On 14 April 2023 Jordan Fineanganofo fatally stabbed NSW Paramedic Steven Tougher in a carpark at Campbelltown McDonalds.   This event ended 2 days of conduct by Fineanganofo that included acts of intimidation, damage to property and violence directed to people that were unknown to him.   On 8 November 2024 Justice Davies sitting in the NSW Supreme Court held, in R v Fineanganafo (No 1) [2024] NSWSC 1400, that Fineanganofo was not criminally responsible for his actions on these days.

The legislative scheme

The old defence of insanity has been replaced by provisions in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).  That Act provides (at s 28) for a defence of mental health impairment or cognitive impairment. The section says:

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).

Where the defence is made out the court returns a ‘a special verdict of act proven but not criminally responsible’ (ss 30 and 31).   That verdict may be returned by a jury (s 30) or a judge where both the prosecution and the defence agree that the evidence establishes the defence applies (s 31). 

Mr Fineanganofo’s case

This was a case where mental health professionals consulted by both the prosecution and the defence agreed that Fineanganofo ‘understood the nature and quality of his acts but did not know that the acts were wrong’ that is he could not ‘reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong’ ([104]).  The psychiatrist who examined the accused on behalf of the Crown said (at [105]):

Mr Fineanganofo was acutely psychotic and this caused him to be preoccupied with and act in response to intense auditory hallucinations, likely passivity phenomena (thought insertion), disorganised thought processes and persecutory delusions of demons controlling his behaviour. Collateral information is consistent with a person experiencing a relapse of psychosis due to schizophrenia. The intensity of the symptoms Mr Fineanganofo reported and appeared to be experiencing caused him to appear in a trance (likely due to internal preoccupation), incongruent in affect and odd. It is likely he was acting in response to symptoms, but also incapable of coherent and logical thought processes such that he could reason with composure about his actions at the time.

The psychiatrist who examined him on behalf of the defence said ([106]):

He was probably aware of the physical nature of his actions in stabbing another person, despite his disorganised thinking and evolving delusional beliefs. However, at the time of the offence I believe he was deprived of the ability to recognise that his actions were morally wrong, or to reason with any measure of sense or composure about the wrongfulness of his actions.

Where the parties are in agreement that the criteria for the defence are established a judge is required to conduct an inquiry to determine if, ‘after considering that evidence, is satisfied that the defence is so established’ (s 31(c)).

The inquiry

The decision the subject of this report was the outcome of that inquiry.  The first step was to consider the evidence that proved Mr Fineanganafo did in fact do the things alleged. This was not in doubt and was also supported by video evidence. His Honour was (at [111])  ‘satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offences’ alleged.

At the time of the killing, Mr Fineanganofo was reported to have said either “I’m going to gaol anyway, I may as well kill him” or, “I’ve gotta kill him because I’ve gotta go to gaol” ([107]). The judge, and the psychiatrists, considered wiether these words indicated that he did know that his actions were wrong. Dr Eagle, the Crown’s consulting psychiatrist said (at [108]):

Mr Fineanganofo may have appreciated he could be subject to legal sanctions for his conduct, such as incarceration, but felt compelled to engage in the conduct on the basis of distorted reasoning due to a delusion that the victim was demonic, or auditory hallucinations ordering him to kill, combined with an inability to reason due to disorganised and distorted thought processes. He was not able to reason as to the moral wrongfulness of his behaviour which was driven by distorted beliefs, disorganised thinking and auditory hallucinations.

Dr Nielssen, the psychaitrist consulted on behalf of the defence, said (at [109]):

The words uttered by Mr Fineangonofo would appear to indicate some awareness of the legal situation and that his actions would be considered to be punishable by law. However, the symptoms of an acute episode of psychosis described by Mr Fineangonofo, confirmed by the other information that is available, were accompanied by gross impairment in the capacity for logical thinking and in the ability to regulate his emotional responses, which in turn deprived him of the ability to consider the potential consequences of his actions with any measure of sense or composure. I concur with the opinion of Dr Eagle, that the homicide offence was a direct result of the effect of symptoms of mental illness, and was not due to a callous disregard for the potential consequences, and that his reported remarks at the time of the offence did not indicate the presence of some capacity to consider the moral wrongfulness of his conduct.

The evidence was unanimous, Mr Fineangonofo was suffering from a ‘mental health impairment … that had the effect that … [he] could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong.’ The judge however had to come to his own conclusion on whether the defence was made out (s 31(c)). His honour said (at [115]-[120]):

In my opinion, there is no evidence that casts any doubt on the opinion of the psychiatrists that the accused suffered from a mental health impairment. I accept their opinions and find that the accused was suffering from a mental health impairment at the time he carried out the physical acts constituting counts 1 to 6.

The psychiatrists both hold the opinion that the accused did not know his acts were wrong. It is necessary, however, to consider what the witness remembered the accused saying at the time of the stabbing of Mr Tougher. It may be accepted that whichever of those remarks … was made it might lead to a conclusion that the accused knew that what he was doing was wrong.

However, both psychiatrists had the first of those remarks specifically drawn to their attention with a request for a further assessment on the issue of whether the accused knew that what he was doing was wrong. In the case of Dr Eagle a separate report was sought in case it was found that the second of the remarks was made rather than the first. The supplementary reports of the psychiatrists explain why they did not change their opinion notwithstanding the making of the first of those remarks. Their explanations were the same, namely, that the accused was grossly impaired in his capacity to think and reason in a logical way.

… The substance of the second of those remarks did not differ from the former of the remarks in the context of considering whether the accused knew that his actions were wrong. If anything, the latter remark suggests less of a realisation of wrongdoing, and more that he was compelled to do something. This may hark back to what was noted in the PACER assessment that he acts on the voices he hears and is unable to stop himself.

In circumstances where the experts’ explanations for their opinion in that regard are, in substance, the same, and there is nothing else to suggest that that opinion should have doubt cast on it, I consider that I ought to accept their opinion that, notwithstanding what the accused said, he did not know that his actions were wrong.

For those reasons, I accept the psychiatric evidence on the balance of probabilities that the accused suffered from a mental health impairment and that such mental health impairment had the effect that the accused did not know that his acts were wrong in respect of each of the counts.

What next?

That is not the end of the matter. Having returned a special verdict (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 33:

… 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.

If no order is made for the defendant’s unconditional release (s 33(c)) then the defendant must be referred to the Mental Health Review Tribunal (s 34). 

Whilst the judgement does not set out any orders made, I infer that Mr Fineanganafo remains in custody. There will no doubt be further evidence led to establish the appropriate outcome and orders will be made ensuring his continued detention and treatment until his release is authorised by the Mental Health Review Tribunal (ss 69-155).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.