Supreme Court New South Wales Medium Neutral Citation: R v Lambros [2023] NSWSC 462 Hearing dates: 01 May 2023 Date of orders: 01 May 2023 Decision date: 01 May 2023 Jurisdiction: Common Law Before: Hamill J Decision: (1) A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely the act is proven but the defendant is not criminally responsible due to mental impairment. (2) Pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law. (3) That the Registrar notify the Minister for Health of these orders within 7 days. (4) That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. (5) That the Registrar provide the Mental Health Review Tribunal with a copy of this judgment, orders and exhibits tendered within 7 days. (6) That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. (7) There is to be no publication of the victim impact statement (Exhibit B). It will be put in an envelope and marked not to be opened except by order of a judge of this Court. If there is any application for access to the court file, that document is not to be released until the parties have had an opportunity to be heard. An exception to the non-publication order is that Exhibit B will go with the other exhibits to the Mental Health Review Tribunal. It will not be sent to Justice Health. The Registrar to be notified accordingly. Catchwords: CRIMINAL LAW – murder – stabbing – special verdict – mental health impairment – where victim and accused took drugs together – where accused formed delusional belief that victim poisoned him – where parties agree that defence of mental impairment is established – evidentiary hearing – hearing conducted before trial commenced – procedural provisions – where accused made repeated complaints of physical symptoms and belief that victim tried to kill him – opinions expressed by psychiatrists retained by both parties – joint opinion that accused suffered mental impairment and did not know his actions were wrong – special verdict entered – consequential orders – receipt of victim impact statement – privacy and non-publication order Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30L, 30L(1), 30L(2), 30N, 30N(4) Crimes Act 1900 (NSW), s 23A Criminal Procedure Act 1986 (NSW), ss 132(2), 141, 143 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 28, 31, 33, 33(1), 33(1)(b), 33(2), 34, 78(c), Pt 5 Cases Cited: R v Gough [2021] NSWDC 180 R v Jackson [2021] NSWSC 1404 R v Lailna [2023] NSWSC 48 R v Siemek (No 1) [2021] NSWSC 1292 R v Tonga [2021] NSWSC 1064 Category: Principal judgment Parties: Rex John Lambros Representation: Counsel: F Gray (Rex) J Brock (Lambros) Solicitors: Director of Public Prosecutions (Rex) Legal Aid Commission (Lambros) File Number(s): 2021/00234037 Publication restriction: There is to be no publication of the victim impact statement (Exhibit B). EX TEMPORE JUDGMENT (REVISED) 1. John Lambros stands charged with the murder of Sophocles Koumoutsos, an offence which allegedly occurred in Marrickville on 13 August 2021. Mr Lambros was arraigned before the list Judge (Wilson J) in this Court on 9 December 2022 and pleaded not guilty on the ground of mental impairment. On 3 November 2022, Mr Lambros elected to be tried by judge alone and the Director of Public Prosecutions consented to this election. Accordingly, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW) ("the CP Act") Wilson J made a "trial by Judge order" on 9 December 2022. The matter was listed for trial and allocated to commence before me today. 2. At all stages, Mr Lambros' legal advisers indicated that the only issues at the trial arose from the state of Mr Lambros' mental health at the time of the killing of Mr Koumoutsos. He relied on the opinions of Dr Andrew Ellis, forensic psychiatrist, provided in detailed reports which had been served on the Director of Public Prosecutions. In written disclosures pursuant to ss 141 and 143 of the CP Act, Mr Lambros conceded that the prosecution could establish the physical elements of the offence of murder. He indicated that he relied on the defence of mental impairment and sought a special verdict of "act proven but not criminally responsible". The notices said he would also contend, in the alternative, that he was substantially impaired pursuant to s 23A of the Crimes Act 1900 (NSW). This would reduce his liability from murder to manslaughter. 3. On 24 April 2023, the prosecution indicated its agreement that the defence of mental health impairment was or could be established. The Director had obtained a report from Dr Adam Martin, another forensic psychiatrist. Dr Martin came, more or less, to the same conclusions as Dr Ellis. 4. The parties notified my Associate of their joint view that the matter could proceed, at least initially, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). That section provides: 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established. 1. The section, and its procedural and legal implications, has been considered in a number of cases: see, for example, R v Tonga [2021] NSWSC 1064, R v Siemek (No 1) [2021] NSWSC 1292, R v Jackson [2021] NSWSC 1404 and R v Lailna [2023] NSWSC 48. It has arisen in cases where a trial has already commenced, in cases where no trial date has been fixed, and in cases like the present, where a trial date has been set but the trial is yet to commence. The procedure was described as an "evidentiary inquiry" by Judge Abadee in R v Gough [2021] NSWDC 180 and that phrase has been adopted by single Judges of this Court: see R v Jackson (Johnson J) and R v Lailna (Chen J). In R v Jackson, Johnson J said: "9. In the absence of s.31, a criminal trial would take place for the purpose of determining whether the defence of mental health impairment had been established. A criminal trial is conducted as adversarial litigation where an accusatorial process is involved, in which the prosecutor bears the onus of proving the elements of the crime charged: Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 at [138]. In this case, if the matter proceeded to trial, it would be for the Crown to prove that the Accused committed the act in question and the other elements of the crime of murder (apart from the question of intention) and it would be for the Accused to establish, on the balance of probabilities, the defence of mental health impairment under s.28(2) of the Act. 10. Section 31 is a statutory modification of these usual procedures and permits the Court to consider the agreed position of the parties without the need for a criminal trial. In R v Siemek (No. 1) [2021] NSWSC 1292, reference was made (at [19]) to the origin of s.31 as explained in the second reading speech: 'In the second reading speech for the MHCIFP Bill, the Attorney General explained that s.31 'aims to avoid the need for an expensive and lengthy trial when the prosecutor and defence are in agreement that a special verdict should be found' (Hansard, Legislative Assembly, 3 June 2020, page 2352). The Attorney General observed that the Bill added 'extra safeguards' in that 'the defendant must be legally represented and the court must be satisfied that, on the evidence, the defence is established'. This was in line with the recommendation of the New South Wales Law Reform Commission, Report 138, 'People With Cognitive and Mental Health Impairments in the Criminal Justice System – Criminal Responsibility and Consequences', 2013, paragraphs 3.159-3.160.'" 1. This evidentiary inquiry in Mr Lambros' case commenced this morning. The Prosecutor tendered a bundle of documents as Exhibit A and Mr Lambros tendered a report of Dr Ellis dated 14 June 2022. Counsel for both parties filed helpful written submissions (MFI 1 and 2). 2. Based on the evidence and the submissions I am satisfied that: 1. The parties agree that the proposed evidence establishes the defence of mental health impairment (pursuant to s 28 and the definition in s 4 of the Act). 2. Mr Lambros is represented by two eminently qualified and experienced Australian legal practitioners. 3. The evidence establishes, on the balance of probabilities, the defence under s 28. 1. Accordingly, as I indicated in the course of submissions this morning, a special verdict will be entered. Before formally entering that verdict, I will briefly explain my reasons for doing so. The facts and acts leading to the death of Sophocles Koumoutsos 1. Mr Lambros accepts that his acts caused the death of Sophocles Koumoutsos and the evidence establishes clearly that he did so. There is an agreed statement of facts and a statement by John Koumoutsos, who is the brother of the deceased. Events leading up to the offence 1. Mr Lambros and Mr Koumoutsos were friends and they occasionally used drugs together. Mr Koumoutsos was 55 years old and was undergoing chemotherapy for lung cancer at the time of his death. 2. On 7 July 2021, approximately a month before the offence, Mr Lambros and Mr Koumoutsos took heroin together. After taking heroin Mr Lambros started experiencing pain throughout his body and formed the belief that Mr Koumoutsos had given him "adulterated" drugs, instead of heroin, and had tried to kill him. This belief was delusional; Mr Koumoutsos did no such thing. However, Mr Lambros believed it and wrote a letter to a friend named Jake that same day which said: "Dear John AKA (Jake)! Mate I inform you Soff & I did consume Heroin today lunchtime! My apology to you for lying! You are the one person I can & have turned to. Scoff scored with $150 dollars I gave him from this I consumed 80% intravenously. Soff spotted the remainder 20%. Soon as I had it in my left arm I have been crook as. (I did not see him have his). These are my symptoms. Severe burning all over my body. Swelling of arm, really bad pain in guts, upper and lower back, legs, feet and extremely intense at kidney & behind eyes! What ever he dished out was not Heroin! It is a HOT SHOT! Jake plz inform any relevant authorities if I pass away! Also tell my children that I love them & this was not intentioned by me! My fones PIN 190259, Jake you can access it. On my Sony one open the clipboard in there are Number plates of the vehicles Dealer arrives in. Thank you. Johnie" 1. Between 5:14pm on 7 July and 12:52am on 8 July 2021, Mr Lambros and Mr Koumoutsos exchanged text messages and 'phone calls discussing the symptoms that Mr Lambros said he was experiencing from taking the heroin. Mr Lambros did not accuse Mr Koumoutsos of giving him contaminated drugs. 2. However, Mr Lambros again wrote to Jake on 8 July 2021. He repeated his belief that Mr Koumoutsos had not given him heroin, and said he was feeling "very sick" and claimed that Mr Koumoutsos "really is dangerous". Again, those beliefs were delusional. 3. On 9, 10 and 13 July 2021, Mr Lambros attended his GP's office reporting burning in his body, pain and headaches. 4. Mr Lambros also wrote a number of diary entries between 31 July and 12 August 2021. He described his symptoms and said he felt like he was dying. He wrote that Mr Koumoutsos had poisoned him and that he wanted revenge. Two extracts of these entries are as follows: "1 August 2021 It is now 1.25am and I'm going to try to get some sleep. I can hardly swallow. My head is still zapping away like a constant hum and burn with twitches. My whole body is smasming [sic] and trembling, have this burn and it is persistent, just won't go away. My eyesight is blurred and I'm burning up… It is now 5am…I'm getting this bitter taste in my mouth, want to throw up. All the rest is going on. Laying here thinking how can I get better. Also how can I get Soff back. Lad, would you allow for this to happen? My body is not secreting this chemical Soff has put inside of me… It is now 8:00am. Still feel very busy and not well at all…it is consuming me. Hope Lord Jesus Christ can march me out the other side. 10:00am. Feeling super sick, my stomach is burning up and I can barely put up with it. Please Lord help me. Held me! My mother of Jesus Christ, father of man, save this man. … 12 August 2021 It is going through me very severe! May god punish you Soph Koumoutsos. That is who gave me this shot-intravenous shot. What a fuck. He has tried to kill me. Thursday night – have been trying to ride this unfortunately it is not the case … very scared, very scared, very scared … can't go on diagnosing all that is wrong with my body! God help me. Please lord. Help me. I don't want to die now. Don't want to die in pain… can't understand how the medics can't find anything. Surely my teeth, stomach, eyes. Headache, tingling throughout my body! Find something. Oh God. I'm actually crying!" 1. On 4 August 2021, Mr Lambros attended Royal Prince Alfred Hospital ("RPAH") complaining of a burning and buzzing sensation with muscle spasms in his body (described as pins and needles). No neurological abnormality was detected, and Mr Lambros was referred back to his GP. 2. Mr Lambros also reported his symptoms to a friend and former neighbour, Helen Kosac, who had planned to see him on 13 August 2021. The offence 1. On the morning of 13 August 2021, Mr Lambros wrote in his diary: "This shit is so bitter I can't take the fucker off. Why Soff – why? My head is still buzzing, my muscles are twitching uncontrollably. From my diagnosis, I feel like bitterness throughout … Dear God, lift this feeling … I have been living right. Stop drinking, no drugs … My stomach keeps churning … Does not feel right, feel as if insides are going to come out. I know this is not possible. However, I think I can be dying, please no, please no. Feels as my muscles are weathering away, if not I'm losing control of [them]." 1. At around 11:32am, CCTV footage recorded Mr Lambros entering and placing an order at a Chicken Shop in Dulwich Hill. At 11:37am, Mr Koumoutsos got off a bus in front of the chicken shop. He entered the shop, placed an order, and waited inside. At 11:38am, Mr Lambros returned to the chicken shop to collect his order and noticed Mr Koumoutsos. Mr Lambros stepped forward towards Mr Koumoutsos but quickly turned around and left. A few minutes later, Mr Lambros returned to the front of the chicken shop to confirm that Mr Koumoutsos was still inside and then he walked away. 2. At 11:44am, Mr Lambros crossed the intersection, sat down and ate his food, while looking in the general direction of the chicken shop. He then walked home and made the following entry in his diary: "SEEN SOFF IN SHOPS. GOING TO KILL HIM!" 1. At 11:49am, Mr Koumoutsos left the chicken shop and sat at the bus stop. At around 11:55am, Mr Lambros drove his car past Mr Koumoutsos and at 11:58am, Mr Koumoutsos boarded the bus to travel home. At 12:01pm, Mr Lambros was recorded by a camera attached to the front of the bus. He was sitting on a brick wall outside Mr Koumoutsos' home. Mr Lambros walked towards the bus stop with a knife in his right-hand. 2. Mr Koumoutsos got off the bus and stood at the bus stop. Mr Lambros punched Mr Koumoutsos with his right hand a number of times. Mr Koumoutsos tried to step back and push Mr Lambros away. Witnesses described Mr Koumoutsos falling to the ground after Mr Lambros punched him. Mr Lambros held Mr Koumoutsos by the shirt and stabbed him to the chest and neck a number of times. 3. Mr Lambros then walked to his car which was parked nearby and drove home. Mr Koumoutsos sat on a small brick wall behind the bus stop. He was bleeding heavily and fell backwards onto the garden bed. One witness attempted to assist him. Another called an ambulance. Arrest and autopsy 1. Police arrived at the scene at around 12:05pm. They saw large pools of blood on the footpath and Mr Koumoutsos lying across the wall in the garden bed. Constable Matthew Huang noticed that Mr Koumoutsos had puncture wounds in his neck and chest. Police and ambulance officers were unable to resuscitate him. He was pronounced dead at 12:30pm. 2. At around 12:15pm, police arrived at Mr Lambros' address and spoke to him through his rear window. Mr Lambros was initially compliant when asked to step outside. He had blood on his right hand. Once outside, Mr Lambros quickly retreated back inside, ignored further directions and armed himself with a knife. He told police: "just shoot me", "he deserved it", "I made my bed, I'm going to have to lie in it", "everyone thinks it's in my fucking head", "I'd rather end up at the morgue", and "I'm not a bad person, I just did a bad thing". Police observed him drinking from methadone bottles and consuming a number of tablets. 3. At about 2:10pm, tactical police entered the premises and Mr Lambros was arrested. Paramedics noticed a laceration on one of Mr Lambros' right fingers, which he attributed to a "previous altercation" that was "drug related". Mr Lambros was charged and taken to RPAH. 4. A post-mortem examination was conducted on 17 and 18 August 2021 by a Forensic Pathologist, Dr Alexandra Kullen. Mr Koumoutsos had eight stab wounds to his face, neck and torso. Dr Kullen determined that the cause of death was "stab wounds to the neck and chest and the consequences thereof". 5. DNA of Mr Koumoutsos was found on Mr Lambros' hands and on a knife that was later found in Mr Lambros' car. There is a photo of that in the exhibits. Statement of John Koumoutsos 1. Mr Koumoutsos had a brother John. He made a witness statement and described his family's long association with Mr Lambros. They all met, as Greek immigrants, when they lived in adjoining properties in Dulwich Hill. He described his brother's drug use over many years and his brother's involvement with Mr Lambros including their mutual use of heroin. His brother had stopped for a while but resumed using heroin after he was diagnosed with lung cancer. 2. John Koumoutsos described events around the relevant time. He overheard a telephone conversation in which Mr Lambros said that the "crap today was shit". His brother told Mr Lambros he could not be serious and reminded him that they had gone back to get more. This conversation took place – I would infer – after the pair had shared the heroin on 7 July which, when all is said and done, is the cause of the tragic events that followed. 3. John Koumoutsos noticed that Mr Lambros had not been in touch for some time after this conversation and that was unusual. His brother told him he assumed Mr Lambros must have accepted that the heroin they shared was okay. 4. That is what John thought until Friday 13 August. 5. That day, he heard sirens after he woke up and became aware that his brother had been killed. John had to explain what had happened to his mother and it took him several times to do so. The evidence of the psychiatrists 1. As I said earlier, reports of Dr Ellis and Dr Martin were tendered at the hearing. Dr Ellis conducted a two-hour interview with Mr Lambros via audio-visual link ("AVL") on 18 February 2022. Dr Martin met with Mr Lambros for 90 minutes, also by AVL, on 23 June 2022. The experts were asked to provide their opinions on whether the defence of mental illness or the partial defence of substantial impairment were available to Mr Lambros and reviewed his medical history and the brief of evidence to assist them in their assessment. Personal history 1. Both experts gave a summary of Mr Lambros' background and personal history. 2. Mr Lambros is 63 years old and was 61 at the time he killed Mr Koumoutsos. He was born in Greece and migrated to Australia with his family in the 1970s, when he was 11. His parents argued frequently. His mother was strict and would often "belt" him. Mr Lambros reported that he was assaulted once by an older brother and sexually abused by an older male cousin when he was a young boy. 3. Mr Lambros said he struggled socially in school and fell in with what he described as the "wrong crowd". He left school at the age of 15 and performed various jobs in the Greek community before securing a job as a mechanic. He attempted an apprenticeship but did not complete it. Nevertheless, he worked as a mechanic in various places until 2007. 4. In 2002 Mr Lambros' mother passed away from a car accident. After his mother's death, Mr Lambros had to stop his father from attempting suicide on two occasions. His father died in 2013 from natural causes. Mr Lambros' brother died of a heart attack in 2019. 5. Mr Lambros was married in 1985 and described his marriage as "rocky". He and his wife separated and got back together several times. His wife died in 2016 from ovarian cancer. He has four adult children and two grandchildren. He has not remarried and lived alone in the family home until the time of his arrest. 6. Mr Lambros has, according to the reports, a limited criminal history. As a young adult, he was given bonds for driving a stolen vehicle and stealing a car and was subject to an apprehended violence order and charged with assault during a period of separation from his wife. 7. However, while his criminal history is minor, he reported a lengthy history of drug use. He has been smoking and drinking since he was a teenager. He started smoking cannabis when he was 14 and stopped when he was 35, because he experienced "paranoia" while using that drug. He has taken lysergic acid diethylamide (LSD), speed, cocaine and psylocibin (magic mushrooms). He started using heroin daily from 1993 and began taking methadone, prescribed by his doctor, around two years later. He had a period of abstinence from heroin for a few years but relapsed after his mother's death in 2002. He described himself as being drug free from 2011, but still used heroin occasionally while on the methadone program. 8. Before the offence, his main source of income was from the disability support pension, which he had been on since 2007. He had to stop work because of physical injuries and post-traumatic stress disorder ("PTSD"). Medical and psychiatric history prior to the offence 1. Dr Martin noted that the first recorded instance of Mr Lambros possibly experiencing psychotic symptoms was on 1 March 1998, when he presented to a hospital complaining of "pains like electricity shocks shooting down his arms/legs", after being injected with "speed" by his friend. He was assessed as suffering from neurosis and anxiety withdrawal from pain medication. He was not diagnosed with a psychotic illness. 2. Before the offence, Mr Lambros had been treated for hepatitis C, nerve pain in his left arm, hypothyroidism and diabetes. In 2007 he suffered a stroke and in 2008 he presented to an emergency department with left-sided paralysis. A CT scan showed no abnormality in his brain, and he recovered physical function spontaneously. An MRI later showed the cause of his paralysis was due to reduced blood supply in both sides of his brain. 3. In 2010 Mr Lambros was diagnosed by a psychologist with PTSD, depression, dysphoria and anxiety, following the deaths of his mother and father, stress of his marriage breakdown and his loss of employment. He was prescribed anti-depressant and anti-anxiety medication, which he continued to take for some years. Mr Lambros also takes blood pressure medication and has been taking methadone for around 20 years. He reported previous suicide attempts after being "overwhelmed with everything" but has never been admitted to a mental health facility. 4. On 23 May 2011, Mr Lambros presented to the emergency department complaining of "increased burning on the inside of [his] body" after heroin use. He was thought to be experiencing distress or benzodiazepine withdrawal. On 24 May 2011, Mr Lambros was re-admitted to the emergency department following an overdose of methadone and antipsychotic medication. He reported that he had a "bad shot" over the weekend and complained of a "burning sensation to his back, anus and scrotum". 5. Mr Lambros was seen by a psychiatrist from the pain clinic in 2016 and 2017. No diagnosis was made, and he was told to continue with anti-depressant medication. 6. On 10 July 2021, a few days after Mr Lambros consumed heroin with Mr Koumoutsos, he saw his GP and was diagnosed with an infection in his left arm. Three days later Mr Lambros went back to his GP, complaining of anxiety and a burning sensation in his body. 7. In the weeks after Mr Lambros consumed heroin with Mr Koumoutsos, Mr Lambros reported that he went to the emergency department twice. However, records show he was only examined in the emergency department once, on 4 August 2021. On that occasion, he complained of widespread numbness and a burning sensation over his body. A neurological examination was normal. 8. On 6 August 2021, Mr Lambros saw his GP again complaining about the burning sensation over his body. He was told that he had high blood pressure and was instructed to cease taking antidepressant medication. Medical and psychiatric assessments after the offence 1. Mr Lambros was treated at RPAH following his arrest on 13 August and was discharged into police custody around a week later. Doctors' notes documented that Mr Lambros complained about a burning sensation in his brain, back and stomach, a metallic taste in his mouth and twitching in his body. He told doctors he had been feeling this way for five to six weeks after injecting a drug that was not heroin. However, Mr Lambros did not report any "particular suspicious conspiracy or foul play". Mr Lambros said he could not remember the offence. The treating doctor believed that Mr Lambros was suffering from a depressive illness with anxious features, coinciding with the substance injection, as well as alcohol withdrawal. The doctor did not identify any psychotic symptoms but said that "delusional mood or somatic delusions cannot be excluded". The doctor referred him for further psychiatric assessment in custody and prescribed antidepressant and insomnia medication. 2. While in custody between 17 August 2021 and 8 October 2021, Mr Lambros was seen several times by forensic psychiatrists, mental health nurses and a GP. Mr Lambros was suicidal and experiencing abnormal sensations and pain in his body, along with insomnia and sightlessness. He consistently repeated that the heroin he took was "laced with something". Psychiatrists who assessed him found that he did not present with symptoms of psychosis. The antidepressant and insomnia medications were discontinued. 3. On 11 and 12 February 2022, Mr Lambros was admitted to hospital complaining of a "burning like sensation all over his body … post being injected with an unknown substance … by someone that was trying to kill him". Mr Lambros also reported that the pain had gotten much worse, he had lost sensation in his legs, his muscles were stiff and tight, and he had a strong chemical taste in his mouth and nose. A CT brain scan showed no abnormalities. Mr Lambros was discharged back into custody. 4. Since 12 February 2022 Mr Lambros was seen by a psychiatrist, a GP and a substance use physician. His mental state was said to be stable, other than his belief about being injected with poison. He was found again to be compliant with the methadone program. However, he was found to have weak vision, a drooping eyelid, reduced sensation in his left leg, bad coordination and a brain tumour. The GP was of the opinion that Mr Lambros may have multiple sclerosis or an autoimmune disease and referred him to a neurologist. Dr Martin's and Dr Ellis' Consultations 1. Both Dr Martin and Dr Ellis described Mr Lambros as "polite", "cooperative" and "calm" during their consultations. Both doctors said he was able to give a detailed account of his history but had a fragmented memory of the offence. Mr Lambros remembered having poor sleep and taking a large amount of Valium the night before, being angry at Mr Koumoutsos for giving him the drugs, and seeing Mr Koumoutsos at the bus stop. He then "remembers someone yelling out to him … a lot of blood" and "someone yelling at him 'enough!'" Mr Lambros also remembers that he went home and attempted suicide by taking a large amount of methadone. 2. During both consultations he expressed his belief that Mr Koumoutsos deliberately poisoned and tried to kill him. He said he still experiences burning sensations and pins and needles in various parts of his body and brain, poor sleep, low energy, diarrhoea, loss of appetite, dental pain, loss of control in his legs, a metallic taste in his mouth, dry nostrils, blurred vision and "burning in [his] eye sockets". He attributed these symptoms to the drugs that Mr Koumoutsos injected in him. 3. Dr Ellis reported that Mr Lambros showed "no evidence of gross formal thought disorder. There was no evidence of depressive cognition. He described his mood as flat and his emotional expression was anguished particularly when describing his physical experiences". Furthermore, he "became irritated when it was suggested that his symptoms could be caused by a mental illness". Mr Lambros denied any symptoms consistent with hallucinations, delusions or drug withdrawal. 4. Dr Martin said Mr Lambros expressed wariness and suspiciousness, consistent with paranoia, around the possibility that he was poisoned. However, Dr Martin found that no bizarre or psychotic phenomena were present in Mr Lambros' behaviour, and he did not look hallucinated. Defence of mental health impairment 1. Dr Ellis diagnosed Mr Lambros with: 1. A delusional disorder of a persecutory type; 2. Substance use disorder (specifically around opioids, benzodiazepines, and alcohol); and 3. Three neurological deficits, which he described as gaze problems, drooping eyelids, sensation disturbance and involution (shrinking) of the pituitary gland in the brain. 1. Dr Ellis gave the opinion that Mr Lambros was suffering from a mental health impairment, specifically a delusional disorder, at the time of the offence: "I am of the opinion that [Mr Lambros] is suffering from a mental health impairment (a delusional disorder) which is characterised by delusions and hallucinations. At the time of the offences Mr Lambros was not on treatment for this condition. He had been presenting to neighbours and medical professionals with his unusual symptoms prior to the offence. His presentation on his arrest and in custody by reporting further unusual physical symptoms is consistent with this diagnosis as is his overall history. He was likely suffering from delusions and hallucinations on the day of 13 August 2021. Although he was taking benzodiazepines and opioids at that time, these substances are not likely to have caused the symptoms of delusions and hallucinations. He has experienced persistent symptoms in custody without access to substances. Opioids and benzodiazepines do not generally cause delusions and hallucinations and generally dampen these symptoms by sedation. Delusional disorder can be considered a 'mental health impairment' as it is a clinically significant condition for diagnostic purpose in all major classifications of mental disorder. The disorder in his case impaired his thought by delusions and his perception by hallucination. Delusional disorder is an ongoing disorder, and has temporary exacerbations. Although he was using substances, this was not the sole cause of his presentation. Delusional disorder impairs his emotional wellbeing, judgment and behaviour evidenced by repeatedly seeking medical explanations for his experience, unwarranted suspicion of his friend and sense of anguish about his situation. Mr Lambros formed a delusional belief approximately one month before attacking his friend the deceased. He believed that the deceased had tried to kill him with an injection. He was preoccupied with this belief, telling people about it, writing about it and trying to seek a medical solution for it. In the fortnight before he further believed that he was in danger from the deceased, thinking that the deceased carried a knife and wished to harm him. He experienced a number of physical sensations that are most likely hallucinations that caused him significant distress. He finds these hallucinations are associated with strong emotion and poor concentration. He was angry at the deceased and wished to exact justice for his situation. The description of his behaviour at the bus stop is an extreme attack upon someone who was a friend in a public place. The attack took place after a chance encounter where he spotted his friend. The combination of extreme action and unstable mental state with a belief that his friend would harm him and had harmed him with the injection is consistent with not being able to reflect with composure on whether a course of action is right or wrong. He remains at the time of this review angry with his friend. It is likely he knew that stabbing would seriously harm if not kill someone (and it is his written intention to kill him), therefore he know the nature and quality of his act. His behaviour after the act, taking an overdose of methadone and harming himself, requesting the police to shoot him is consistent with not being able to reflect with composure." 1. Dr Ellis further stated that Mr Lambros' conduct before and after the offence meant that he was not "faking" his mental impairment: "It is not likely that he is feigning or malingering this presentation. He has been acting on these beliefs in a persistent manner prior to, during the material time and post arrest. He holds the beliefs of persecution with a rigid fixity, and does not seek to present them as a mental disorder, rather a physical reaction to being poisoned. I note that at the hospital admission after arrest and in custody clinicians do not find him to have symptoms of delusions or hallucinations … Delusional disorder symptoms are discrete, rather than having multiple delusions and disorganised thought is not prominent making it more difficult to diagnose tha[n] other medical conditions. If specific questions are not asked, a person can display an unremarkable mental state. By this time it would appear he instructed not to speak about his charges, which may have left him more guarded discussing his experience. In his particular case he denied having any mental symptoms and does not seek psychiatric assistance, which may make eliding symptoms more difficult. In this case I am of the view that assessing clinicians did not have the advantage of collateral materials available to myself to tailor questions or know about his prior neurological presentations, as much time or trust … to obtain a full account." 1. Dr Ellis concluded that the defence of mental impairment was available to Mr Lambros: "Therefore, on the basis of his history of abnormal mental state before and diagnosis with symptoms of delusional and hallucinations after the charge, his account of his mental state and observations of his behaviour at the time and closely before, and after it is likely that a court could find the defence of mental health impairment open to him." 1. Dr Martin agreed with Dr Ellis' diagnoses and, in particular, that Mr Lambros had a delusional disorder at the time offence as well as a substance use disorder. He gave the following opinion: "In my view, the most likely clinical scenario or diagnosis for Mr Lambros is that he has developed persecutory delusional system in the time leading up to the alleged offending, based around the probable fixed false belief that he has been deliberately poisoned by the Deceased and that as a result that he has developed a range of physical symptoms, such as burning and electrical sensations in various parts of his body. In essence, I agree with the opinion of Dr Ellis in relation to the diagnostic issues in that it is likely that Mr Lambros had developed a delusional disorder, persecutory type. Delusional disorders are considered major mental illnesses. In my view, it is a variant of schizophrenia. Delusional disorders are characterised by an overwhelming pre-occupation with a fixed false belief, in the relative absence of disorganisation, disordered thought form and hallucinations [symptoms more likely seen in schizophrenia]. Delusional disorders typically present later in life. Delusional disorders can be associated with problematic or violent behaviour because of distress associated with the fixed false belief becoming overwhelming. In my view, this is a likely scenario with Mr Lambros. At clinical interview, Mr Lambros presents with the pre-occupying belief that he has been poisoned and that he has subsequently developed various physical symptoms [potentially strange if not implausible somatic hallucinations]." 1. Dr Martin agreed that Mr Lambros was not faking or malingering the signs of a mental illness as "there is clear evidence in the information above of him having sought medical attention with the expressed belief of having been poisoned by a 'hot shot' prior to the alleged offending". 2. Dr Martin concluded that Mr Lambros had a mental health impairment, specifically a delusional disorder: "In my view, he can be seen as a person who has suffered 'mental health impairment' within the meaning of the Act. He has an ongoing disturbance of thought, which would be regarded as significant for clinical diagnostic purposes and has impaired his wellbeing, judgement and behaviour. Mental health impairment has arisen from a psychotic disorder [delusional disorder]. His mental health impairment has not arisen as a result of the temporary effect of ingesting a substance or a substance use disorder. That being said, he would also qualify for a diagnosis of substance use disorder [opiates, alcohol, cannabis]. It is well known that people with psychotic disorders [ie major mental illnesses], frequently have an associated substance use disorder." 1. Dr Martin stated that, although it was likely that Mr Lambros knew the nature and quality of his acts, he agreed with Dr Ellis that the defence of mental illness, to use the old phrase, was still available to him: "On the assumption that the court finds him responsible for the physical element of the offence, it would appear highly likely that he knew the nature of quality of his act. The alleged offending seems deliberate and intentional and statements that he is said to have made before and following the alleged offending would demonstrate that he was aware of his actions. However, in my view, it would be reasonable for the court to find that while he would have appreciated the legal wrongfulness of the actions, that he was unable to reason with a moderate degree of sense and composure about whether the Act, as perceived by reasonable people, was wrong. Delusional disorders are characterised by a person being out-of-touch with reality [which is the hallmark of psychosis]. In his case, Mr Lambros was highly likely to have been overwhelmed by the distressing belief that he had been deliberately poisoned causing him life threatening physical damage, and in my view, this would have been distressing and led him to be vulnerable to acting irrationally and without due regard for 'normal' social rules. In my formulation, Mr Lambros would have been not able to think clearly or exert sound judgment around his situation. In summary, in my view, it can be reasonably argued that he has the defence of mental health impairment available to him." Consideration and conclusion 1. I am satisfied beyond reasonable doubt that Mr Lambros committed the acts that killed Mr Koumoutsos; of that there can really be no doubt. 2. Section 4 of the Act defines a "mental health impairment" as follows: (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. Section 28 of the Act provides for the defence of mental health 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. Based on the history provided by Mr Lambros to the experts and the opinion of those experts, as well as the many and various complaints Mr Lambros has made of something that did not happen (that is, that Mr Koumoutsos gave him a hot-shot of some kind, an expression of a state of facts which I find to be delusional), I am satisfied that Mr Lambros was suffering from a delusional belief that Mr Koumoutsos had poisoned him. I am satisfied that this belief resulted from the psychiatric conditions (or to use the language of the statute, the mental health impairments), with which both Dr Ellis and Dr Martin have since diagnosed him. 2. On the balance of probabilities, I find that the effect of these things was that Mr Lambros did not know, at the time he stabbed Mr Koumoutsos to death, that his acts were wrong. That is, because of his delusional state of mind at the time, Mr Lambros could not reason with a moderate degree of sense and composure about whether his act, as it would be perceived by a reasonable person, was wrong. Special verdict 1. Accordingly, I here and now enter a special verdict that "the act causing death is proved but that Mr Lambros is not criminally responsible for that act". Consequential orders (and the reasons formulated after the hearing) 1. I made certain consequential orders after the special verdict was returned and indicated I would provide brief reasons for those orders after the Court adjourned. 2. After the special verdict was returned and entered, the Prosecutor tendered a victim impact statement from John Koumoutsos. This is permitted by s 30L(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). I spoke directly to Mr Koumoutsos and his family after reading that statement and acknowledging its receipt into evidence: s 30L(2) of the Sentencing Act. The purposes to which the statement can be put are limited by the remaining paragraphs of s 30L, but had I made an order for the conditional release of Mr Lambros, I would have been entitled to take the statement into account in formulating the conditions. 3. However, I did not make such an order. The effect of a special verdict is set out in s 33(1) of the Act: (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders-- (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. 1. Both parties submitted that I should make an order under s 33(1)(b) of the Act. That would have the effect that Mr Lambros will remain in custody until released "by due process of the law". That process is set out in Pt 5 of the Act. Because of Mr Lambros' minor criminal history and the fact that the reports do not suggest that he represents a current danger, I hesitated before accepting the joint position of the parties. However, I ultimately did so for the following reasons. 2. Neither of the psychiatrists whose reports were tendered have consulted with Mr Lambros in recent times and neither provided an opinion which addressed the question of whether Mr Lambros may represent a danger to himself or other members of the community if he is released at this stage. There is at least some evidence of Mr Lambros having, at times, a suicidal ideation and the evidence suggests that, at least at the time of the most recent consultation, Mr Lambros continued to hold beliefs that may be delusional: see, for example, [52]-[57] above. There is also evidence that Mr Lambros expressed similar beliefs – that he had physical symptoms of burning associated with earlier heroin use – as early as 2011: see [46] above. 3. Section 33(1) of the Act provides: (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. 1. The evidence before the Court could not support such a finding on the balance of probabilities. Neither party sought to tender any additional evidence and it was not appropriate to request a report from a psychiatrist under s 33(2) when doing so was likely to result in further delay, before the possibility of Mr Lambros being released is addressed. The better course is to allow the Mental Health Review Tribunal ("the Tribunal") to consider the question after its mandatory review under s 78(c) of the Act. That review must occur "as soon as practicable". Obtaining further evidence would have taken some considerable time with no guarantee that appropriate conditions of release could be formulated in the absence of the expertise and authority possessed by the Tribunal. The parties said Dr Martin and Dr Ellis were available to give further evidence on Tuesday 2 May 2022, but they were unlikely to have been able to provide any relevant opinion given that neither have consulted with Mr Lambros for many months. 2. I also considered the privacy concerns of John Koumoutsos which were raised by the Prosecutor: see s 30N of the Sentencing Act. Subject to the requirement under s 30N(4) to include his victim impact statement in the material sent to the Tribunal, I made orders restricting access to his victim impact statement and for there to be no publication of its contents. Orders 1. Before formally recording the orders, I record my thanks to counsel and their instructing solicitors for the efficient conduct of these proceedings and assistance with the relatively new provisions. 2. For those reasons I made the following orders: 1. A special verdict be entered, pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), namely the act is proven but the defendant is not criminally responsible due to mental impairment. 2. Pursuant to ss 33 and 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is to be detained in a correctional facility or such other place as determined by the Mental Health Review Tribunal, until he is released by due process of law. 3. That the Registrar notify the Minister for Health of these orders within 7 days. 4. That the Registrar notify the Mental Health Review Tribunal of the verdict and these orders within 7 days. 5. That the Registrar provide the Mental Health Review Tribunal with a copy of this judgment, orders and exhibits tendered within 7 days. 6. That the Registrar notify Justice Health of the verdict and orders, and provide a copy of the judgment, orders and exhibits to Justice Health within 7 days. 7. There is to be no publication of the victim impact statement (Exhibit B). It will be put in an envelope and marked not to be opened except by order of a judge of this Court. If there is any application for access to the court file, that document is not to be released until the parties have had an opportunity to be heard. An exception to the non-publication order is that Exhibit B will go with the other exhibits to the Mental Health Review Tribunal. It will not be sent to Justice Health. The Registrar to be notified accordingly. 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: 03 May 2023