IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2021 0113

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v		
		
JEFFREY CARDWELL	Accused	

---

JUDGE:	Lasry J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 December 2021	
DATE OF JUDGMENT:	14 December 2021	
CASE MAY BE CITED AS:	DPP v Cardwell	
MEDIUM NEUTRAL CITATION:	[2021] VSC 832	

---

CRIMINAL LAW — Murder — Accused charged with common assault, property damage, theft and attempted murder — Whether defence of mental impairment available — Accused suffering from chronic psychotic illness, most likely delusional disorder — Acute psychotic episode at time of the offending — Psychiatrists  both gave evidence that mental impairment defence open in this case — Verdict of ‘not guilty by reason of mental impairment’ recorded — Section 41 report and section 47 certificate ordered — Accused remanded in custody — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 20, 21, 23, 41 and 47.

---

APPEARANCES:
	Counsel	Solicitors	
For the Crown	Ms Stephanie Clancy	Office of Public Prosecutions	
			
For the Accused	Mr Lucien Richter	James Dowsley & Associates	

HIS HONOUR:
Introduction
1	On 6 December 2021 in this Court, the accused, Jeffrey Scott Cardwell, pleaded not guilty to three charges of common assault, one charge of damaging property, one charge of theft and two charges of attempted murder, all of which are alleged to have occurred on 29 August 2020 at Rosebud and Capel Sound.
2	The accused’s pleas of not guilty are made on the basis that, at the time of the events giving rise to these charges, he was suffering from a mental impairment such that whilst he knew the nature and quality of his conduct, he was unable to reason with a moderate degree of sense and composure, as perceived by reasonable people, that the conduct was wrong.
3	The prosecution and counsel for the accused agree that the written evidence filed with the Court and the viva voce evidence given at the hearing of this matter establishes the defence of mental impairment.  Pursuant to s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the ‘Act’), this matter has proceeded before me, a trial judge sitting without a jury.  That section enables me, as the trial judge, if satisfied that the evidence establishes the defence of mental impairment, to direct that a verdict of not guilty because of mental impairment be recorded.  If I were not so satisfied, then the accused would then be tried by a jury.
Circumstances of offending
4	At the time of these offences, the accused was 48 years of age.  He had no fixed address.  During the early hours of Saturday the 29th of August 2020, he was in the Rosebud area on the Mornington Peninsula. 
5	At about 4:10am, Damian Walters was standing near 7-Eleven on Point Nepean Road in Rosebud.  Mr Walters had just finished a cigarette when he was approached by the accused.  The accused was shouting and said to Mr Walters ‘It's not your night cunt.’ and attempted to punch him with his right fist.  The accused said ‘It's not your night cunt’ a further three times.  Mr Walters ‘squared up’ to the accused and said, ‘What have I fucken done?.’
6	The accused then reached down to his ankle, lifted his trouser leg and showed Mr Walters a knife which he had concealed underneath his clothing.  Mr Walters then attempted to distract the accused by pointing down the street.  Mr Walters then ran away in the opposite direction up Point Nepean Road. 
7	The accused then walked away down a side street.  Mr Walters returned to 7-Eleven and told the attendant Arshdeep Singh what had occurred asking that he call police.  Mr Walters then retrieved his bicycle, which was parked around the rear of the 7- Eleven and rode home.  Mr Singh called 000. 
8	A short time later, the accused returned to the forecourt and threw an object at the front glass window of 7-Eleven.  This window did not break.  The accused left and quickly returned.  He approached a Ford Falcon sedan belonging to Michael Wood which was parked in front of the air pressure machine at 7-Eleven.  He used the knife to stab the two offside tyres of the vehicle.
9	Mr Singh called 000 again.  Mr Walters returned to the scene armed with a golf club to protect himself.  Mr Walters saw movement near the Rosebud Memorial Hall, over the road from the 7-Eleven.  The accused ran at Mr Walters who retreated towards the 7-Eleven.  The accused stopped on the side of Point Nepean Road and walked away from the scene.
10	These incidents were captured by CCTV cameras located at 7-Eleven.  Police attended and Mr Walters alerted them to the accused’s location.  The accused was arrested and the knife was located nearby.  Police activated their body worn cameras and the accused was interviewed at the scene.  He stated that the reason he was in possession of a knife was for self-defence and that he was being chased by an unknown person.  He was taken to Rosebud Police Station where he was further interviewed and released.
11	Following his release, the accused attended at 464 Eastbourne Road, Capel Sound, a vacant holiday house owned by Phillip Byron.  This address was previously tenanted by a female named Joanne McDonald, with whom the accused had been in a relationship about 20 years ago.  The accused had visited Ms McDonald at this address about four years previously, however she no longer lived there.
12	The interior of the house had been gutted during renovation and consisted of some shelving with tools present.  The accused entered the house and stole a green handled tomahawk belonging to Mr Byron.  He then left the property.
13	The tomahawk was about 39 centimetres in length.  The blade was seven centimetres.  The head was 12 centimetres long and three centimetres wide.  The accused then went to Rosebud Plaza on McCombe Street in Rosebud armed with the tomahawk.
14	At about 10:15am, Jason Briers had been shopping at Coles and was walking north along the footpath next to the shops on the eastern side of Rosebud Plaza.  He was having a conversation on his mobile phone with his manager.  Meanwhile, the accused was walking from the carpark area onto the footpath and began walking south.  Both men were about to pass each other outside the Australia Post Shop, when the accused produced the tomahawk from inside his jacket.  The accused raised the tomahawk and attempted to strike Mr Briers in the head.  Mr Briers managed to stop the tomahawk hitting him and dropped his mobile phone. 
15	Mr Briers then ran away towards the carpark and screamed for help.  The accused chased him, swinging the tomahawk and trying to strike him.  Mr Briers thought he was going to be killed.  The accused caught up to Mr Briers who tried to grab the tomahawk.  There was a struggle between the two men.  The accused regained control of the tomahawk and struck Mr Briers several times with the weapon before Mr Briers fell to the ground on McCombe Street at the entrance to the carpark.  The accused then continued to attack Mr Briers, striking him to the head with the tomahawk a number of times using a chopping motion.  Mr Briers observed that the accused’s face was ‘monotone’ throughout the attack. 
16	Witness Grant Perry was standing nearby and yelled several times at the accused to stop.  The accused did stop, looked at Perry and walked towards him in a threatening manner.  Mr Perry walked towards the entrance to Coles to try and get the accused away from Mr Briers.
17	The accused left Mr Briers laying on the ground and walked back through the carpark area.  He walked north along a roadway area within the carpark.  Mr Perry then called 000 and assisted Mr Briers.  Other people nearby also assisted.  Another witness, Christopher Stockdale, had parked his vehicle and was standing a short distance away from Mr Briers when the accused walked towards him carrying the tomahawk.
18	The accused walked past Mr Stockdale and muttered something to the effect of ‘morning’, glanced at Mr Stockdale and said ‘I finished that cunt.’  Mr Stockdale immediately got back into his car and locked the door.  Meanwhile, Peter Clements was driving his Ford Falcon sedan north along the same roadway area.  The accused crossed to the eastern side of the carpark roadway and as Mr Clements slowly approached, the accused struck the driver’s side of the vehicle’s windscreen with the tomahawk.  This caused an axe blade indentation to the windscreen and sprayed fragments of glass onto Mr Clements.  Mr Clements feared for his safety and he kept driving to the carpark exit.
19	The accused continued to walk towards McCombe Street where he turned left and walked west along the roadway area.  He approached a taxi driven by Harvir Singh which was parked on the southern side of the roadway in the taxi zone.  Mr Singh was standing outside the vehicle when he saw the accused approaching with the tomahawk.  Mr Singh quickly got into his vehicle and locked the door.  The accused approach the driver’s side door and struck the window with the tomahawk, breaking the glass.  Mr Singh was showered with fragments of glass.  
20	The accused continued walking west along McCombe Street on the road area whilst holding the tomahawk in his right hand.  He concealed the tomahawk under his jacket and moved onto the footpath area outside the front of Rosebud Plaza.  Gerard Hayes was approximately 100 metres away from the accused.  The accused saw Mr Hayes and took the tomahawk out from underneath his jacket.  The accused walked up to Mr Hayes, swung the tomahawk from his hip, over his head and then straight down onto the top of Mr Hayes’ head causing him to fall face first onto the ground.  Witnesses thought that Mr Hayes was dead.  Mr Hayes has no memory of the incident.
21	Several people in the vicinity went to the aid of Mr Hayes and assisted him.  There were several members of the public present in the area at the time at the time who witnessed the incidents, including children.  They were terrified by the accused’s conduct.  Several people called 000.  The incidents were captured by CCTV cameras located at Rosebud Plaza.  The accused put the tomahawk back under his jacket and continued walking on the eastern footpath in McCombe Street at the front of the Rosebud Plaza.  He turned left and walked south along Boneo Road and then left again and walked east along Maysbury Avenue.  He discarded the tomahawk in a garden area.  He then walked back to McCombe Street. 
22	Police arrived response to the 000 call.  They located the accused on McCombe Street and arrested him at 10:25am.  Ambulance paramedics also arrived and treated Mr Briers and Mr Hayes.  Mr Briers was taken by ambulance to The Alfred Hospital.  He was found to have suffered the following injuries:
(a)	a fractured skull; 
(b)	a laceration to his head (associated with the skull fracture); 
(c)	a laceration to his forearm;
(d)	acute psychological trauma.
23	Mr Briers underwent surgery to repair the fracture to his skull and to treat his wounds.  Post-surgery, he underwent rehabilitation including psychiatric treatment and occupational therapy.  He was discharged on 31 August 2020.  Mr Briers was admitted to the Frankston Hospital Emergency Department on the 5 November 2020.  He was subsequently admitted to the Psychiatric Planning and Assessment Unit where he was diagnosed with Post-traumatic stress disorder.  He underwent treatment and was placed on medication.
24	Mr Briers was discharged from the unit on the 10 November 2020 and referred to outpatient treatment via community mental health services.  He was discharged from those services on 16 December 2020.  He received trauma-specific psychotherapy post discharge.
25	Mr Hayes was taken by air ambulance to The Alfred Hospital.  He was found to have suffered an open depressed right parietal skull fracture with associated underlying subarachnoid haemorrhage and right frontal intraparenchymal haemorrhage.  He underwent a craniectomy and removal of the depressed skull fracture and evacuation of the intraparenchymal haematoma.
26	Following his surgery, Mr Hayes developed fevers and was treated with antibiotics.  He experienced left hemiparesis (paralysis to the left side of his body) and was transferred to Frankston Hospital for ongoing care and rehabilitation on 9 September 2020.
27	Upon arrival at rehabilitation, Mr Hayes was suffering from numerous issues associated with his traumatic brain injury and required intensive nursing and allied health support.  The issues were as follows:
(a)	left side hemiparesis;
(b)	cognitive impairment;
(c)	impulsivity;
(d)	agitation. 
28	Mr Hayes underwent two months of inpatient rehabilitation and his physical, functional and cognitive status improved.  He has ongoing issues associated with his brain injury and impairment to his left sided upper and lower limbs requiring the use of a four wheel walker or a single point walking stick.  He also uses a manual wheelchair for longer distances.  He will require ongoing community based physiotherapy and occupational therapy.  He also suffers from ongoing psychological issues associated with the traumatic nature of his injuries.
29	Harvir Singh suffered from bruising and scratches to his right upper arm.  He did not seek medical treatment.
Record of Interview
30	After his arrest, the accused was taken to Rosebud Police Station where he was interviewed.  At 12:14pm, the interview commenced and was suspended at 12:17pm pending further enquiries by police. 
31	Police requested an assessment be conducted regarding the accused’s fitness for interview by Dr Jo Parkin, Clinic Forensic Medicine Physician from the Victorian Institute of Forensic Medicine.  The accused refused to participate in an assessment.
32	Shortly prior to the interview recommencing, the accused was in the presence of Detective Senior Constable Rodney Eaton and Senior Constable Casey Tyler, when the following conversation occurred:
Accused ‘Can I just ask you a straight up question?’
D/S/C Eaton ‘Yes.’
Accused ‘Are they dead?’
D/S/C Eaton ‘No.’
Accused ‘Damn. At least one of them?’
D/S/C Eaton ‘No.’
Accused ‘Damn.’
33	At 1:42pm, the interview recommenced.  The accused stated that prior to the alleged offences, he had been on the Mornington Peninsula for 48 hours.  Prior to that, he had been in the Toorak area for approximately four and a half weeks.  He stated that he feared for his safety, his life and his wellbeing in custody.  He otherwise gave ‘no comment’ answers when the allegations were put to him.  At 1:55pm, the interview was suspended.  At 2:10pm, the interview recommenced.  The accused repeated that he still feared for his safety and wellbeing whilst in custody.  When asked why, he stated ‘I believe there’s associates and/or affiliates of outlaw motorcycle gangs in this station.’  He also stated ‘And I’ve seen outlaw motorcycle gang tattoos on officers here at this station, which is why I’m fearing for my life.’  He continued to answer ‘no comment’ when the allegations were put to him.  The accused was then charged and remanded in custody.
Evidence and submissions
34	The accused has pleaded not guilty to all charges on the basis that at the time of engaging in the conduct constituting the alleged offences, he was suffering from a mental impairment that had the effect that he did not know that the conduct was wrong.  
35	Reports addressing the availability of a mental impairment defence were obtained from Dr Nicholas Owens, Consultant Forensic Psychiatrist (filed on behalf of the accused) and Dr Prashant Pandurangi, Forensic Psychiatrist (filed on behalf of the prosecution).  Both Dr Owens and Dr Pandurangi gave evidence before me.
36	Dr Nicholas Owens, in his report dated the 10th of February 2021 offered the following opinion about the accused.
[82]	There is strong evidence that Mr Cardwell has been suffering from a chronic psychotic illness for several years.  This may be a delusional disorder, given that the features of the illness consist predominantly of systematized persecutory delusions centring on the hostile intentions of bikie gangs towards him, and his interpretation of multiple unconnected events in light of these delusions.  It appears as though his life has been dominated by the impact of these delusions on his decision-making, including his living arrangements, and he has moved around Australia over several years in an attempt to escape his persecutors.  The differential diagnosis is paranoid schizophrenia. 
[83]	Mr Cardwell has a lifetime history of substance use disorder.  At different stages of his life this has encompassed heroin, stimulants and alcohol.  It is likely that he has also met criteria for pathological gambling at stages in his life.  It is possible that use of stimulants in the last few years has worsened his psychotic illness, perhaps making his delusional beliefs more intense and pervasive. 
[84]	There are also good grounds to suspect that Mr Cardwell has some traits of an antisocial personality disorder.  This is based on his history of physical aggression (including a past conviction), difficulties sustaining relationships, an established criminal history, problems with anger and impulsivity.  His description of his behaviour in school is suggestive of a possible conduct disorder at that age. 
[85]	Developmentally, Mr Cardwell appears to have grown up from a background characterised by interparental disharmony and by his own account suffered physical and emotional abuse from his mother.  As a young teenager he lost his sister to cancer and seems to have associated her death with a sense of personal guilt which has by his own account been a persistent source of emotional pain for him.  His initial period of offending may have been associated with an opiate use disorder, but there appears to have been a significant period of time without offending during which he has tried to achieve some degree of work and relationship stability.  In the last decade or so of his life, it seems that his decisions and choices have been increasingly related to his worries about bikie gangs.
[86]	The offending appears to be directly related to his paranoid delusions.  There does not appear to be any other motivation behind his behaviour at the material time, behaviour which took place (mostly) in broad daylight in a crowded area.  There is evidence from his conversations with prison based mental health staff as well as the team at Thomas Embling Hospital, and my own assessment, that Mr Cardwell continues to believe his delusions, although he is starting to question them somewhat with the passage of time.  At the time of the offending, Mr Cardwell was under the apprehension that his life was in mortal danger, and that even the police could not afford him protection because they were working in cahoots with his persecutors.  I think that the strength of his delusions was such as to distort his thinking and sense of moral reasoning to the point that he thought that he had no choice but to defend himself against his persecutors by inciting an attack on people who he thought were imminently intent on killing him. 
[87]	There is one piece of evidence in the collateral information to suggest that Mr Cardwell had consumed a bottle of spirits prior to the offence.  However he denied this to me, and there is no evidence that he was affected by other substances at the time of the offending.  Even if this was the case, the protracted duration (and persistence, even with treatment) of his delusions and their very direct connection with his behaviour, would suggest that they are the primary psychopathological element fuelling his offensive motivation, and any substance use would have acted as a disinhibiting trigger.
[88]	On this basis, I would support a defence of mental impairment in this case.  I think that Mr Cardwell was able to determine the nature and quality of his actions, but he was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his actions because he was suffering from persecutory delusions which had the effect of skewing his perception of the intent and motivation of people around him.
37	In his evidence, Dr Owens confirmed the opinion he had expressed in his report.  He said the condition the accused suffers from is chronic and, without treatment, it will continue.  He said the understanding the accused had of right and wrong at the time was distorted because of his paranoid delusions.  Any history of the accused abusing stimulants or substances would make the condition worse.
38	Dr Prashant Pandurangi, engaged on behalf of the Director of Public Prosecutions, prepared a report on 31 of August 2021 and offered the following opinion: 
[57]	I have considered the availability of a mental impairment defence as set out in section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.  At the time of the alleged offending, Mr Cardwell was suffering from an acute psychotic episode, most likely a deterioration of the underlying delusional disorder.  In my opinion, a delusional disorder would be considered a mental impairment and would satisfy the concept of the disease of the mind, within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
[58]	As noted earlier, there is ample evidence, from his own account and the collateral information, to suggest that Mr Cardwell was acutely psychotic at the time of the alleged offending.  In my opinion, he would be aware of the nature and quality of his conduct, that he was assaulting the victims, which he indicated was his intention.  However, his conduct, in attacking the unfortunate victims, was entirely driven by underlying delusional beliefs that he was being followed by people from the “bikies gang” and his life was in imminent danger.  The alleged incidents occurred in full view of the general public and Mr Cardwell made no attempts to escape from the scene.  So, in his moral barometer, his actions were entirely justified, and he would have been unable to reason with a moderate degree of sense and composure, as perceived by reasonable people, that his conduct, in assaulting the victims, was wrong. In other words, there is no indication to suggest that he would have engaged in that conduct, if he was not suffering from florid psychotic symptoms, or there is any other discernible motivation which explains the alleged offending. So, I believe a mental impairment defence is open to Mr Cardwell, for his current charge. Ultimately, this is a matter for the Courts to determine, rather than the Expert Witness.
39	Dr Pandurangi’s evidence on the hearing coincided with that given by Dr Owens concerning the non-bizarre delusion suffered by the accused.  Quite simply, Dr Pandurangi said that without this delusion, the accused would not have committed the offences.  Whilst the accused was extremely aware of the nature and quality of what he was doing, he could not reason as to the wrongfulness of his conduct.  The delusion disorder satisfied DSM 5 criteria.
40	Having regard to the opinions of both experts, the prosecution and defence were agreed that the evidence establishes the defence of mental impairment.
Conclusion
41	In all those circumstances, I am satisfied on the evidence before me that, at the time that the offending was committed, the accused was suffering from a mental impairment such that, at least, he did not know what he was doing was wrong, pursuant to s 20(1)(b) of the Act.
42	I am satisfied on the balance of probabilities that that was so and that I should therefore direct a verdict of ‘not guilty by reason of mental impairment’ be recorded in respect to the charges on the indictment, pursuant to s 21(4) of the Act. 
43	I also declare pursuant to s 23(a) of the Act, that the accused is liable to supervision under Part 5 of the Act.  I order that a report pursuant to s 41 of the Act and a certificate of available services pursuant to s 47 of the Act be provided to the Court.
44	Pursuant to s 19(1)(c) of the Act, I order that the accused be remanded in a prison pending the s 41 report and s 47 certificate being provided to the Court as I am satisfied that there is no practicable alternative in the circumstances.