Supreme Court New South Wales Medium Neutral Citation: R v Peterson (No. 4) [2014] NSWSC 1056 Hearing dates: 21- 25, 28 July 2014 Decision date: 06 August 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: The accused is not guilty of murder. On the limited evidence available, the accused committed the offence of manslaughter of Rafik Makaradi on 30 May 2012. Catchwords: CRIMINAL LAW - special hearing - murder - manslaughter - substantial impairment - whether accused would have been guilty of murder or manslaughter in a normal criminal trial Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Crimes Act 1900 (NSW) Cases Cited: Potts v R [2012] NSWCCA 229 R v Peterson [2013] NSW 1002; R v Peterson (No 2) [2014] NSWSC 966 Travel Compensation Fund v Tambree (t/as R Tambree and Associates) [2005] HCA 69; (2005) 224 CLR 627 Subramaniam v The Queen (2004) 79 ALJR 116 Category: Principal judgment Parties: The Queen (Crown) John Francis Peterson (Accused) Representation: Counsel: C Maxwell QC (Crown) C Smith (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2012/173835 Judgment 1These reasons are my determination of the question of whether the accused murdered Rafik Makaradi sometime between 6 pm on 30th May 2012 and 6 am 31st May 2012 at Lethbridge Park, or, in the alternative, committed the offence of manslaughter. Introduction 2On 26th July 2013, Bellew J found that the accused was unfit to stand trial (R v Peterson [2013] NSW 1002). Upon referral, on 2nd October 2013 the Mental Health Review Tribunal determined that the accused would not become fit to be tried during the period of 12 months following Bellew J's finding. This finding was renewed on 11th April 2014 following the Tribunal's review of the accused as required by s 46 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). 3After Tribunal's first determination, the Director of Public Prosecutions advised the court that he intended to proceed with the charges under s 19(1)(a) of the Act. The Court fixed the required special hearing to commence on 21st July 2014 before me. Neither party elected for a jury hearing. On 22nd July 2014 I ruled that I had the power to conduct the special hearing beyond 26th July 2014, the anniversary of the making of the finding of unfitness by Bellew J (R v Peterson (No 2) [2014] NSWSC 966). Special hearing 4 At the commencement of the special hearing, the accused was arraigned on an indictment presented in the following terms: On the 2nd of July 2014, the Director of Public Prosecutions on behalf of her Majesty charges that John Francis Peterson between 6 p.m. on 30th May 2012 and 6 a.m. on 31st May 2012 at Lethbridge Park in the State of New South Wales did murder Rafik Makaradi. S 18(1)(a) Crimes Act 1900 Law Part Code: 2 Signed: C. Maxwell Crown Prosecutor on behalf of the Director of Public Prosecutions. I caused a plea of not guilty to be recorded in accordance with the provisions of s 20 of the Act. The Act requires an accused person to be legally represented; his unfitness is "presumed not to be an impediment to the person's representation". Mr C Smith of Counsel appeared for the accused. In opening Mr Smith refined the issues to be determined by making five points which I summarise as follows: (1)There is no real issue that the accused, at the time of his conduct intended to cause the deceased grievous bodily harm; (2)There is no issue that the act of the accused caused Mr Makaradi's death; (3)The evidence admitted at the hearing may properly raise for my consideration the partial defences of manslaughter by provocation and excessive self-defence; (4)But the main issue would be substantial impairment under s 23A Crimes Act 1900; (5)The main thrust of the case for the accused is that my verdict should be that the accused is not guilty of murder, but on the limited evidence available, the accused committed the offence of manslaughter (s 22 of the Act). 5The main thrust of the Crown case was that at some time either late in the evening of 30th May or in the early hours of 31st May, the accused bludgeoned his friend, Mr Makaradi to death with what appears to be a wooden table leg fashioned into a bat by the application of tape to one end, like a handle. The killing occurred in the living room of the accused's home. Statement of general principles 6Before proceeding further with my reasons, I record that my determination must include the principles of law I will apply and the findings of fact on which I rely. I think it appropriate to commence with a short statement of some general legal principles germane to this case. It may be convenient, however, to identify the principles applicable to provocation, excessive self -defence, and substantial impairment later when discussing the evidence relevant to those matters. 7The basis of Bellew J's finding that the accused was unfit to plead was his undoubted mild to moderate intellectual disability. Amongst other things, his Honour accepted that this condition compromised the accused in his capacity to give instructions to counsel because of his comprehension difficulties, difficulties with hearing and problems with communication (at [22]). As I understand his Honour's judgment, he accepted evidence that "although the accused was able to provide an account of his version of events, there were significant concerns regarding his ability to instruct counsel, to make out his defence and to decide the material upon which his defence would rely". He would be unable to make informed decisions about what best to do in his own defence ([14]). 8In these circumstances I remind myself that the purpose of a special hearing is to ensure that the accused is not prejudiced any more than his unfitness already may do. Moreover, the prosecution representing the community has an interest in seeing that justice be done by being in a position to proceed with the case against the accused, who himself is given the opportunity of being found not guilty (in which event the charge will cease to hang over his head) (Subramaniam v The Queen (2004) 79 ALJR 116). I will keep in mind what the Act describes as the limited evidence available. In this particular case, it seems that I should remember that "the accused ... may have been unable to give evidence, or unable, by reason of his mental unfitness to give adequate instructions to his lawyers concerning the calling of witnesses who might assist his case, or, as to matters on which cross-examination could be based". 9Most importantly, my duty "is confined to deciding whether on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offence charged". 10If I find him not guilty of the offence charged, or of any available alternative charge, he will be released from custody back into the community. Any further treatment he requires will be given outside the criminal justice system. 11On the other hand, if I find that the accused committed the offence charged or some other offence available as an alternative, I must, in due course, indicate whether, had this been a normal trial of criminal proceedings, I would have imposed a sentence of imprisonment; and if so I must nominate my best estimate of the sentence I would have considered appropriate. This is referred to as the limiting term, which represents the maximum time the accused may be held in custody for the offence. 12The presumption of innocence is the most critical part of the criminal justice system. The accused is presumed to be innocent of the offence of murder unless, and until, the Crown persuades me beyond reasonable doubt that he committed the offence. The partial defence of substantial impairment is a central issue in these proceedings. The accused carries the onus of actually persuading me of the partial defence. But it is sufficient if he proves it on the balance of probabilities, that is that he establishes the elements of the defence as more likely than not. 13To find that the accused committed the offence of murder, I would need to be satisfied beyond reasonable doubt that the accused caused Mr Makaradi's death by voluntarily striking him a number of times with the bat, neither in self defence nor under provocation, intending either to kill him or inflict really serious personal injury. As I have said, there is no real issue that the accused intended to inflict really serious personal injury. There is no issue that the accused caused Mr Makaradi's death, or that his actions were voluntary in the relevant sense. The real issue for me to decide, if fairly raised on the evidence, is have the Crown negatived self defence on the one hand, and provocation on the other, beyond reasonable doubt. As I have said I will deal with the elements of self-defence, provocation and substantial impairment later. 14I bear in mind that in every criminal trial an accused person may or may not choose to give evidence. Here, the accused has not given evidence. There is no obligation upon him to do so. He is entitled to say nothing and make the Crown prove its case to the high standard of beyond reasonable doubt. I will not use his decision not to give evidence in any way against him. It is not an admission of guilt, or a matter capable of founding an adverse inference; nor may I speculate about what he might have said. Moreover, as this is a special hearing, I bear in mind that an unfit person may not be capable of making a reasoned decision about whether or not to give evidence and this is one sense in which the evidence at a special hearing is properly referred to as "limited". 15Much expert evidence has been called in the case orally and in report form. An expert, of course, is entitled to express opinions based upon his or her specialised knowledge. The value of those opinions is very much dependant upon whether the facts assumed for the purpose of expressing the opinion are sufficiently like the facts as I find them to be. I am not obliged to accept the opinion of any expert. Like other witnesses, I may reject the evidence especially where the facts upon which the opinion is based do not accord with the facts as I find them to be. 16In any event, there was very little difference of opinion between the experts; rather they were in substantial agreement about the only issue to which their evidence now goes. 17The only issue to which the expert evidence goes is whether at the time he struck Mr Makaradi the accused was suffering from a substantial impairment. I ought not reject it except for good reason. 18The expert evidence of Dr Duflou about the cause and mechanism of death was not seriously challenged. On the same basis, I should not reject it except for good reason. 19Each of the experts who gave evidence about the substantial impairment issue recounted the history received from the accused on which the expert relied to form his or her opinion. That material was admitted for that purpose despite the fact it is hearsay. However, the material is in and I am entitled to rely upon it, not merely as statements made to the expert upon which to evaluate his or her opinion, but also as evidence of the truth of the facts contained in those statements. I bear in mind that as hearsay the statements may be unreliable. Moreover, they were not tested by cross-examination and for that additional reason might be unreliable. However, the accounts given by the accused to the experts may well be of value unless the Crown persuades me that they could not possibly be true versions. The accused's intention 20The first question is whether the accused in striking Mr Makaradi intended to inflict grievous bodily harm. This means really serious personal injury. Intent and intention are ordinary words, the question is really by striking Mr Makaradi as he did, did the accused mean to cause really serious personal injury. 21Intention is a matter ordinarily provable only by circumstantial evidence. In a criminal case, this means I must be satisfied beyond reasonable doubt from all the circumstances established by the evidence I find acceptable that the only rational inference available is that the accused meant to inflict really serious personal injury, in this case, to Mr Makaradi. There must be no reasonable hypothesis consistent with innocence available. 22In reasoning inferentially, I am entitled, not obliged, to draw natural inferences arising from the facts themselves. An example commonly given is that if a person strikes another on the head with a hammer it is easy to infer that the first person meant to inflict really serious injury. This is clearly a similar case. 23On the morning of 31st May 2012, the accused attended the home of some other friends and informed them that he had killed his friend, Mr Makaradi. What he said exactly is relevant to some issues and I will return to it. After his report, one of his friends, Mr Hannan, took the key to the accused's place and went there. He saw Mr Makaradi lying in a pool of blood in the living room apparently dead. Mr Hannan rang triple 0 and, with his wife, persuaded the accused to accompany them to the police station. 24Photographs taken later by crime scene officers depict the scene as described by Mr Hannan. There was a lot of blood. The blood is splashed, or splattered over the living room walls and furniture. Investigating police also recovered the bat fashioned from the table leg with tape wrapped around one end. It too, had blood marks on it. 25Dr Duflou, a specialist forensic pathologist examined the body of the deceased at the crime scene and by way of autopsy. His autopsy report was admitted as Exhibit C. In oral evidence (114.5T) he said that the main injuries to the body were to the head and to the left leg. The head injuries were almost exclusively to the left side of the head. He said: There was massive injury with associated deformity of the head as a result of blunt forced application to the head. There was very wide-spread and overlapping fracturing of the skull to such an extent that the expert was unable to separate, or identify the consequences of separate blows (115.5T). He thought the time of death was closer to 9:00pm on 30th than 9:00am on 31st. 26On autopsy, Mr Makaradi's brain was found to be extensively lacerated on the left side producing bleeding over the surface of the brain. Subsequent examination by a neuropathologist demonstrated extensive traumatic brain injury (116.20T). There was also evidence of a prior stroke, which did not contribute to death. It was not possible for Dr Duflou to be certain, but the "very, very extensive skull fracturing" (117.20T) suggested more than two blows. His best estimate was of four blows to the head. 27There were four discrete blows to the left leg identifiable from separate bruises consistent with the bat. One of the blows to the leg resulted in a fracture of the fibula or "the narrow shin bone which is on the outside of the shin" (116.50T). 28Dr Duflou was of the opinion that because of the severity of the skull fracturing, the blows causing it were likely to have been inflicted when Mr Makaradi's head was on the ground. He could not exclude the hypothesis that some initial blows were struck when Mr Makaradi was erect and subsequent blows after he fell. Dr Duflou regarded this as an "entirely reasonable" scenario (120.45T). 29I regard it as having been established by acceptable evidence that the accused attacked Mr Makaradi with the bat whilst the latter was standing erect. It may well be that the first blows were struck to the leg causing him to fall when the shin bone fractured and that the head blows were struck after he fell to the floor. In all probability, 8 blows were struck in a single series delivered in rapid succession. From these circumstances, I am satisfied that the only rational inference available is that when the accused struck Mr Makaradi, he intended to inflict really serious injury upon him. 30Subject to self defence, provocation, and substantial impairment, I am satisfied beyond reasonable doubt that the Crown has proved all of the elements of murder. Self-Defence 31A person is not criminally responsible for what would otherwise be murder if the person acts in self-defence. The Crown has the legal obligation of negativing self-defence where it arises on the evidence. In a case of murder, self-defence may be either a complete or partial defence. In the present case, if it arises, it is not said to be a complete defence. Mr Smith accepts that the assault of Mr Makaradi involved excessive force. In this context only s 421 Crimes Act 1900 (NSW) is invoked. 32Had this been a hearing before a jury, my primary obligation would have been to identify the real issues for the jury and explain to them only so much of the criminal law as is relevant to the resolution of those issues. Bearing this in mind, it is sufficient that I focus on s 421. 33Ordinarily, there are two limbs to self-defence. The first necessary condition is that the accused believed bludgeoning Mr Makaradi was necessary to defend himself. The second is that the bludgeoning was a reasonable response in the circumstances as he perceived them. In a murder case, self-defence operates as a partial defence, reducing murder to manslaughter where the first condition is not negatived, but the second is. Given the issues in the present case it is sufficient for me to consider the first condition only. 34As I think Mr Smith acknowledged, however, there is a threshold issue about whether the question of self-defence arises at all in the present case. 35The Crown submitted that self-defence does not arise. 36The only matter which in any way has anything of the flavour of self-defence about it arises out of Court statements by the accused that Mr Makaradi hit or punched him first. I bear in mind the warning I have given myself about the potential unreliability of hearsay evidence of this type. 37After he told Mr Hannan that he had killed his friend the accused said "He was hitting me in the head so I hit him with the bat" (19.50T). He told Mr Hannan's wife, Ms Mata: We were drinking and I asked my friend to stay over for the night cause he was drunk. Ralph turned around and started to hit me so I started to hit Ralph (26.30T). He told Ms Mata's daughter "I've done something wrong" (29.40T). He gave a similar account as that given to her mother. He said that his friend "started to punch me in the face and mouth" and "I picked up the bat and hit him" (29.40 -.45T). 38Similar accounts were given to the various experts qualified to provide opinions in relation to his fitness to be tried and the substantial impairment issue. For instance, he told Dr Allnutt that he and Mr Makaradi were drinking at his home. Mr Makaradi suddenly punched him in the face. He could not explain why he got the bat. He said "I don't know why", "he hit me first" (Exhibit A.2, page 2). Dr Furst received a similar account. The accused told him "I don't know why I hit him. I was upset because he hit me first" (Exhibit 2, page 3). It is unnecessary to multiply references to the reports. 39Bearing in mind the Crown's onus, the potential unreliability of self-serving, out of court statements, and the limited nature of the evidence because of the accused's disability I cannot say the accused's account of the deceased striking the first blow is not possibly true. 40But it does not follow from this that self-defence fairly arises on the evidence. There is nothing in any of the evidence I have recounted that lays a foundation for finding that the accused genuinely believed that bludgeoning Mr Makaradi was necessary to defend himself, always accepting that the Crown must negative this proposition. The statement that "he hit me first" is redolent of retaliation not defence. Likewise the statement to the younger Ms Mata "I did something wrong" is not consistent with justification, even allowing for the limited understanding of the accused. 41If I were wrong to say that self-defence does not arise on the evidence, I wish to record that in any event I am satisfied beyond reasonable doubt that the Crown have negatived any reasonable possibility that the accused believed what he did was necessary to defend himself. To put it another way, I am satisfied beyond reasonable doubt that the accused did not genuinely believe that what he did was necessary to defend himself. 42Other evidence that I have not so far recounted establishes that it was in the nature of the relationship between the accused and Mr Makaradi that when they had been drinking together they would sometimes fight and come to blows. Both Ms Wilson and Mr Birks gave evidence of an occasion sometime prior to 31st May 2012 when the accused and Mr Makaradi were fighting about who owned what was left in a bottle of whiskey. They disagree about when this occurred relative to the killing of Mr Makaradi, but that is a matter of no consequence. 43A Mr Reeves gave evidence that on one occasion he witnessed the accused and the deceased arguing and pushing and shoving each other. No punches were involved (41.30T). And Mr Sells, the owner of a bottleshop where they occasionally bought liquor, recalled an occasion when Mr Makaradi and the accused were approaching his shop and Mr Makaradi was yelling abuse at the accused before punching him 3 times in the face (43.35T). The accused did not retaliate or react in any way. Mr Sells ejected them from the shop. 44Dr Stark, Director, Clinical Forensic Medicine Unit, NSW Police, examined the accused on 31st May 2012 at Mt Druitt Police Station. She found no evidence of injury of any kind about the face of the accused. This did not exclude the possibility that Mr Makaradi punched the accused (106.25T, 108.5T; 109.40T), but it tended to exclude a punch of sufficient force to knock him down, as the accused claimed. 45Taking this evidence together with the evidence I have referred to above, including that it was in the nature of their relationship that they would sometimes fight and come to blows, I am satisfied that sometimes one would get the better of the other, but on no prior occasion had the accused been unable to handle himself; it had never been necessary for him to resort to the use of a weapon. Moreover, if Mr Makaradi struck him, the possibility of which I cannot exclude, it did not involve sufficient force to inflict any actual injury. From all of these circumstances, I am satisfied beyond reasonable doubt that he did not genuinely believe what he did was necessary to defend himself. I am equally satisfied that he attacked Mr Makaradi in retaliation as a result of a loss of control. Provocation 46The present case is not covered by the amendments to s 23 of the Crimes Act effected by the Crimes Amendment (Provocation) Act 2014 (NSW) because the offence against Mr Makaradi was committed before the commencement of those provisions on 13th June 2014. (S 23(9) Crimes Act). Under the former 23 which did apply, provocation operated only as a partial defence. Again, it was for the Crown to satisfy me beyond reasonable doubt that the accused was not provoked. If the Crown fail in that endeavour the accused is not guilty of murder but guilty of manslaughter. 47The partial defence of provocation has two elements. An act causing death is done under provocation where: (a)the act or omission is a result of a loss of self-control on the part of the accused that was induced by conduct of the deceased (towards or affecting the accused); and (b)that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm upon the deceased. 48It's not necessary that the conduct of the deceased occur immediately before the act of the accused. In the present case the only potential conduct is the blow of Mr Makaradi. 49Given my findings that the possibility that Mr Makaradi struck the accused immediately before he lost control and bludgeoned him cannot be reasonably excluded, I am not satisfied beyond reasonable doubt that the Crown have excluded the first element. It is necessary therefore to consider the second element. 50The question then is whether Mr Makaradi punching the accused was not such as could have induced an ordinary person in the position of the accused to have so far lost self control as to have formed an intent to inflict grievous bodily harm upon Mr Makaradi. 51In dealing with this element, it is important to bear in mind that an ordinary person is one who has the minimum powers of self-control expected of an ordinary citizen who is sober and of the same age and consequent level of maturity of the accused. As will become obvious when I deal with substantial impairment, the accused does not have the minimum powers of self-control expected of an ordinary citizen within the meaning of the Act. His subjective susceptibility arising from his mental disability must be put to one side for the purpose of assessing the defence of provocation. Viewed from the largely objective standpoint of the "ordinary person", the response of the accused whether it was to the punch or to Mr Makaradi's decision to go home was an extraordinary one viewed against the provocative force of those events. In my judgment, no ordinary person in the position of the accused could have so far lost self-control by virtue of a punch insufficient to cause injury, and a decision to leave the accused's place and go home, to form the intent to inflict grievous bodily harm upon Mr Makaradi by bludgeoning him with the bat eight times in rapid succession. This was really a deliberate act of retaliation by the accused and I am satisfied that the Crown have excluded this second element of provocation beyond reasonable doubt. Accordingly, the accused is not entitled to have a finding that he committed the offence of murder reduced to manslaughter on this score. Substantial impairment 52The partial defence of substantial impairment by abnormality of mind is established by the provisions of s 23A Crimes Act 1900. To make good to the defence it is necessary for the accused to prove that it is more likely than not that: (a)At the time he bludgeoned Mr Makaradi the accused's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself was substantially impaired by an abnormality of mind arising from a pre-existing mental or physiological condition; and (b)The impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Both matters must be established by the accused. The first element is a mere question of fact to be decided on all of the evidence including the expert opinion of the qualified psychiatrists and clinical neuropsychologists. The second aspect requires me to make a value judgment. It is not permissible for me to defer to the opinions of experts, rather the second question must be determined by the application of the standards of ordinary, well-informed members of the community. Moreover, in deciding the second question, I am to disregard the effects of any self-induced intoxication. 53In the context of the first question, substantial means more than trivial; real, not fanciful; of substance. 54I also record for the purpose of this defence that I am satisfied on the balance of probabilities that Mr Makaradi probably hit the accused, before the accused attacked him. In arriving at this conclusion I have borne in mind what I said at [22] about out of court statements of the accused, and their potential unreliability. But I also bear in mind the disadvantage that the accused suffers having regard to his mental disability, including his difficulty in making a rational decision about whether or not to give evidence. I have heard evidence that his intellectual disability does not preclude him from lying if it suited him. Reconsidering the evidence in the light of these considerations, I remain of the view that Mr Makaradi probably "started it" by punching the accused and telling him he was leaving. The first three people the accused saw were Mr Hannan and the two Ms Matas. He told each of them that Mr Makaradi hit or punched him. In the telling, he did not hide that he had beaten Mr Makaradi with his bat. In addition to the evidence I have recounted at [40] and [41], the accused told Dr Stark, the Director of Clinical Forensic Medicine for the New South Wales police that Mr Makaradi punched him in the face (106.25T). As I have said that examination took place on 31st May. The point is, that from the earliest accounts given by him, and throughout, the accused has consistently said that Mr Makaradi hit him first. Notwithstanding his ability to confabulate, the consistency of the story in one who suffers from his difficulties is to my mind a telling point. 55Further, the contextual or relationship evidence provided by Ms Wilson, Mr Birks, Mr Sells and Mr Reeves makes it likely that such an event could have occurred. And I am satisfied that it did. 56The psychiatrists, Dr Allnutt, and Dr Furst, and the clinical neuropsychologists, Dr Hepner and Dr Pulman all agree, from their different standpoints, that Mr Peterson has an underlying condition. Dr Allnutt, in his in his report of 23rd February 2014 described the accused as suffering from an intellectual disability on the lower end of the mild range possibly in the moderate range. He said that as a consequence of his mental disability he has "an abnormality of mind" that impaired executive functioning and produced difficulties with speed of thought processing, inflexibility of thinking, problems with attention, and working memory. 57In oral testimony he said (at 48.49T): I believe he had an abnormality of mind arising out of an underlying condition. That underlying condition being a combination of two things, intellectual disability, which is a developmental lifelong condition and executive dysfunction caused by frontal lobe damage which was in my view more recent. He understood the neuropsychological evidence to be consistent with that diagnosis. It should also be added that the accused has a long history of epilepsy which is unmedicated. He has frequent seizures which may be related to the frontal lobe damage. Dr Allnutt said seizures could cause brief periods of a lack of oxygen which could cause brain damage (49.15T). 58Dr Furst's opinion was similar (Exhibit 2 page 8). Dr Furst also said, in his oral testimony at (125.15T), that the underlying condition was the combination of the intellectual disability and a broader cognitive impairment resulting from the frontal lobe damage. 59Dr Pulman, a clinical neuropsychologist, in her report of 10th June 2014 (Exhibit H page 7-8), explained that epilepsy was more prominent in persons suffering intellectual disability although the relationship between the two "is not always clear". Clinical studies of adults with intellectual disability who had epilepsy demonstrate that they have higher rates of behavioural and psychological problems than those without epilepsy. Persons suffering intellectual disability and epilepsy "were also significantly more likely to have severe or fleeting behavioural problems, with mood swings being most prominent". I accept this evidence. From her testing she described Mr Peterson's level of intellectual functioning as falling in the extremely low range, below 99.8 percent "of his same aged peers". I am also persuaded that the accused's abnormality of the mind resulting from his underlying condition resulted in the substantial impairment of his capacity to understand events and control himself at the time he bludgeoned Mr Makaradi. Probably he had the capacity for moral judgment, after all, he told the younger Ms Mata he had "done something wrong". 60Dr Allnutt and Dr Furst disagreed somewhat about the significance of the impairment of his ability to understand events. Dr Allnutt accepted that impairment, but thought he could understand the nature of the events as they unfolded on 30th or 31st May 2012. On the other hand, Dr Furst (at 126.20T) said because of the severity of his intellectual disability and frontal lobe impairment it would be "difficult for him to understand or appreciate the consequences of his actions as in, for example in this case, whether hitting the victim as alleged would lead to the very serious injuries that occurred"(my emphasis). 61Having regard to the severity of the intellectual disability, as described by Dr Pulman and Dr Hepner, and the long history of behavioural problems including problems with aggression summarised in Exhibit 5, I prefer that part of the evidence of Dr Furst to that part of the evidence of Dr Allnutt. Dr Allnutt did not really address the issue of the accused's appreciation of the consequences of his actions. 62In terms of loss of self-control, no one described the nature of the accused's problems better than Dr Allnutt. Dr Allnutt accepted that the impairment in self-control was substantial, if that word was defined as "more than trivial and of substance" (54.15T). He gave the following metaphor in oral evidence (55.10T): Like all of us we are prone to react at one point in anger to a certain situation and at one point in time it may not at another, so you've got to bear that in mind. If I could put it this way is that as a consequence of his frontal lobe damage his ability to inhibit a strong emotional response was compromised. So in simple terms his brake pads were eroded so he had more difficulty to put on the brakes than you and I might have and that difficulty was probably also compounded by his disability but not necessarily. He went on to say (55.20T): In his case if we said that he felt anger by what he perceived as something that was an affront to him and then erupted with rage, his ability to inhibit that was diminished by virtue of his executive dysfunctional frontal lobe damage more than trivially. I accept this evidence. 63This leaves the second question. Before answering it, I think it worth considering the evidence in relation to intoxication as I am required to disregard the effects of self-induced intoxication on his impairment when deciding the second question. 64It seems to me that it is for the accused to satisfy me on the balance of probabilities either that he was not intoxicated in the relevant sense, or if he, was what effect that had on his impairment. There is no doubt that Mr Makaradi was very intoxicated. His blood alcohol reading was 0.277. The accused told Dr Stark (Exhibit B [4.5]) that he and Mr Makaradi "had shared most of a standard bottle of whiskey with coke" on the night Mr Makaradi was killed. Some alcohol had been left in the bottle. Blood tests taken later on 31st May 2012 from the accused were negative for alcohol but positive for cannabinoids. Nothing in Dr Stark's written or oral evidence suggested that she noticed anything of the after effects of severe intoxication on the part of the accused. So far as the cannabinoids were concerned, Dr Duflou said that the pathology results demonstrated that the accused had used cannabis "in the prior week to weeks" (119.7T). I infer that cannabis is metabolised at a much slower rate than alcohol. From this evidence I would not infer that he was intoxicated by cannabis at the time he killed Mr Makaradi. 65The accused told Dr Allnutt that prior to striking Mr Makaradi he had consumed "about 4 cups of whiskey and coke". Dr Pulman received a history that Mr Makaradi had shown up with a bottle of whiskey but received no history of how much the accused had consumed. The accused told Dr Allnutt that he had been drinking with Mr Makaradi between about 10 pm and midnight and estimated he had drunk about 4 to 5 whiskeys and coke and did not feel intoxicated. The accused said Mr Makaradi was drinking the whiskey straight and he also explained that he was concerned about Mr Makaradi leaving to go home because Mr Makaradi was drunk. 66From this evidence, although I am satisfied that the accused had taken some alcohol, the quantity involved is not so great as to have any significant effect on his substantial impairment due to the abnormality of mind caused by his underlying condition. 67Dr Allnutt said that the impairment in terms of his capacity to control himself was substantial, independent of intoxication by substances, "alcohol or otherwise" (68.25T). 68Dr Furst said that he assumed the ingestion of alcohol made no difference at all to his opinion about the accused suffering from substantial impairment because (128.35T): ... the intellectual disability he suffers from and the epilepsy are both longstanding conditions present from early life, irrespective of alcohol intoxication. ... [the] neuropsychological testing conducted after his arrest was in the absence of alcohol, and both tests by Dr Hepner and Susan Pulman revealed the global impairment which I relied on to form my opinion. 69I am satisfied that a degree of intoxication by alcohol would not have added materially to the accused's impairment, or the seriousness of it, at the time of his assault on Mr Makaradi. 70I remind myself that the second question is whether the accused's impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Counsel were divided about the nature of the inquiry. Learned Queens Counsel for the Crown argued that the focus was on the expression "so substantial". The question was about the magnitude, or perhaps seriousness, of the impairment of the mental capacity of the accused. Mr Smith argued that the second question was a single expression of a composite idea. The seriousness of the impairment was clearly relevant but a broader inquiry was called for. Both counsel relied on the analysis of Johnson J in Potts v R [2012] NSWCCA 229 at [33] and the authorities his Honour considered. 71Omitting citations Justice Johnson said: It has been said that the issue under s 23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad commonsense way, involving a value judgment by the jury representing the community, and not a finding of medical fact:. It is often put to juries ... that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: .. In R v Majdalawi, Adams J observed... that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question". I observe that to warrant the reduction in legal liability it is not enough that the impairment is substantial, something more is required. The impairment must be "so substantial" before the reduction is warranted. Another way of putting this may be that the impairment is substantial enough to warrant the reduction. 72This statutory language makes it natural to consider the seriousness of the impairment of the accused's mental capacity. But as the second question is not a medical question, that consideration cannot be of decisive importance. The question is about whether legal responsibility for the most serious crime of murder should be attributed to the accused. Seriousness of his condition is of central but not necessarily decisive importance. 73As the inquiry relates to the appropriate level of culpability other considerations are relevant. For instance, it is relevant to consider the effect of his impairment on his actions. The decision in Potts demonstrates that merely having an undoubted underlying condition which produces relevant impairments will not suffice unless those impairments were operative at the time of the offending; that is to say, unless the impairment explains in a significant way what happened. Clearly the impairment need not be total for that would constitute the mental illness defence. Partial mental incapacity is sufficient, but the extent necessary to reduce the legal liability of the accused is a matter for judgment. 74Moreover, in my opinion, the value judgment is not entirely at large. The decision involves normative considerations and the relevant legal norms must be derived from legal principle. One of the norms the statute embodies, derived from the criminal law generally, is that frequently, but not always, the criminal acts of the mentally ill or mentally disabled, justify less severe punishment than the criminal acts of persons of ordinary mental capacity. (cf Travel Compensation Fund v Tambree (t/as R Tambree and Associates) [2005] HCA 69; (2005) 224 CLR 627 at 639 [28] - [29] per Gleeson CJ). 75Applying these principles and disregarding the effect of the alcohol he had drunk, I am persuaded that the accused's impairment was so substantial as to justify reducing his criminal liability from murder to manslaughter. 76I am persuaded by the evidence I have recounted at [59] to [65] that, in lay terms, the accused's impairment was severe; particularly in his appreciation of the consequences of his actions, and his capacity for self-control. This severe impairment results from the combination of his mild to moderate intellectual disability, a lifelong disability in his case, and the frontal lobe damage, probably resulting from the affects of his unmedicated epilepsy. It is worth bearing in mind Dr Pulman's evidence that the accused's level of intellectual functioning falls in the extremely low range, 99.8 per cent of mature persons function at a higher level than him. 77The commission of the offence involved no planning or premeditation. It was a spontaneous attack without any thought at all to the consequences. The attack consisted of a series of blows lasting no more than a few seconds. His inability to control himself and his lack of appreciation of the consequences of his actions were the direct result of his substantial impairment. Applying the norms of the criminal law, which the statute embodies, as serious and severe as the attack was, his moral culpability is greatly reduced. Were this a normal criminal trial, I think the appropriate verdict would be manslaughter by reason of substantial impairment. Verdict 78The accused is not guilty of murder. On the limited evidence available, the accused committed the offence of the manslaughter of Rafik Makaradi on 30th May 2012. ********** 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: 08 August 2014