispute as to the essential facts, the critical evidence is the expert evidence. It is important to remind myself of the direction normally given to a jury in respect of expert evidence. 2. Both experts have specialised knowledge based on their training, study or experience. A witness with specialised knowledge may express an opinion on matters within his or her particular area of expertise. Of course, any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in their level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness' specialised knowledge. 3. Plainly, the expert evidence in this case is provided to assist in determining the issues arising with regard to the mental health impairment defence. That is, the expert opinions assist me in making determinations as to the facts of which I need to be satisfied. If I do not accept the evidence of an expert or experts, I do not have to act upon it. This is particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. Having said that, if the expert evidence is not inherently unbelievable or has not been the subject of any real challenge, I would need a good reason to reject it. 4. I remind myself that I am not bound to accept and act upon the expert evidence, but I must not disregard it capriciously. [3] 5. Dr Nielssen was retained by the accused to provide an expert psychiatric opinion. He interviewed the accused by AVL on 18 August 2021 when the accused was at the Frank Baxter Juvenile Justice Centre. As far as I can determine, he was in receipt of the material relied on by the Crown in these proceedings. 6. Dr Nielssen noted that the accused's physical health had been fine prior to the events of the day. The accused confirmed that he had been smoking cannabis since around the age of 15 and smoked the drug nearly every day from the age of 16. The deceased also smoked cannabis but did not share it with the accused. Rather, the accused just took it from his father's supply. The accused said he had not tried any other drugs and never abused prescribed medication. Other than that, the history of the accused, the deceased and the family was as I have already outlined. 7. Dr Nielssen diagnosed "schizophrenia, paranoid type" as well as "cannabis use disorder, in remission". He said that the diagnosis of schizophrenia, paranoid type was made on the basis of what appears to be a fixed delusional belief regarding his father which the accused reported was the reason for killing him. 8. Dr Nielssen also said that there were other features supporting the diagnosis of schizophrenia, which included his account of attenuated symptoms, the observations of his prior behaviour, school reports, other witness statements and his presentation during the interview. 9. As I have already observed, the accused identifies the reason he killed his father as being a belief that he had sexually abused him as a child. That belief is not supported by any evidence other than the statement of the accused, not that that is determinative. Of course, in some cases of historical sexual abuse there may be no physical evidence of the abuse but the evidence of the complainant that it occurred may still be accepted. 10. In this matter, the suggestion that the deceased sexually abused the accused has not been corroborated by any other person who has been spoken to and asked about the alleged sexual abuse. Further, there is no suggestion or evidence that being a member of the Twelve Tribes community predisposed the deceased to sexual abuse of children or that that type of conduct went on or was condoned within the commune. The statement made by the accused that his father sexually abused him has been accepted by the medical experts who have examined the accused as being a delusion. 11. Of course, it is not up to the experts to determine the facts. I can only say that no evidence was put before me or indeed has been put before any person so as to substantiate the statement by the accused that his father had sexually abused him. 12. As noted by Dr Nielssen, the emergence of the belief that he had been sexually abused as a much younger child happened at the age of 17, despite no previous history of that abuse. Dr Nielssen considered that it was "almost certainly" a delusional belief in the absence of information confirming that the abuse took place. He based this view on the way in which the belief emerged and was held rather than by excluding the possibility that sexual abuse in fact took place. 13. Dr Nielssen preferred the diagnosis of schizophrenia to other possible diagnoses such as autism spectrum disorder, delusional disorder or drug induced psychosis. He had regard to the school reports and issues which had emerged at school. He referred to the presence of negative symptoms and the diagnosis of a paranoid subtype because the prominent symptom at the stage of his examination was a delusional belief rather than hallucinations or a communication disorder. 14. Dr Nielssen considered that the accused's regular use of cannabis may well have resulted in the early onset of schizophrenia but there may also have been an inherited vulnerability to develop mental illness. Further, Dr Nielssen noted that his delusional belief had, at the time of the examination, persisted for eight months since he last had cannabis which, along with the negative symptoms, indicated that he has an underlying mental illness independent of drug use. 15. Dr Nielssen supported the defence of mental health impairment, suggesting that the accused's underlying mental illness, being a psychotic disorder, would have resulted in a severe impairment of his mental function. Whilst he was aware of the physical nature and quality of his actions in repeatedly stabbing his father, he was deprived of the ability to appreciate the moral wrongfulness of his actions because of the effect of his delusional belief and illogical thinking arising from his mental illness on his moral reasoning. Dr Nielssen noted that it is evident from his progress in custody that his condition is not a temporary effect of his past cannabis use. 16. Both experts were questioned on their acceptance of the belief of the accused as to his sexual abuse being delusional rather than real. It is notable that the first mention of any alleged sexual abuse only arose quite some time after the accused had killed his father. Dr Nielssen was asked about this in cross-examination. That is, the Crown raised for clarification the suggestion that the accused did not want to leave the property and there was a sense of an ultimatum as to when he would be asked to leave the property, and indeed that on the day of the incident the accused and his father seemed to be getting along. That is, how could the accused have had the belief that he had been sexually abused by the deceased, having regard to the other circumstances existing on the day. 17. Dr Nielssen explained that because of his disabling mental illness, the accused had no problem-solving ability. He may have felt he was stuck living with his father. Dr Nielssen stated that the fact that the accused did not tell anyone immediately that he had killed his father because he had been sexually abused was not inconsistent with the diagnosis of first episode psychosis. 18. Dr Nielssen referred again to the school reports and the family history. He was unable to say precisely when and why the schizophrenia developed but the events which occurred were due to a first episode of psychosis arising out of the development of schizophrenia. 19. Dr Nielssen was asked whether it was possible that the accused had killed his father under the influence of cannabis and the delusion of sexual abuse was something that developed some time after the killing. Whilst Dr Nielssen accepted that possibility, he thought that the step of killing his own father would, in these circumstances, require a disturbance in moral and logical thinking of the kind caused by an extreme delusional belief. 20. Further, Dr Nielssen was asked to comment on the accused's ability to appreciate the wrongfulness of his actions as follows: "Q. If I can then turn specifically to his ability to appreciate the wrongfulness of his actions, and particularly ask you to comment upon some of the things he did after the killing, and if I can just perhaps list them. We can return to each separately, but if I could list them and ask you to comment on them globally. Firstly, there's the fire, which on one view, was lit, firstly, at the pump, which would prevent the extinguishing of the house fire, and then the house fire, which could destroy evidence. Secondly, he then leaves the scene in the family car, which, it seems, was particularly out of character for him to go away from the house. Thirdly, in a sense, perhaps describing it a bit to grandly, but he was hiding out, or living rough at Evans Head. He then lies to police about his name, and we then have the matter I've already referred you to, where he tries to give the impression that he didn't know that his father was dead, that sort of deceptive behaviour. When you look at those circumstances, is that indicative that he did know the wrongfulness of his actions? A. Look, it certainly confirms he was aware, certainly after the event, of the legal wrongfulness in attempting to evade the police, for example, but it's the moral wrongfulness in the sense of believing that he had been the victim of sexual abuse, and the impairment in the capacity for logical thinking and problem‑solving that goes with psychotic illness. Being unable to reason with sense and composure, are the words that have been used to describe this kind of impairment. I believe that [the accused] had that kind of impairment." 1. Taken as a whole, Dr Nielssen's evidence is supportive of the mental health impairment defence. 2. Dr Eagle was retained on 30 November 2021 on behalf of the Crown. She conducted a psychiatric assessment of the accused on 9 December 2021 by AVL. She obtained a similar history to that of Dr Nielssen, particularly in respect of the family mental health history, the use of cannabis, the absence of earlier psychiatric symptoms and the circumstances of the offending. 3. She asked him why he had stabbed his father. He said, "He had been molesting me and my sisters. I remembered that when I was 17 years old." He said the memory came back to him whilst he was at home after school in his room, sitting on his desk watching a movie on his computer, and the more he thought about it, the more detail he remembered. He said he recalled that the abuse started when he was 5 years old. He could not say for certain that his sisters were abused but believed they were based on what his father did to him. It continued until he was 10 years old. He could not recall how regularly it occurred and thought nobody else was aware of it because his mother was depressed and taking sleeping tablets. 4. Dr Eagle asked the accused why he decided on that day to kill his father and he said, "I wanted to hurt him in general. It's not like I planned it." He further said that there were "barriers between what I could do and what I think" and "I wasn't really thinking and before I knew it, it was done. It was really fast." 5. She asked the accused whether it was possible that his father did not sexually abuse him. He said, "just because there is no evidence it does not mean it must not be true". He said he remembered it. 6. The accused denied any exposure to other traumatic events during his childhood or otherwise. He said he did not go to the Police because he would look ridiculous and probably be sent to a mental institution and he did not like the Police. He understood that he had been charged with murder and was able to describe the nature of the allegations and had an understanding of them. 7. Dr Eagle noted that the belief that he had been sexually abused by his father was fixed. He did not show any emotion in response to this belief. Dr Eagle considered that the belief is consistent with a delusional memory and he maintains the belief despite no information or evidence to support the allegations. He continues to feel justified in maintaining these allegations. Dr Eagle also suggested that the accused had a tendency to have a paranoid or persecutory interpretation of his circumstances. He did not believe he had a mental illness. 8. Having reviewed all of the evidence and having regard to her examination, Dr Eagle opined that the accused appears to have experienced a first episode of psychosis that is most likely part of a schizophrenia spectrum disorder. His description was that of an intensity held, fixed and apparently false belief. He described his experience as a spontaneous memory of this abuse without any other precipitant when he was 17 years old and maintains the belief with intensity. 9. In Dr Eagle's opinion, the nature and description of the emergence of the belief is consistent with a delusional memory, that is, an experience of a past event which did not occur, although the accused maintains that he remembers it clearly. Dr Eagle considered that the accused displayed significant emotional blunting and anhedonia during the assessment, consistent with the negative symptoms of schizophrenia. He would have had a genetic and psychological predisposition to the development of mental illness, due to his mother's mental health difficulties and his adverse upbringing. His condition is characterised by delusions, negative symptoms and significant functional decline. 10. Dr Eagle acknowledged the possibility that the accused was not suffering from a delusion and that he was in fact sexually abused by his father. However, she considered that his presentation and behaviour were more suggestive of a psychotic illness. 11. She stated that it was possible that the accused is fabricating the memory of sexual abuse but that he did not appear to be trying to avoid criminal responsibility rather than offering an explanation. As such, it was unlikely to be a fabrication and more consistent with a delusional memory. 12. Dr Eagle paid particular attention to whether the accused had a mental health impairment. She considered that his actions at the time and subsequently indicated that he was aware of the legal wrongfulness of his actions but his delusional memory and associated disturbed thought processes (associated with a psychotic illness) would likely have impaired his judgment to the extent that he was not capable of reasoning as to the moral wrongfulness of his actions as perceived by reasonable people with a moderate degree of sense and composure. 13. Thus, she considered that the accused had a mental health impairment characterised by a psychotic illness at the time of the offending. He would have been substantially impaired in his capacity to judge whether his actions were right or wrong. 14. Dr Eagle confirmed in oral evidence that the fact that the accused did not disclose the accusation of sexual abuse until some months later did not impact on her conclusion that the claim of sexual abuse was a delusion. Further, she does not consider that the accused's use of cannabis alone could explain his behaviour. She accepted that there is a distinction between an appreciation that his actions were wrong in a legal and moral sense and observed that schizophrenia causes impairments to judgment and a person's capacity to reason and think rationally. 15. When asked about the significance of the delusional belief to her diagnosis, she said, "It's the way he said this memory arose. It makes it really characteristic of a delusional memory and, you know, this is what we would call, in psychiatry, an autochthonous event, where it's like an epiphany, where a belief spontaneously enters a person's mind and can't be challenged. It's characteristic of this type of symptom of schizophrenia." 16. Dr Eagle was asked about aspects of the accused's conduct after the killing of his father to the effect that he might have known that what he did was wrong and he was going to be caught by the Police. She referred to the separation of moral and legal wrongfulness, suggesting that he felt morally and righteously justified in what he did because of his fixed belief and intensely held grievance that his father had sexually abused him. However, Dr Eagle considered that the level of intensity and level of grievance was likely to fluctuate, although the accused still believed he was morally right in what he did. She considered that, in circumstances such as these, psychosis does not cause a fixed false belief in isolation. It has an impact on the whole brain and causes impairment in the person's judgment, emotional response and capacity to reason. 17. In my view, taken as a whole, the evidence of Dr Eagle is also supportive of the mental health impairment raised by the accused. Determination 1. Whilst the test under the MHCIFP Act is a statutory test, that is, s 28 must be satisfied, it remains appropriate to consider earlier cases having regard to matters of principle. 2. In Stapleton v The Queen, [4] the Court explained what is meant by knowing that actions are wrong: "For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing." (emphasis added). 1. In R v Porter, [5] Dixon J (as his Honour then was) said: "The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind, he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through this disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. … What is meant by wrong is wrong having regard to everyday standards of reasonable people." 1. Irrespective of any issue as to the extent of the relevance of common law principles to the defence of mental health impairment arising under s 28, [6] the defence is only established if the accused had a mental health impairment (as that term is defined in s 4) that had the effect that the accused: 1. did not know the nature and quality of the act (being the stabbing of the deceased and setting fire to the property); or 2. 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. This is a question of fact to be determined on the balance of probabilities. Having regard to all of the evidence, I am satisfied that: 1. The accused had a temporary disturbance of thought, perception or memory; 2. That disturbance would be regarded as significant for clinical diagnostic purposes; and 3. The disturbance impaired his emotional wellbeing, judgment or behaviour at the time that he killed his father and set fire to the property. 1. I am satisfied that the accused stabbed the deceased and that this caused his death. I am also satisfied that the accused set fire to the property. 2. I am also satisfied that the accused had a mental health impairment at the time of stabbing the deceased and setting fire to the property. I am also satisfied that his mental health impairment arose from one of the disorders set out in s 4(2) of the MHCIFP Act, being a psychotic disorder. I am also satisfied that his mental health impairment was not caused solely by the temporary effect of ingesting a substance or a substance use disorder within the meaning of s 4(3). 3. The remaining question is thus whether the mental health impairment had the effect that he: 1. did not know the nature and quality of the act; or 2. did not know the act was wrong, having regard to s 28(1)(b). 1. I am satisfied that the mental health impairment which the accused had at the time of killing his father and setting fire to the property had the effect that he did not know that the acts were wrong, that is, he could not reason with a moderate degree of sense and composure about whether the acts, that is, the stabbing of his father and setting fire to the property, as perceived by reasonable people were wrong. 2. In the circumstances, I am satisfied that the accused has established the defence of mental health impairment under s 28 of the MHCIFP Act. 3. In accordance with s 30 of the MHCIFP Act, I thus enter a special verdict of act proven but not criminally responsible. 4. Having regard to s 33 of the MHCIFP Act, I may make a number of different orders depending on the circumstances of the case. Before making any order, I may request a report by a forensic psychiatrist or any other person as to the condition of the accused and whether his release would likely seriously endanger his safety or any members of the public. 5. Further, I must not make an order for his release unless I am satisfied on the balance of probabilities that his safety or the safety of any member of the public will not be seriously endangered by his release. 6. I raised this issue with the parties during the trial. Further evidence was adduced from the experts on this issue. I am unable to be satisfied that the safety of the accused or any member of the public would not be seriously endangered by his release at this time. 7. In the circumstances, I order that the accused be detained at the Austinmer Adolescence Unit in the Forensic Hospital or at such other place as may be determined from time to time by the Mental Health Review Tribunal until release by due process of law. Pursuant to s 34 of the MHCIFP Act, I refer the accused to the Mental Health Review Tribunal. 8. I further order that the Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to the Tribunal the following documentation: 1. A copy of the Court's reasons for verdict; and 2. A copy of the statement of agreed facts, including the reports of Dr Nielssen and Dr Eagle. 1. There are a number of related charges which have been referred to this Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). In the circumstances of the case, I order that those charges be dismissed. ********** Endnotes 1. R v Tonga [2021] NSWSC 1064 at [6]-[10] (Wilson J); R v Siemek (No. 1) [2021] NSWSC 1292 at [9] (Johnson J). 2. R v Tonga at [15]; R v Siemek (No 1) at [16]. 3. R v Hall (1988) 36 A Crim R 368 at [370] (Roden J); R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44] (Maxwell P, with whom Vincent JA agreed). 4. (1952) 86 CLR 358; [1952] HCA 56 at 367 (Dixon CJ, Webb & Kitto JJ). 5. (1933) 55 CLR 182; [1933] HCA 1 at [189]-[190]. 6. See R v DB [2022] NSWCCA 87. 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: 17 August 2022